Philip Howell Vaughan v Lucienne Elizabeth Vaughan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Ward,Lord Justice Mummery |
| Judgment Date | 02 November 2007 |
| Neutral Citation | [2007] EWCA Civ 706,[2007] EWCA Civ 1085 |
| Docket Number | Case No: B4/2007/0864 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 November 2007 |
[2007] EWCA Civ 1085
Lord Justice Ward
Lord Justice Mummery and
Lord Justice Wilson
Case No: B4/2007/0864
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
H.H. JUDGE CORRIE
LOWER COURT NO: OX06D00101
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant “husband” appeared in person.
Miss A. Ward (instructed by Wilsons, Salisbury) appeared on behalf of the Respondent “wife”.
Hearing date: 9 August 2007.
Judgement
SECTION A: INTRODUCTION
A “husband”, as it will be convenient to describe him notwithstanding the pronouncement of a decree absolute of divorce, appeals against an order made in proceedings for ancillary relief by H.H. Judge Corrie in the Oxford County Court on 5 April 2007. The circuit judge's order was made on appeals by the “wife”, as it will be convenient to describe her, and by the husband against an order for ancillary relief made in favour of the wife by District Judge Jenkins on 17 October 2006.
The central part of the district judge's order, which provided for a clean break between the parties, was that the matrimonial home in Henley, occupied then as now by the wife, should be sold and that, out of the net proceeds, sums first of £425,000 should be paid to the wife and then of £160,000 should be paid to the husband and that any excess above £585,000 should be divided equally between them. The central part of the circuit judge's order was that the first £50,000 of any such excess should be paid to the wife. In that even under the district judge's order the wife would have received half of any such £50,000, the effect of the circuit judge's order was to increase the award to the wife by £25,000.
The husband, who appears in this court in person as he did before the circuit judge (albeit not also before the district judge), contends that the circuit judge was wrong to increase the award to the wife and that, on the contrary, he should have reduced it. The wife, who has at all stages been represented by Miss Ward, responds that in the circumstances the circuit judge was entitled to interfere with the district judge's order and that the exercise of his resultant discretion so as to increase the award by £25,000 was legitimate.
The case has been bedevilled by three features.
First, the district judge was furnished with what now seems to have been a gross undervaluation of the home by the jointly instructed valuer.
Second, there has been – and still is – great uncertainty about the husband's future employment prospects, whether with his current employers, namely British Airways, or otherwise. He has been employed by B.A. as a pilot, with the rank of captain; but in 2005, when the marriage broke down, he suffered a serious depressive illness which caused him to be suspended from duties until very recently. The evidence before the district judge clearly suggested that B.A. was about to terminate his employment and thus the financial terms of the severance appeared to be of great relevance. By the time of the hearing before the circuit judge, however, it was far from clear that the husband would be required to leave B.A. and thus his substantial salary as a pilot appeared perhaps to be again at his command in the future. The husband tells us that in June 2007, shortly after the hearing before the circuit judge, he physically returned to work for B.A., albeit, whether indefinitely or otherwise, assigned to ground duties.
Third, it has to be said, after making every allowance for his illness, that the husband has been guilty of serious financial and forensic misbehaviour during the past two years. His hostility towards the wife, which may be reciprocated, is of sickening intensity. He has not only recklessly dissipated assets but has brought numerous interlocutory applications or appeals in the county court, mostly devoid of merit, and has failed to discharge his duty of disclosure. This leads Miss Ward to submit to us that the district judge and the circuit judge, exposed to a series of forensic manoeuvres on the part of the husband in which he has usually acted in person, have gained his measure and, by contrast, that we have lacked the opportunity to do so. We have a transcript of the exchanges between the husband and the circuit judge during and after the latter's judgment; it is clear both that the husband then behaved disruptively and that the judge addressed the behaviour with a perfect mixture of firmness and politeness. Nevertheless, insofar as the two judges were unable to do other than to approach their task in the knowledge that the husband was a troublesome litigant, prone not to cooperate with the court and to raise meretricious points, such would seem to me to be as much a handicap as an advantage. It is at any rate my personal experience that a litigant's repeated making of bad points, particularly if clothed with aggression or infected with dishonesty, may eventually become so exasperating to a judge that the latter becomes at risk of failing to identify any good point which he may subsequently make.
In the end, as I will explain, the case demonstrates that, in an ancillary relief appeal, even the most conscientious appellate judge can fall into error if, having perceived error and/or received fresh evidence, he purports to make the requisite adjustments without having first stood back and, in the light of all the circumstances including the adjustments, surveyed the effect of the order under appeal. It is sometimes easy to think that an appeal is from a judgment. But it is not; it is from an order. A judgment may have contained an error; and a change of circumstances may have invalidated some of its important assumptions. But it does not follow that the order should be set aside upon appellate review.
SECTION B: THE BACKGROUND FACTS
The husband is now aged 47 and the wife is now aged 46. They were married in May 1987. An unusual feature, and, in the husband's submission, an important one not properly reflected in the reasoning of either of the judges, is that he had bought the matrimonial home in his sole name, free of mortgage, three years prior to the marriage with an inheritance from his father. Towards the end of the marriage he placed it into the parties' joint names.
There are two children of the marriage, namely Sophie who is now aged 19 and Jonathan who is now aged 18. Both of them are presently estranged from the husband. Sophie has just completed an arts foundation course at a college in London and is likely to pursue a degree course in London. Jonathan has just left school and may proceed to university after a year's gap. At the time of the hearing before the district judge Jonathan was not quite 18 years old; and this led the district judge, in the course of a well-presented judgment, to describe Jonathan as the only “relevant” child. Such was a piece of shorthand which I myself would not have used: for although, by virtue of s.25(1) of the Matrimonial Causes Act 1973, Jonathan's welfare for the months until the attainment of his majority was, and by contrast Sophie's welfare was not, the court's first consideration, it by no means follows that the interests of adult children undergoing further education are irrelevant to enquiries of this sort. Indeed such was recognised by the district judge in his conclusion that it would be reasonable for the wife to buy a house with three bedrooms in West London which during the next few years the children might use as a base even if they were unlikely to live there full-time.
SECTION C: THE FINDINGS AND CONCLUSIONS OF THE DISTRICT JUDGE
Before the district judge was a valuation of the matrimonial home by a jointly instructed valuer dated May 2006 in the sum of £600,000. The wife submitted to the district judge that the figure might prove too low and explained that, suspiciously, the valuer had failed to answer her solicitors' questions about his valuation; and the district judge observed that, in the light of his knowledge of local property prices, his gut feeling was that indeed the valuation was too low. As I will demonstrate in [29] below, his observation was entirely justified. There is no point in speculating why the valuation was so unfortunately erroneous; and although the husband's mother had been expressing a wish to buy the house for the husband's occupation and for the ultimate benefit of the two children, being an expression of wish which at a recent further hearing the district judge has held not to be – or at least no longer to be –bona fide, there is no evidence that the valuer was in any way induced by the husband's family to provide a low valuation.
The district judge found that the wife had net liquid assets of £54,000. He also found that the husband had no liquid assets. The husband's apparent lack of such assets was the subject of considerable argument. It was the wife's case that during the 18 months since separation he had been in possession of liquid capital and income amounting to £196,000. She conceded that a small proportion of it, say £24,000, had reasonably been spent but demanded to know what had happened to the balance of say £172,000. Her case was that the husband had either hidden it or recklessly dissipated it and that in either event it should be attributed to him as part of his capital. Having heard his oral evidence, the district judge rejected the suggestion that the husband had hidden any of it; and this conclusion was not the subject of attempted challenge in the wife's...
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