Newton v Newton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 09 June 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0609-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0545 |
| Date | 09 June 1989 |
[1989] EWCA Civ J0609-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE HOLLIS)
Royal Courts of Justice
Lord Justice O'Connor
and
Sir Roualeyn Cumming-Bruce
89/0545
MR HOWARD SHAW, instructed by Messrs Payne Hicks Beach, appeared for the Appellant (Respondent).
MR NICHOLAS WILSON, Q.C., and MR KIM LEWISON, instructed by Messrs Charles Russell Williams & James, appeared for the Respondent (Petitioner).
I will ask Sir Roualeyn to give the first judgment.
In these proceedings, initiated by a wife for financial provision after dissolution of marriage, the learned judge stated the content of the wife's claim and of the husband's response thereto, and I incorporate in this judgment the first page and the first nine lines of the second page of the judge's judgment:
"In this case the wife, who is now fifty-three, seeks financial provision from her husband, who is now sixty-four, in proceedings ancillary to divorce proceedings.
"The wife is still living in the old matrimonial home, which is Flat 24 Palace Court, 250 Finchley Road, where she has lived ever since 1960. The husband pays to the wife, either direct or for her benefit, some £31,000 per annum net voluntarily. He is the statutory tenant of the flat, Flat 24, and failed to purchase a long lease of that flat in 1978 for some £15,000. The wife stands in the husband's shoes and is a protected tenant until the decree is made absolute, there having been a decree nisi pronounced on the 28th January 1987, upon the wife's petition alleging five years' separation between the parties. The present rent of that flat is £4,785 per annum.
"The wife wants to move and buy a flat in St. John's Wood for about £350,000 to £400,000 plus, and in addition she seeks something like £75,000 for removal expenses, furnishing the new flat and a modest capital sum. In addition, she seeks such a sum as, following the Ducksbury calculations, will produce £40,000 per annum net to her now, increasing as the years go by, for the rest of her projected life, and the sum for that would be £681,336. According to her list of estimated expenses, she really wants to have £55,000 a year in her pocket, but Mr. Wilson on her behalf has realistically, I think, reduced that to £40,000. Therefore in total the wife seeks something like £1.1 million from the husband.
"He (the husband) has recently made an open offer—varied during the course of this hearing—submitting that he would consent to the court transferring his statutory tenancy of Flat 24 to the wife under Schedule 1 of the Matrimonial Homes Act 1983; that he should put in a second bathroom for her and redecorate where necessary; and should pay to the wife—originally the offer was £25,000 per annum, but now amended to such a sum as I should think fit, plus the wife's costs; and he said the periodical payments should be secured. He also says that he would transfer all the furniture in the flat to the wife, which he says he owns."
The order of the learned judge is set out at page 3 of the bundle, and I incorporate in the judgment his order in the five paragraphs thereof without repeating them:
"1. Subject to Decree Absolute herein, the Respondent do make to the Petitioner a lump sum payment of £750,000 (SEVEN HUNDRED AND FIFTY THOUSAND POUNDS) on or before the 25th May 1990, with liberty to the Respondent to apply in respect of the said time for payment.
2. Upon payment to her in full of the aforesaid lump sum, the Petitioner do forthwith transfer to the Respondent or to his Order the shares currently held by her in Newton Corporation Limited.
3. Upon payment to the Petitioner in full of the aforesaid lump sum and upon transfer to the Respondent of the aforesaid shares, all other applications of each party against the other for ancillary relief do stand dismissed it being directed that neither be entitled to make any further such application in relation to the marriage whether for unsecured periodical payments, secured periodical payments or otherwise.
4. The Respondent's application for an Order barring the Petitioner's entitlement to apply for an Order under the Inheritance (Provision for Family and Dependants) Act 1975 be refused.
5. The Respondent do on or before the 25th May 1989 pay to the Petitioner the sum of £150,000 (ONE HUNDRED AND FIFTY THOUSAND POUNDS) assessed as the costs recoverable by her from the Respondent in respect of the proceedings in this suit, to include all costs reserved and all costs hitherto ordered to be paid by him to her and to take account of the costs hitherto ordered to be paid by her to him; and it is directed that interest at the judgement debt rate for the time being shall be payable on any outstanding balance of the said costs from the 25th May 1989 until payment is made."
By the notice of appeal the appellant appeals against the learned judge's order of a lump sum and seeks an order that there should be no lump sum, but that for a lump sum order an order for periodical payments should be substituted; alternatively, if this court takes the view that the learned judge was right to order a lump sum, that the lump sum should be reduced below the figure ordered by the judge.
There is also an appeal against the learned judge's order to make an order that the husband should pay a fixed sum for costs in lieu of an order whether on a standard or indemnity basis for taxation.
The grounds of appeal are:
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"1. The Learned Judge reached his findings upon figures which were not supported by his conclusions regarding the evidence.
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2. The Learned Judge failed to have regard to the financial resources of the husband and his financial needs and obligations as required by Section 25 of the Matrimonial Causes Act 1973.
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3. The Learned Judge erred in awarding a lump sum of £750,000 to the Petitioner and transferring to her the Respondent's interest in the former matrimonial home. The effect of that part of the Order is to leave her with surplus capital which she does not require for her immediate or foreseeable needs and to deprive the Respondent of capital he reasonably requires.
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4. Alternatively, a lump sum of £750,000 was so excessive as to be plainly wrong and ought to be reduced.
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5. The Learned Judge failed to have any proper, or sufficient, regard to the fact that his Order required the husband to sell off that part of his business that generated income and thus the whole structure of the business has been endangered.
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6. The Learned Judge's conclusions as to the value of Newton House was not supported by his findings upon the evidence.
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7. The Learned Judge declared that he intended to base his Judgment on Newton House being sold to the Company for between £2 an £2.5 million and then used the figure of £2.5 million.
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8. The Learned Judge erred by leaving the Respondent with only Newton House, his and the companies debts, together with building works required.
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9. The Learned Judge erred by using as the value for the furniture the sum of £236,000 and then by the way in which he purported to use this figure in his equation.
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10. The Learned Judge failed to have due regard to the Respondent's needs and resources.
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11. Based on his findings the Learned Judge erred in awarding a lump sum of £750,000 together with costs assessed at £150,000".
So the appeal falls into two separate compartments. I shall describe the background of the case and deal first with that part of the appeal which challenges the learned judge's decision to award a lump sum and the amount thereof, and I say by way of introduction that that part of the appeal raises two linked but separate problems: first, the assessment of the husband's assets, which was itself a difficult exercise for the learned judge, but secondly and perhaps more importantly a problem of the liquidity facing the husband, and the problem how far, given his liquidity capacity, it was practicable for him to raise a lump sum of anything like the order made by the judge, and I would conclude that introduction by saying that I have been greatly indebted to the submission of Mr Shaw, who deployed the problems arising on both those two elements in the lump sum appeal with what I would venture to call great judgment and very great professional skill.
The Background of the Matter
The wife was born in 1953. It is material to remind oneself that during the years of the 1939 war she was the victim in an extremely stressful period of her life when she, with the family, was hiding from persecution or destruction in Lyons. That may have a relevance in that there is medical evidence suggesting that one of her disabilities of health may have been aggravated by that early experience.
The parties married in 1959. They have a son, now aged 28, who is married, and has for some time frequently been returning to stay in 24 Palace Court in his mother's accommodation. She suffers from serious, physical, emotional and psychological disabilities, including pronounced nervous anxiety, demonstrating itself inter alia in agoraphobia to a pronounced degree. She reacts to any pressure-causing stress. She requires, and is likely to continue to require for the rest of her days, resident companionship. So in considering her needs one not insignificant element is to provide her with a situation in which she can procure a resident companion or companions as well as means of transport because of her difficulties in facing the outside world without attendance.
At present her mother, aged 86, is living with her and...
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