Mansfield v Mansfield
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Jackson,Lady Justice Black |
| Judgment Date | 27 July 2011 |
| Neutral Citation | [2011] EWCA Civ 1056 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2010/2687 |
| Date | 27 July 2011 |
[2011] EWCA Civ 1056
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
HIS HONOUR JUDGE NEWTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Jackson
and
Lady Justice Black
Case No: B4/2010/2687
The Appellant appeared in person.
Mr Richard Todd QC and Ms Madhavi Kabra (instructed by Messrs Roger Brooker & Co) appeared on behalf of the Respondent.
This appeal raises a single point of significance, and that is the degree to which the judge in ancillary relief proceedings should reflect the origin of the family assets in a substantial damages award on the settlement of a personal injuries claim brought in the Queen's Bench Division. The history necessary to set that question in the context is therefore relatively brief.
The respondent in the court below received damages of approximately £0.5 million for his personal injury claim that was resolved in 1998 before he ever met his wife. They cohabited for a period of about 18 months before their marriage in September 2003. They separated in April 2008 and were then divorced. The marriage, if the prior period of cohabitation be included, therefore had a duration of about six years.
The husband, as I will now call him, invested his compensation in the purchase of two properties: 1) a bungalow known as The Orchards; and 2) an investment flat, a two-bedroom flat, which was let out for rent. Both properties are in Chelmsford, and the purchase and adaptation of these properties accounted for his award. No doubt that was a thoroughly sensible investment since the primary property provided a suitable home for a man with his disabilities, including a prosthesis, and the investment property provided a rent.
During the marriage twins were born to the couple and the twins are now some four years of age. On separation the husband remained in The Orchards and the wife has accommodated elsewhere in rented property with the two children.
Two short additions to those observations: the first is that to some extent The Orchards is a property which has been adapted to meet the husband's special needs; the second point is that the wife invested what seems to have been about £30,000 in the improvement of The Orchards, that sum derived from the sale of the flat which provided her premarital home.
Sadly, there has been a lot of litigation between this couple, partly in relation to contact but mainly in relation to ancillary relief. The wife's claims were essentially for sufficient capital to provide a home for herself and the children. The husband's resistance was based on his desire to retain The Orchards, specially adapted to meet his needs.
The issue was tried by District Judge Silverwood-Cope sitting in the Chelmsford County Court. She heard evidence and submissions over either three or four days and delivered her judgment on 6 May 2010. The conclusion comes in the ultimate paragraph where she said:
"However, in order to enable [the wife] to purchase a property suitable for herself and the children, taking into account that she has a mortgage potential of £42,000, I consider on balance that the husband should pay a lump sum £285,000. My order is that that should be payable in three months to enable the husband to consider how he may raise that money or whether he needs to consider other ways of raising it. However, I say that, in default, [The Orchard] should be placed on the market for sale and the wife is to receive £285,000 from the proceeds of sale, or 63% of the gross sale price, whichever is the greater."
That citation illustrates that the district judge was contemplating and allowing for the eventuality that the husband, in order to meet his obligation to pay a lump sum at £285,000, would have to sacrifice his home.
The husband was not satisfied with the district judge's conclusion and exercised his right of appeal to the circuit judge. The appeal came before HHJ Newton on 23 September 2010. The judge wrestled with the case, and particularly wrestled with the processes by which the district judge had arrived at her conclusion. I cite paragraph 16 of his judgment when he said :
"However, in my judgment, doing my own analysis of the figures, it seems to me that if £285,000 was paid to [the wife], that would leave £270,000 available to the husband from the two properties, that is to say having regard to the likely net equity of the former matrimonial home and of the rental property. That is using my own experience and using the usual deductions give or take. I accept that does not take into account capital gains tax, as to which there is no evidence. On any view, there is £20,000 or slightly more available in bank accounts, which takes it to £290,000 and there is significant argument about other issues. There were a number of motorcars and other enquiries in relation to activities, which the Judge did not make findings about and which, doing the best I can, I have been unable really to get to the bottom of, having spent some time going through the papers myself."
So in the end the judge, wrestling with the case, in paragraph 23 expressed the conclusion:
"This is a difficult case. I do not see that the Judge got anything wrong in law. The cases were cited to her. She applied those cases."
The husband was dissatisfied with the outcome of his appeal and endeavoured to bring a second appeal to this court. His application was considered by my Lady, Black LJ, on the papers, and on 8 December she referred the application for oral permission hearing on notice and sought further information as to the judgments in the court below. That resulted in a hearing on 3 February when the parties were represented by counsel who had appeared in the county court, Mr Barton for the husband and Mrs Bettle for the wife. At the conclusion of detailed submissions, permission to appeal was granted despite the fact that we were effectively constituting a second appeal, and we gave directions as to the preparation of that appeal and further directions for its conduct.
Shortly thereafter, the husband filed notice of change to represent himself and in mid-April the wife did the same. In our detailed judgments of 5 February we had made two observations; one was that there had been an inordinate outflow of family money on legal costs and that the family could hardly afford the costs of the appeal which we were directing. We accordingly invited them to participate in this court's ADR scheme. They did so in May, but sadly that venture failed and accordingly the appeal had to be listed.
Since then there...
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