ND (by her litigation Friend KW) v GD
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peel |
| Judgment Date | 14 June 2021 |
| Neutral Citation | [2021] EWFC 53 |
| Docket Number | Case No: BV18D33648 |
| Court | Family Court |
[2021] EWFC 53
Mr Justice Peel
Case No: BV18D33648
IN THE FAMILY COURT
SITTING REMOTELY AT THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Katherine Kelsey (instructed by Charles Russell Speechlys) for the Applicant
Stuart McGhee (instructed by Sherwood Wheatley) for the Respondent
Hearing dates: 8–11 June 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In this financial remedy case, where the total assets are about £2.6 million, there are three factors of particular relevance which require a careful balancing exercise:
i) The length of marriage, some 23 years;
ii) The undoubted fact that the bulk of the assets are non-matrimonial in origin, having been inherited by the husband (“H”) some 5 years before separation;
iii) Very sadly, a diagnosis of the wife (“W”) in late 2018 of Young Onset Alzheimer's (“YOA”) which will have a significant effect on her life expectancy and medical needs during her remaining years.
W is represented by a litigation friend, KW who was appointed on 1 May 2019. She has Power of Attorney and is responsible for managing W's financial affairs, which will include such award as I make. It is obvious that KW, despite her own busy family and work life, has been, and continues to be, a source of enormous support to W. The parties agreed that W should not be required to give evidence. Written and oral evidence has been given by KW, who has carefully sought to reflect W's views where necessary. As was expected, W did not attend any part of the hearing.
At the start of the case the parties' open positions were, broadly:
i) W sought total assets of £1.2m;
ii) H proposed that W should receive £750,000.
The difference is £450,000. As is dispiritingly commonplace in so many cases, the combined legal costs of about £483,000 match, and indeed slightly exceed, the difference between them. This is not a “big money” case by any stretch; the costs represent about 18% of the wealth, which is clearly disproportionate. To that should be aggregated the emotional toll which usually accompanies litigation of this nature.
The proceedings
The proceedings started in December 2018, some 2 1/2 years ago. There have been numerous hearings including a maintenance pending suit application, a legal services payment order application and a court FDR. In addition, the parties attended a recent, unsuccessful, Private FDR. H has generally been somewhat casual in his approach, not engaging as fully or promptly as he should have. Apart from the resultant delay and cost, this has caused W and KW anxiety and frustration. The case was allocated to High Court level in September 2020, I assume because of the complexity occasioned by W's particular needs. The bundle before me consisted of nearly 1500 pages. In the end, however, I cannot see that the case has been so complicated as to justify the costs or the exhaustive proceedings.
That said, I am immensely grateful to counsel, Ms Kelsey and Mr McGhee, for their assiduous presentation. They provided me with a single composite asset schedule, and a single chronology. In my admittedly brief experience on the Bench, these requirements are routinely ignored, creating confusion and extra judicial work. The practice guidance is very clear:
i) Paragraph 13 of the Statement of Efficient Conduct of Financial Remedy Hearings allocated to a High Court Judge states as follows in unequivocal and mandatory terms:
“At the Pre-Trial Review a direction should be made which ensures compliance with the indispensable requirement in FPR PD27A para 4.3(b) of provision of an agreed statement of the issues to be determined at the final hearing. To the statement of issues must be attached:
a. an agreed schedule of assets on which any unagreed items must be clearly denoted; and
b. an agreed chronology on which any un-agreed events must be clearly denoted”.
ii) For cases allocated below High Court level:
a) Paragraph 15 of the Financial Remedy Protocol requires that: “Opposing advocates should, wherever possible, work together to produce a single (if possible agreed) asset schedule”.
b) In respect of chronologies and other preliminary documents, paragraph 4.6 of PD27A provides that:
“The summary of background, statement of issues, chronology and reading list shall in the case of a final hearing, and shall so far as practicable in the case of any other hearing, each consist of a single document in a form agreed by all parties. Where the parties disagree as to the content the fact of their disagreement and their differing contentions shall be set out at the appropriate places in the document”.
To recap:
i) At High Court level, in addition to the usual requirements of PD27A, it is obligatory at final hearing for the asset schedule and the chronology to be in the form of single, composite documents marked up with any differences between the parties;
ii) Below High Court level:
a) The asset schedule should be in a single, composite document, which I take to mean that it must be so absent good reason.
b) The preliminary documents at final hearing shall (which is synonymous with must) be in single, composite documents, and at other hearings shall be in such form so far as practicable.
I would expect advocates to adhere rigorously to these requirements. It is unacceptable for the parties and their lawyers to ignore them. Compliance may be burdensome, but that is no excuse and is necessary in the interests of proper use of judicial and court time.
Background
W is 54 years old, H 59. They met in 1992, married in 1995 and separated in 2018 so that this was a long marriage of some 23 years. Their two children, aged 22 and 21, are at university and base themselves with W in the holidays. I have been told, and accept that for them it is very important to be able to continue to stay with W in the future.
During the marriage, W worked in events, then in a garden centre and, by the time of her YOA diagnosis, as a carer which has now ceased. H worked throughout the marriage, until his mother's death, in the construction industry. Since his mother's death he has generally worked part-time, on a freelance basis.
It is not seriously in dispute that the lifestyle of the parties during the marriage was modest. H says, and I have no reason to doubt, that their combined income was never more than about £50,000pa net.
In 2009 the parties moved out of London and bought the family home, in X town, in South East England (“the FMH”) in joint names for £320,000. They had little in the way of other assets, so that up to the death of H's mother in 2013 this was a family with a house of relatively moderate value, enjoying a comfortable, but far from high level, combined income.
On the death of H's mother, H as sole beneficiary inherited her entire estate, consisting of a residential property portfolio of about 10 properties in South East England and South East London valued for probate initially at about £3.6m, revised downwards to £3.2m upon revaluation of the properties. Thereafter, there does not appear to have been a great surge in family expenditure on holidays, eating out, luxury items and so on.
Upon separation in late 2018, after an altercation at the FMH, H moved into rented accommodation. W left the FMH in 2019 and moved, by agreement, into an adjacent property in H's name, the cottage.
W's diagnosis of YOA in November 2018 followed a GP appointment where it was noticed she had difficulty with word recall. It is a neurodegenerative condition which will worsen, probably rapidly, over time. W is endeavouring to maintain her independence but needs some assistance from friends and family, particularly KW, and now from a carer. By March 2020 her condition had worsened such that her GP certified that she was unfit to work or drive. Since March 2021, W has been receiving 5 hours a week of professional care to assist with household jobs, at a cost of £606pm or about £7,200pa. She can find herself a little lost on a familiar dog walk. Her speech is affected, and she needs help with finances and making appointments. She mislays things, reading and writing have deteriorated, she tires easily and can no longer drive. That said, she is, with the current level of support, currently managing reasonably well at home. It is her wish to remain living independently at home for as long as possible before contemplating any form of residential care. It is inevitable that in time her cognitive decline will require much greater support, including from professional services. What is very difficult to predict in this case is the timescale of deterioration, increased care at home and possible residential care.
Computation of assets (a schedule is attached)
The FMH has a gross value of £500,000, subject to a mortgage of -£86,525. The net equity after costs of sale and CGT is £382,569.
The cottage, occupied by W, is valued at £450,000; the net equity after CGT and costs of sale is £436,500. It derives from funds inherited by H, and was bought in H's sole name in 2017.
H owns a further 8 properties, all inherited from his mother. The properties...
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