Rooker v Rooker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,MRS JUSTICE BOOTH |
| Judgment Date | 09 June 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0609-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 1987 |
| Docket Number | 87/0569 |
[1987] EWCA Civ J0609-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE BRAITHWAITE)
Royal Courts of Justice,
Lord Justice Fox
Mrs Justice Booth
87/0569
CCF 336/87
MR R. CRABB (instructed by Messrs. Brand Mellon & Co.) appeared on behalf of the Appellant (Wife).
MR R. GORDON (instructed by Messrs. Francis & Co.) appeared on behalf of the Respondent (Husband).
I will ask Mrs Justice Booth to deliver the first judgment.
This is an appeal by the appellant wife, as I shall call her, Mrs Patricia Ann Rooker from a consent order made by His Honour Judge Braithwaite sitting in the Gloucester County Court on 8th May 1984. Leave to appeal to this Court was given by the learned Judge on 4th September 1986 and the time for appealing was extended by the Registrar in February of this year.
By her appeal the wife seeks to increase the lump sum awarded to her by the learned Judge on the ground that the husband, the respondent to this appeal, Mr William Leslie Rooker, breached the order of 8th May 1984 by deliberately frustrating the sale of certain property, from the proceeds of which the lump sum was to be paid. It is the wife's case that as a result of the husband's breach of the order and the delay which has elapsed, she is no longer able to purchase alternative accommodation with the amount of the lump sum which was awarded to her.
The background facts can be briefly stated: the parties were married in 1952. They had seven children all of whom are now over the age of 18 and with whom the court is not concerned at all. In 1968 or 1969 they purchased for themselves in their joint names a small property, "Bank View", Longhope, Gloucester, for the modest sum of £150—that property consisting of accommodation converted from two railway carriages.
The wife is living there at this time and in fact it was the matrimonial home of the parties for some time previously. However, when the final separation took place in June 1982, the parties were living with the husband's father in a property which was subsequently given by the husband's father to the husband, which is material for the purposes of this appeal. That property is Hill Farm, Kilcot, near Newent, Gloucester, and it is in close proximity to the property at "Bank View".
The husband continued to live at Hill Farm after the separation, and the wife returned to "Bank View". There then followed contested divorce proceedings which were ultimately resolved by a decree nisi being granted to the wife in December 1982, which was subsequently made absolute in January 1983, shortly after which the husband re-married though the wife has not re-married.
The wife then instituted ancilliary relief proceedings in the course of the matrimonial suit. The matter came first for hearing before Mr Registrar Child in the Gloucester County Court, and on 16th December 1983 he made an order by which both properties to which I have referred, namely "Bank View" and Hill Farm should be sold and that from the proceeds of such sale the sum of £20,000 should be paid to the wife, the balance going to the husband. Upon that basis the wife's claim for periodical payments was, with her consent, dismissed.
We have been told by Mr Crabb, on behalf of the wife—and it appears in the judgment of the Registrar—that it was then anticipated that the sum of £20,000 would purchase for the wife a property equivalent to that in which she was living. It appears, however, that the husband was dissatisfied with that order, and he appealed. That appeal came before His Honour Judge Braithwaite on 8th May 1984. However the parties, who were, as I understand, represented by Counsel, came to an agreement on that occasion, which was embodied in the consent order which is the subject-matter of this appeal.
It was a prior term of the order that the husband would undertake, first of all, to release the wife from any liability under covenants in favour of Barclays Bank in respect of the bank's charge on the property, "Bank View". That property had been charged in the sum of £4,000 in respect of a loan taken out by the husband for the purposes of his then business. Clearly the wife was anxious to be released from any liability that she might have in respect of that charge (the property being in joint names) and so it was that the husband undertook to use his best endeavours to procure her release. He further undertook to indemnify the wife against any future liability in the event of the bank proceeding against her.
The order then provided, by consent, that the husband's appeal should be allowed and the order of the Registrar varied, so that the property Hill Farm should be sold, together with outbuildings, the adjoining garden and a specific area of land, that sale to be forthwith by private treaty or by auction. From the proceeds of the sale of that property the wife was to receive the same sum of £20,000. However, the husband was then to receive from the wife her interest in "Bank View". So in effect the consent order preserved "Bank View" for the husband together with a small amount of land which was to have been sold under the Registrar's original order. The consent order then went on to deal with the contents of the two homes and further provided not only that the wife's claim for periodical payments should be dismissed, but that all applications of a financial nature by one party against the other should stand dismissed, and that neither party should make any claim under the Inheritance(Provisions for Family and Dependants) Act 1975 upon the death of the other. In other words, it was a consent order which would lead to an adjustment of property, a capital payment and then a clean financial break between the parties.
Provision was made for the husband to pay the wife's costs limited to the sum of £1,500; Mr Crabb has said that that was because it was intended that the wife should have the sum of £20,000 clear...
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