Peter Rodney Morris v Jane Edwina Morris
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moylan,Lord Justice Floyd,Lady Justice Black |
| Judgment Date | 10 August 2016 |
| Neutral Citation | [2016] EWCA Civ 812 |
| Docket Number | Case No: B6/2015/3295 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 August 2016 |
[2016] EWCA Civ 812
Lady Justice Black
Lord Justice Floyd
and
Mr Justice Moylan
Case No: B6/2015/3295
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HER HONOUR JUDGE HUGHES QC
CENTRAL FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Duckworth (appearing pro bono) for the Appellant
Damian Garrido QC and Jason Green (instructed by Setfords Solicitors, Guildford) for the Respondent
Hearing date: Wednesday 6 th July 2016
Approved Judgment
Introduction
In this judgment I will call the parties the husband and the wife although their marriage was determined in 2014.
By a Notice of Appeal filed on 12 th October 2015 the husband appeals from orders made by HHJ Hughes QC on 7 th May 2015. They are
(a) a suspended committal order made on the wife's application by way of judgment summons for arrears due under a periodical payments order made on 14 th August 2014;
(b) the variation of the periodical payments order by reducing the amount payable by the husband from £2,000 per month to £1,750 per month; and
(c) an order that the husband pay the wife's costs assessed in the sum of £10,000.
The husband does not need permission to appeal from the committal order but does need permission to appeal the variation order and, if distinct, the order for costs. Further, the appeal was filed out of time so he requires an extension of time in respect of all aspects of his appeal.
The appeal first came before the court on 10 th March 2016. The husband appeared in person at that hearing, having acted in person throughout the relevant proceedings. The case was adjourned in order to enable the husband to obtain publicly funded representation, to which he is entitled in respect of his appeal from the committal order. In fact, the husband has been represented at this hearing by Mr Duckworth acting pro bono. This was because, as Mr Duckworth explained during the hearing, he has chosen to act pro bono because he wants to give something back to the justice system. This is very commendable and also removes any difficulties that might otherwise have arisen from the fact that public funding would be confined to the committal appeal. The wife is represented by Mr Garrido QC (who did not appear below) and Mr Green. I am grateful to them for their respective submissions.
At the outset of the hearing it appeared that the substantive issues which required determination were:
(i) was the committal order validly made (procedurally and substantively);
(ii) has the variation order been shown to be wrong.
However, not long into the hearing, it became apparent that the wife conceded that the committal order had to set aside because of procedural failures. The parties sought to persuade the court that, despite this concession, guidance should be given on a number of issues relating to committals by way of judgment summons. As was made clear during the hearing, the court declined this invitation because these broader issues are not relevant to the determination of this appeal. In addition, whilst some of the issues were touched on in Mr Duckworth's written submissions, they had not been addressed in the submissions made on behalf of the wife. The court did not, therefore, have full argument on which to consider more general issues of importance. Following this indication, we heard no substantive argument in respect of the appeal from the committal order but only in respect of the appeal from the variation order.
Although conceded, I propose to deal with the procedural failures which occurred in the committal proceedings, because of their wider significance but, first, I deal with the history of the appeal and then set out a summary of the background which I take largely from the judgment given by HHJ Brasse on 14 th August 2014 when determining the wife's financial remedy application.
History of the Appeal
From email correspondence, it appears that HHJ Hughes' order was not finalised until 7 th July 2015. Further, the husband appears to have been informed that his time for appealing was to start from the date the order was sealed.
On instructions from the husband, Mr Duckworth told the court that the husband had delayed filing his appeal until 12 th October 2015 because he did not receive a sealed copy of the order until then. Whilst the date on which the husband received a sealed copy was never established (the husband says it was on 12 th October while the wife says it was on 22 nd July 2015), it did become clear from correspondence provided by the Civil Appeals Office that the husband had, in fact, first sought to file a notice of appeal on either 4 th or 7 th September 2015. He did not, however, pay the fee as required but a lesser sum.
The husband was informed by the Office by letter dated 7 th September 2015 that he was required to pay the full fee before his appeal could be progressed. The husband replied saying that, subject to clarification of one point, he would pay the additional sum.
On 23 rd September 2015 the husband was informed that, unless he paid the full fee within 7 days, the papers would be returned.
As I understand it, the papers were then returned because the full fee was not paid. It was only when they were re-submitted on 12 th October that the husband paid the required fee.
Mr Garrido also pointed to an email from the husband dated 16 th July 2015 in which he said that he proposed filing an appeal "next week".
I will deal with the question of extending the time for appealing below.
Background
The parties were married in 1988 and separated in 2013. They are both now aged 52. There are three children aged between 20 and 17.
The wife worked in paid employment until the birth of the first child. After this she looked after the home and the children with occasional modestly paid employment. The husband earned, what is described as, a high income during the marriage which gave the family a good standard of living.
The wife's financial remedy application was determined by HHJ Brasse's judgment and order of 14 th August 2014 ("the 2014 order").
In the course of his judgment HHJ Brasse refers to the proceedings as having been "bitterly contested". He found that the husband had deliberately failed to pay the mortgage instalments due on the former matrimonial home to put pressure on the wife to settle on his terms. The husband had written an email in which he said that he would
"ensure that the costs in this case are maximised in order to reduce the capital available".
The judge also found that the husband "preferred to control the flow of disclosure himself" and that his command of the detail did "not necessarily equate with candour". As a result the judge decided that he should take "a cautious and sceptical view of the accuracy of [the husband's] assertions regarding his receipts from the company".
The judge found that the net available capital, after deduction of liabilities (excluding the wife's costs of £30,000), totalled £560,000. This comprised, largely, the net value of the former matrimonial home (taking a gross value of £1.25 million) and an inheritance received by the wife. In addition, the husband had pension funds valued at £270,000 and the wife £10,000.
The wife's total annual income was £18,500 per year (£1,540 p.m.) including earned income (some of which was estimated/hoped) of £10,700. The balance comprised tax credits and child benefit.
The husband had begun working as managing director for a new company in 2013. He had a minority (15%) interest in the company ("the Company") on which the judge decided it would be "unrealistic to attempt to place a value". Based, it would appear, significantly on the husband's drawings from the Company in the previous year, the judge decided that, "conservatively", the husband would be earning £75,000 net per year (£6,250 p.m.).
It was agreed that the children would continue to live with the wife. It was also agreed that the wife should receive sufficient funds to enable her to purchase a mortgage free home. The wife sought between £450/500,000 for housing whilst the husband proposed £350/400,000.
The husband's case was that he needed to rent a property. The judge rejected this and found that the husband would be able to continue living in a property rented by the Company, as he was at the date of the hearing.
The husband owed the Company £366,000 and sought sufficient monies from the sale of the former matrimonial home to enable him to repay this amount. The judge rejected the husband's case that he needed to repay the Company "at once" because these sums had been, in effect, "his salary and his share of the company's profits". The judge decided the husband was effectively "in control of how and when, if ever, that money is repaid".
The 2014 order provides for the immediate sale of the former matrimonial home with the net proceeds being divided so as to provide the wife with total resources of £495,000 and the husband £66,000 (out of £560,000 as referred to above). The husband was to receive a fixed sum with the balance of the net proceeds (after payments of a number of liabilities) being payable to the wife.
The judge decided that this substantial disparity was justified by (i) the wife and children's overriding need for a home; (ii) the wife's lower earning capacity compared to the husband's substantially larger earning capacity and his ability to accumulate capital as a shareholder in the Company; (iii) the unequal pension division in the husband's favour. The judge made a pension sharing order giving the wife total pension funds of £70,000 and the husband £212,000.
As for income needs, the wife sought an annual budget of...
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