Janet Elaine Carley (Respondent (Plaintiff) v Nigel Wayne Carley (Appellant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS |
| Judgment Date | 03 December 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1203-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/1242 |
| Date | 03 December 1991 |
[1991] EWCA Civ J1203-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SIR PETER PAIN
(sitting as a Deputy Judge of the Queen's Bench Division)
Royal Courts of Justice
Lord Justice Purchas
and
Lord Justice Ralph Gibson
91/1242
MR. DAVID BARKER Q.C. and MR. STEVEN GASTOWICZ (instructed by Messrs Johar & Co., Leicester) appeared on behalf of the Appellant (Defendant).
MR. LEVY Q.C. and MISS ANGELA HODES (instructed by Messrs Russell Hobson & Co., Watford) appeared on behalf of the Respondent (Plaintiff).
This is an appeal by leave of Lord Justice Bingham, given on 16th July 1991, from an order of Sir Peter Pain (sitting as a Deputy Judge of the Queen's Bench Division) on 21st March 1991 dealing with an appeal from Master Turner in proceedings brought by Janet Elaine Carley (to whom I shall hereafter refer as "the wife") for summary judgment under the provisions of R.S.C. Order 14. On those proceedings, which claimed a sum of £15,382 plus interest being moneys due under a separation deed dated 16th April, the Master had ordered that there should be interim payment to the wife by Nigel Wayne Carley, the defendant, (to whom I shall refer as "the husband") of £7,062 plus interest of £2,030.33, making a total of £9,092.33. On appeal Sir Peter Pain ordered that the appeal should be allowed, and varied the interim payment to a sum of £5,000 plus interest. He also ordered that the application for summary judgment should be adjourned to the Horsham County Court, an order which had been made by Master turner and against which the husband did not appeal.
It is necessary to touch on a few of the matters of history against which this appeal has been brought.
The parties were married on 14th February 1981. There was one son (to whom I shall refer as "Tobias") born on 12th August 1984. The marriage broke down and the parties separated in 1987. On the breakdown of the marriage they entered into a separation deed dated 16th April 1987. It is necessary only to refer to three clauses in that deed.
Clause 2 provided that:—
"The husband will pay to the wife the sum of £208 per calendar month until she remarry or until she cohabit for more than three months provided that after two years from the date hereof either party shall be entitled to apply to the court to decide what if any maintenance the wife should receive".
Clause 3 provided that:
"The husband will pay to the said child of the family [Tobias] the sum of £208 per calendar month until he shall either attain the age of 17 years or cease full time education whichever is the later".
Clause 8 provided that:
"In any subsequent proceedings for divorce taken by either the husband or the wife a consent order will be obtained acknowledging this deed of separation between the parties and both the husband and the wife will use their best endeavours to persuade the court that the terms of this agreement herein are reasonable and it is so acknowledged by the husband and the wife".
It is common ground that, since that deed was made, the husband has never at any time fully complied with his obligations to pay.
The wife issued her petition in the Horsham County Court on 25th August 1988 and in it included a prayer for ancillary relief. Those proceedings have been pursued; the marriage has been dissolved and indeed the husband has remarried. The ancillary relief proceedings however continued. In those proceedings the wife gave notice of an application in the Horsham County Court on 16th November 1988. This was a normal notice which is served where relief has already been claimed in the prayer, and sought relief including maintenance pending suit, periodical payments, and a lump sum for Tobias.
The wife filed an affidavit dated two days earlier in support of her application, and I propose only to read the third paragraph of it.
"Further the respondent agreed to make payment of the sum of £208.00 per calendar month in respect of maintenance for the child of the family Tobias and a further £208.00 for myself. The respondent has never been reliable in regard to his payments and on many occasions he has defaulted and I have been in serious financial difficulties as a result".
In the rest of that short affidavit the wife set out her outgoings and established her requirement for ancillary relief.
On 16th February 1989 the husband filed an affidavit in reply. Again I propose only to refer to three paragraphs.
In paragraph 3 he describes his position when he entered into the deed:
"In April 1987, I was running a reasonably successful company and felt that I could meet the maintenance payments provided for in the Deed. Unfortunately, the company had financial difficulties and I was forced to sell the same for a nominal sum of £3,000 which payment was due in 1988. I have never received this sum and the company was liquidated prior to this date".
"4. I moved to Leicestershire in June 1987 and up to December of that year only [worked] for a period of two months on a self-employed basis as a Sales Training Instructor. At this time I am still trying to obtain payment for that work which is still outstanding. Due to severe financial problems during this period, and being unable to find employment, I was forced to register as unemployed at the end of January 1988 until the end of March 1988".
He then describes his obtaining employment as a car salesman for a short time, how he lost that job, and that he was currently at the time of swearing the affidavit seeking further employment.
"6. I am still at present trying to rebuild my life financially and hope to marry my fiancee as soon as my marriage is dissolved. My fiancee is currently six months pregnant, and I am therefore responsible for all current and future living expenses. I would point out the property in which I live is owned by my fiancee solely".
He sets out his liabilities, and then makes a statement, which was not true, namely that he was continuing to pay £200 per month by way of maintenance under the separation deed. He sets out a very substantial list of debts. The only relevance of these is that a subsequent affidavit makes it apparent that, whilst defaulting under the separation deed, partly with the assistance of his then fiancee, now his wife, he reduced the indebtedness instead of devoting money to meet his obligations under the deed.
As has happened only too frequently in this case, there was another period in which no movement on the ancillary relief front seems to have taken place. However, for some reason or other, on 17th November 1989 the Horsham County Court issued notice of a date for the hearing of an application for interim maintenance, and the date given was 11th January 1990. This stimulated the husband into swearing, through his solicitors, a second affidavit three days before the hearing date. I propose to read only two paragraphs of that affidavit:
"3. In my affidavit sworn on the 16th of February 1989 I indicated that I was paying maintenance in accordance with the separation deed. Unfortunately since then my financial position had deteriorated and I was not able to afford any maintenance payments. I propose, however, to make payments in relation to the child of the family at the rate of £108 per month which is the amount that I can presently afford".
He goes on to deal with his present employment, he says he is is in receipt of a salary of £951 net per month, and he sets out his outgoings. He purports to demonstrate that he has no further balance of income after he has met his obligations and the debts which have continued and which had been mentioned in his earlier affidavit.
In paragraph 7 he says:
"I also crave leave to refer in particular to the separation deed, a copy of which is exhibited to my affidavit sworn on the 16th of February 1989. I respectful ask the court to take this document into consideration particularly bearing in mind the fact that at the time the entire net proceeds of the sale of the former matrimonial home at 26 Haywards Pound Hill, Crawley, West Sussex was paid to the petitioner. The maintenance I had agreed to pay at the time was on the basis of what I could afford at the time and in any event I submit that it was anticipated I would only have to pay that maintenance for a period of 2 years and thus explaining the inclusion of Clause 2 in the separation deed".
He goes on to deal with his settling of a large number of the debts and expenses set out in his earlier affidavit.
The matter came before the Horsham County Court and an interim maintenance order for £108 per month for the child was made, in other words the court as an interim measure accepted precisely what the husband had offered in his affidavit.
That takes the matter to the 11th January 1990. We have been told that in May of that year the wife changed her solicitors. Be that as it may, no further substantial action seems to have been taken until 28th September 1990 when the wife issued a writ in the Queen's Bench Division. This was specially endorsed with the statement of claim and, as I have already mentioned, claimed a substantial sum as due under the separation deed together with interest.
On 16th November 1990 a purely nominal defence was filed. There was then a passage of a month and a half, and on 17th January 1991 the wife issued a summons for summary judgment. This was supported by an affidavit in pursuance of an order made by the court that the summons should be served together with an...
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