Horne v Horne
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Sullivan |
| Judgment Date | 12 March 2009 |
| Neutral Citation | [2009] EWCA Civ 487 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/0101 |
| Date | 12 March 2009 |
[2009] EWCA Civ 487
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE CORRIE)
Before: Lord Justice Thorpe
and
Lord Justice Sullivan
Case No: B4/2009/0101
Mr B Sefi (instructed by Blake Lapthorn) appeared on behalf of the Appellant.
THE RESPONDENT APPEARED IN PERSON.
Lord Justice Thorpe:
This is an appeal from the order of HHJ Corrie. It reflects a judgment that he handed down on 8 December 2008 in the Oxford County Court after a one-hour hearing on 4 December. Permission to appeal was given by the judge himself. He said that there was a point of general principle and importance in the development of the substantive law. He pointed to the fact that there was a tension between the need for certainty in litigation and the general collapse of the financial market, which was going to impact on a large number of specific cases. Secondly he said that the case of Heard v Heard might be said not to fit comfortably with other reported cases in this area.
Let me turn to the background. Mr and Mrs Horne separated in November 2006 and their post-breakdown finance was the subject of a judgment delivered by District Judge Gatter on 14 November 2007. The order that resulted provided for the husband to retain the family business on the basis that the wife should transfer her interest in the shareholding in the company to him. The wife was to take the final matrimonial home, supplemented by a lump sum of £180,000. The object of the District Judge's scheme was to bring the parties to financial equality. It is important to note the detail of the husband's obligation to pay the sum of £180,000. It appears in paragraph 4 of the order. It is to this effect:
“A lump sum of £180,000 by instalments as follows:
a) £100,000 on the date of completion of the sale of the former matrimonial home; and
b) £80,000 on 14 May 2008 or date of completion of the sale, whichever is later.”
This approach to equality was not one that the District Judge herself would naturally have adopted absent the submission of the parties. I take up a citation from her judgment at paragraph 47 to this effect:
“However, both parties are absolutely adamant that they do not want that to happen. Mr Horne is taking what the wife's counsel calls the 'liquid risk-bearing assets' and Mrs Horne the 'liquid non-risk-bearing assets'. I am not really being given the opportunity to divide like with like. I do take on board that the company on the face of it is illiquid and certainly while it continues in that there is then an argument for treating it differently. On the other hand it is valued by its assets only and the main asset is that. There is therefore unlikely to be much risk in that valuation. This is not a valuation done on profit where it is subject to the profits going up or down. I hope that the company will continue, as I said, because it provides not only an income for Mr Horne but also their son. I have to accept that it may have to be sold. In these rather strange circumstances where the parties do want it dealt with in this way, I think that therefore it is treated as a liquid asset. In effect both parties agree that they should be treated equally and Mr Horne has to accept that it is a company not at the moment making a profit and valued on its assets only and therefore it could be sold. I therefore propose to divide the non-pension assets broadly equally after payment of the debts”.
That rationalisation is of considerable significance when we come to weigh the merits of the present appeal.
The implementation of the order not surprisingly led to difficulties. The husband, as the District Judge had noted, had been trading unprofitably in 2004, 2005 and 2006, accumulating what the District Judge described as huge losses. The District Judge noted that the husband was struggling to turn the business round and concluded this aspect of the evidence by saying:
“Presumably the company has been surviving on its reserve funds from the good years and there comes a time when that runs out. I think that time has probably been reached. The husband does, though, hope to be able to continue to turn this around and he is hoping to turn it into profit. He thinks that he can cut further back on truck racing although it has to be said that he has cut down on the cost of that this year as well.”
That second citation from the judgment of the District Judge also bears strongly on the outcome of this appeal.
The difficulties in implementation have of course flowed from the general economic decline that has besieged our economy and most other affluent world economies. So the wife applied in August to enforce and the husband applied on 28 August for the variation of certain undertakings. The husband's notice of application of that date is of some significance and I point out that it was issued by his then solicitors and it sought only the release of his obligation to pay mortgage interest pending sale and that any arrears be rolled up and paid upon sale of the house. What it did not seek was a variation of the lump sum order under section 31(7) of the Matrimonial Causes Act 1973.
After the issue of those applications the husband ceased to instruct his solicitors. As a litigant in person on 5 November, he issued a well-prepared Notice of Appeal seeking the revaluation of his lump sum obligation under the principles established in the House of Lords case of Barder v Caluori [1988] AC 20. It is necessary to record the extremely worrying procedure that then resulted in the Oxford County Court.
The notice of appeal was bare. There was no evidence in support nor was there any skeleton argument. The husband did file or swear an affidavit on 10 November, but that purported to support his application to the District Judge of 28 August. He filed no evidence in the appeal that he had initiated.
It seems that a letter was put before Judge Compston on 13 November. He had no representation and he simply ordered that the notice of appeal of 5 November be listed for oral hearing on 4 December with a one-hour time estimate. He placed no obligation on the appellant to file a skeleton argument and gave him no opportunity to file evidence. All he directed was a skeleton from the wife by 25 November. That is clearly inapt, because the wife had no skeleton to which to respond. Thus the case came on before the judge, HHJ Corrie, on 4 December and at the hearing the husband, as a litigant in person, sought to put in documents including a fresh report from the accountants whose evidence had been before the District Judge some 13 months earlier.
Mr Sefi representing the wife was in a dilemma. The last thing he wanted was a wasted day in the county court, which would be expensive for his client and would have only increased her stress as she waited yet longer. So he presented his case in reliance on very clear principles established by authority. The judge, in my view unwisely but no doubt motivated by a desire to give great latitude to a litigant in person, admitted the documents that Mr Horne had brought to court and investigated financial circumstances in part reliance on the accountants' report and used that material to persuade himself that there had been such a change in financial circumstances as to amount to a Barder event and allowed the appeal.
This procedure adopted in the Oxford County Court is casual in the extreme, plainly ignores rules that are clearly made to govern case management and, further, seems to ignore principles of natural justice that a...
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