N v N
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 2006 |
| Neutral Citation | [2006] EWHC 3269 (Fam) |
| Court | Family Division |
| Docket Number | Case No: SE 78 D 01399 |
| Date | 19 December 2006 |
[2006] EWHC 3269 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Mr Justice Charles
Case No: SE 78 D 01399
Ann Hussey (instructed by Jones Myers Partnership) for the Appellant (the named Respondent)
Deborah Bangay QC (instructed by Addleshaw Goddard) for the Respondent (the named Applicant)
Hearing date: 9 November 2006
Judgment Approved by the court for handing down (subject to editorial corrections)
If this Judgment has been emailed to you it is to be treated as a 'read-only'.document.
Charles J :
Introduction
This is an appeal from a decision of DJ Greene (the DJ). For convenience I shall refer to the parties as the husband and the wife. The application before the DJ was made by the wife under s. 31(7) MCA 1973. She sought variation of a nominal order for periodical payments contained in an order made in March 1981 (the 1981 Order). That order was based on an agreement between the parties.
The DJ decided that the periodical payments order should be varied to £16,500 per annum and capitalised in the sum of £202,000 under s. 31 (7B) MCA 1973. On that basis a clean break was achieved. The DJ ordered the husband to pay £45,000 costs to the wife. This was below the costs she had incurred.
The husband's contention before the DJ was that the wife's application should be dismissed, that she should receive no uplift of the nominal order and that that order should be discharged. The wife did not resist capitalisation of any uplift awarded and thus a clean break.
The husband appeals and there is no cross appeal.
The approach on appeal
Relevant possible grounds for appeal in this case are:
i) a failure to give adequate reasons,
ii) error in law by failing to apply the right legal approach or test,
iii) error of law in the exercise of the right test or approach (and thus here in the exercise of the balancing exercise introduced by s. 31(7) and (7B) MCA 1973) by taking into account matters which were irrelevant, or ignoring matters that were relevant, and
iv) that the conclusion reached in the exercise of the relevant judicial discretion having applied the right test (and thus having had regard to the right factors) is plainly wrong.
This is well established (see for example CPR 52.11.3 and 11.4, the cases referred to therein and Cordle v Cordle [2002] 1 FLR 207 which relates specifically to this jurisdiction). There is an overlap between grounds (ii) and (iii). Ground (iv) is reached when the other grounds have failed. It presents a high hurdle for an appellant.
My attention was also specifically drawn to Piglowska v Piglowski [1999] 2 FLR 763 and in particular to the headnote at paragraph (4) and the speech of Lord Hoffmann at pages 784/5. Those passages emphasise the points that the appellant court (a) should resist the temptation to subvert the principle that it should not substitute its own discretion for that of the judge, (b) should not take a narrow textual analysis when considering a judgment concerned with the exercise of a judicial discretion, and (c) should have regard to the principle of proportionality. They therefore also highlight the difficulty that an appellant has in demonstrating that the conclusion of a judge exercising a judicial discretion (who has applied the right test and taken into account the right factors) is plainly wrong. To borrow from the approach in judicial review it seems to me that to be plainly wrong such a conclusion must be outside the range open to a decision maker applying the correct approach in law.
Failure to give reasons
This was not raised in the notice of appeal as a ground of appeal but was advanced in argument as a second or final string to the husband's bow. I deal with it first because it can be dealt with shortly. The argument was that the DJ did not properly explain how he arrived at the figure for periodical payments by reference to his findings on budget and his bringing into account of the capital retained by the wife. It was said that when that capital was brought into account, and a Duxbury approach used, the award exceeded the relevant budget.
The answer to this point is to be found in an earlier part of the judgment in which the DJ records the income return on the capital retained by the wife. When that figure is taken, the figure for periodical payments selected by the DJ falls below the budget. That return was not a Duxbury return and in my judgment the DJ was entitled to have regard to an actual income return rather than to a Duxbury return.
That subsidiary argument of the husband therefore fails.
At this point I pause to pay tribute to the judgment of the DJ which it seems to me sets out his findings and reasoning clearly and appropriately in what he correctly describes as a difficult case.
The 1981 Order
This was made against the background of the decision in Dipper v Dipper [1980] 1 FLR 286. This case settled controversy that existed at the time as to whether the court could dismiss a claim for periodical payments. It was held that the court had no such power unless the applicant (wife or husband) consented. The Court of Appeal indicated that there were four ways of dealing with an application for periodical payments. In this case, as the applicant (wife) did not consent to the dismissal of her application for periodical payments, the course taken accords with the second approach set out in Dipper which was expressed as follows: "by making a nominal order, so the party obtaining it may obtain a variation without undue difficulty".
No evidence is available as to the precise thinking of the parties concerning the nominal order for periodical payments but it seems to me that their intentions (or those of their advisers) must have, or must be taken to have, reflected the recent guidance given by the Court of Appeal in Dipper.
The view that both parties thought that the effect of the nominal order was that it enabled the wife to seek a variation to a substantive order is confirmed by the discussions recorded by the DJ in respect of the transfer to the wife in the early 1980s of further ground rents by the husband. I return to this. The precise date of this transfer was not in the evidence.
The substantive provisions of the 1981 Order were that the wife transferred her interest in the matrimonial home to the husband (where he lived with the three children of the marriage then aged 12, 10 and 6) and that the husband was to provide the wife with a sum to enable her to purchase a home and to transfer ground rents totalling £6,000 per annum.
The marriage had lasted 13 years. At the time of separation the wife was 32 and she left the children in the care of the husband. It was not disputed that he was left in a difficult position in caring for the children and was facing (as were many others) a difficult working environment in connection with his business as a builder. This was affected by the miners' strike and other prevailing conditions at the time.
It was effective common ground that the award to the wife provided her with a comfortable lifestyle at the time.
To my mind there is at least a very strong possibility that if the order for ancillary relief in this case had been made after the amendments to the MCA 1973 in 1984 (which changed the position as set out in Dipper and gave the court power to dismiss an application for periodical payments – see s. 25A(3)) that order made would have provided for a clean break.
Further provision by the husband
On three occasions the husband made transfers of ground rents. One for ground rents of £3,000 (when told by the wife of difficult payers amongst those transferred as a result of the 1981 Order), another for ground rents of £6,000 per annum and another for ground rents of £624 per annum. He also from the mid 1980s until about 1989 paid the wife commission for the collection of other ground rents.
In connection with the transfer of ground rents totalling £6,000 which took place in the early 1980s there were discussions between the parties which are referred to in the judgment of the DJ. The DJ found the husband's evidence to be far more credible than the wife's in every respect in which they conflicted and concluded that:
i) the conversations that took place led the wife to believe that if she had the provision relating to nominal periodical payments removed she would receive satisfactory consideration for doing so,
ii) what the wife said in a later conversation led the husband to the conclusion that the provision for nominal periodic payments had been removed from the order,
iii) there was no real consensus, and
iv) notwithstanding the finding in (ii) the totality of his findings brought him back full circle to the fact that the provision for nominal periodic payments remained.
These findings show that after the 1981 Order was made the parties were aware that the nominal order had been made and that it provided a means through which the wife could return to court for a substantive order for periodical payments. Also in my view and notwithstanding the finding recorded in paragraph 20 (ii) both husband and wife could have easily checked and discovered that the provision for nominal periodic payments had not been removed. This accords with the conclusion of the DJ recorded in (iv). Also as the DJ found regardless of the husband's understanding of whether the 1981 Order had been amended his later payments (recorded above and in paragraph 23 below) indicate an acceptance on his part of some level of responsibility for the wife over the period they were made.
Further these findings are not challenged. In my view correctly, it was accepted that the husband could not rely on an agreement or an estoppel based on them.
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