Note: L v L (School Fees: Maintenance: Enforcement)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE PILL,LORD JUSTICE LEGGATT |
| Judgment Date | 23 January 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0123-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FC3 97/5103/F FAFMF 97/0070/F |
| Date | 23 January 1997 |
[1997] EWCA Civ J0123-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE COLLINS)
Royal Courts of Justice
Strand
London WC2
Lord Justice Leggatt
Lord Justice Pill
Lord Justice Ward
FC3 97/5103/F
FC3 97/5104/F
FAFMF 97/0070/F
MR J DATE (Instructed by Messrs Hamilton Downing, London WC1A 1LT) appeared on behalf of the Appellant
MS J BAZLEY (Instructed by Messrs Hodge Jones & Allen, London NW1 0NE) appeared on behalf of the Respondent
Thursday, 23 January 1997
On 5 June 1996 Deputy District Judge Petrou varied an order that had been made in 1991 following the breakdown of the marriage of the parties before us. By his variation he ordered that the father of their now 16 year old daughter:
"…do on or before 14th June 1996 pay … to the Fine Arts College by way of school fees for the [daughter] the sum of £3,000 and by 19th July 1996 the further sum of £3,000 being the balance of school fees for the year 1995/96. Thereafter the [father] do make [payment] to the Fine Arts College … [of] an amount as shall be equal to the termly fees of that College, for so long as [the child] shall remain in education there, or further order. Such payments to be made not more than 7 days after the commencement of each term."
The first tranche of £3,000 was duly paid, but there was default in the payment of £3,000 due on 19 July, and on the term fees for the term commencing in September of last year. As a result, the mother (who is the respondent in the divorce proceedings) issued a judgment summons against the petitioner. After an adjournment to give him an opportunity to prepare his financial documents, the matter came before His Honour Judge Collins on 5 December last year. The Judge found that there had been default within the meaning of the Debtors Act and he made a committal order that the petitioner go to prison for six weeks, but he suspended that to 23 December to give him an opportunity to pay the arrears assessed at some £6,022.80. That money was not paid. On 23 December there was a further extension. Judge Aglionby extended it further until 17 January, by which time there had been an application by the father to this Court to appeal. A token of the vindictiveness of the respondent wife in this case is that she refused to agree to extend the stay further to enable this Court three days later to hear this appeal, with the result that I had to grant the further stay in default of her agreement. It is now an appeal by the petitioner against that sentence imposed against him.
Three points are taken. The first is that it was plain from the manner of the judgment that the Judge found that the husband at least had the opportunity to pay the monies from the sale of a property in Switzerland. He said this (page 39 in our bundle):
"I have come to the conclusion beyond any shadow of a doubt that this father either has the means to pay this order directly available to him or, alternatively, is in a position to obtain the money. It was suggested that he could obtain some further finance on his £500,000 equity on his Evian property enabling him to pay these comparatively small fees, and there has been no suggestion put before me that that is not the case. I have no doubt whatsoever that he is capable of raising this money if he wants to do so, and I am going to allow him a little time to do so."
It was for that reason that he extended the time to 23 December.
When the matter came back before the Court on that occasion the position had changed. It was quite clear that this property in Evian (which had been put on the market for sale by public auction) had been withdrawn on the day before the sale, fixed for 9 December, and so the money was no longer available.
In this appeal, leave has been given to him to file further evidence. The purpose of that evidence is to confront the difficult problem that the husband has. He now accepts that the evidence which he gave before the Court was totally unreliable. The Judge had been very critical indeed of that evidence. He had described him as, "to say the least, an insouciant witness". "He blighthly informed [counsel for the mother] that the reason why he was not prepared to go back to work was that he was lazy". On 23 December the Judge said of him that, "I just do not believe a word Mr Levy tells me".
The purpose of the further evidence put before us is, firstly to offer an explanation for that evidence. It is that the appellant has suffered a severe nervous breakdown of such severity that on 17 January of this year, the general practitioner was so concerned about his psychiatric ill-health that he took the precaution of advising the local psychiatric community nurse, fearing that action might need to be taken in default of any response from the husband to seek appropriate advice and help for the disturbed state he was then in.
Secondly, the fresh evidence is put before us to indicate that the documentary evidence confirms now that his financial position has so seriously changed that this Court must now conclude that he does not have, nor at any time since the making of this order did have, sufficient means to pay the arrears of some £6,000. The evidence before us indicates that the property, which had been expected to fetch £1 million at auction, was withdrawn because his present wife (who has a half interest in that property) refused to permit the sale to continue, there being no reserve placed on the price at which it might be sold at that auction. There were technical difficulties in the way of selling in England a property in...
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E(R) v D(C)
...K (Financial Relief: Management of Difficult Cases), [2005] 2 FLR 1137, followed. (13) L v. L (School Fees: Maintenance: Enforcement), [1997] 2 FLR 252, referred to. (14) McTaggart v. McTaggart, 2011 (2) CILR 366, applied. (15) Mesher v. Mesher, [1980] 1 All E.R. 126, considered. (16) Mille......