S v S (Financial Provision)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS |
| Judgment Date | 05 October 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1005-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 October 1988 |
| Docket Number | 88/0774 |
[1988] EWCA Civ J1005-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS. JUSTICE BOOTH)
Royal Courts of Justice.
Lord Justice Purchas
88/0774
No. 5998 of 1978
MR. NICHOLAS WILSON, Q.C. and MR. PAUL COLLINS (instructed by Messrs. Richard Freeman & Co.) appeared on behalf of the Applicant.
MR. ROBERT JOHNSON, Q.C. and MR. MICHAEL HOROWITZ (instructed by Messrs. Grangewoods) appeared on behalf of the Respondent.
This is an application by Patricia Phyllis Surtees for leave to appeal from orders made by Mrs. Justice Booth on the 24th June, 1988. In her order she made provision in ancillary proceedings in the matrimonial suit in which Mrs. Surtees is the petitioner and her ex-husband, Mr. Surtees, the respondent. The order provided for payment of a lump sum of £435,000 in certain instalments and thereafter that all other claims should be dismissed, and, further, that neither party should be able to apply under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975. The learned judge made no order as between the parties for costs.
Mrs. Surtees seeks leave to appeal both against the lump sum order, on the grounds that it is too low, and against the failure to make an order for costs in her favour. She asserts that an order in her favour should have been made, since the offer made by Mr. Surtees of £400,000, in the form known as a Calderbank letter, was less than the amount which the learned judge in the event awarded.
An application for leave to appeal on both aspects was made to Mrs. Justice Booth, who refused leave to appeal.
In the draft notice of appeal, exhibited to the affidavit in support of the application, no mention is made of costs, but notice had been given to the respondents of the applicant's intention to apply for leave to appeal against the order for costs. I have accordingly allowed Mr. Wilson, who appears for Mrs. Surtees, to apply for leave on this ground.
Mr. Wilson readily acknowledges however that, if he fails to obtain leave to appeal on the ancillary order, he is caught by section 18(l)(f) of the Supreme Court Act 1981. Mr. Wilson also accepts that the award of a lump sum is a matter essentially for the discretion of the trial judge and, that in order to succeed on appeal, he must show that the order is plainly wrong to the extent that it is apparent that the judge must have erred in principle in some way. But he asserts that at this stage he only has to establish that there is an arguable case that the judge must have erred in principle and not that the judge did in fact err in principle.
In my judgment his submissions correctly state the law, and indeed Mr. Johnson, who has appeared for Mr. Surtees, does not demur from these propositions.
The history can be shortly stated. The parties were married in 1962, when Mrs. Surtees was about 23 years of age and Mr. Surtees 28. In due course of time they established the eventual matrimonial home at a property known as "Grey Timbers", in Oxted, Surrey. The marriage broke down in 1975, Mrs. Surtees's petition for the dissolution of her marriage was based on two years' separation, and was dated the 17th May, 1978. Decree nisi was pronounced on the 24th May, 1979. Mrs. Surtees gave notice that she intended to proceed with the claim for ancillary relief on the 11th June, 1979, and Mr. Surtees's affidavit of means in response to that notice was filed in July 1979.
There were then negotiations between the parties and their advisers. Mrs. Surtees alleged that there had been an agreement about a payment to be made by Mr. Surtees and that, on the basis of that agreement, she had agreed not to pursue her application. Mr. Surtees's account said that no agreement had been reached. He agreed that there were some negotiations between the parties, but, upon the wife's adviser asserting that he was considering orders in the area of £1 million, the matter broke down. The learned judge found in favour of the husband's account.
In the event, there was no further application to the court for some 6 1/2 years. On the 15th January, 1986 Mr. Surtees applied to the court for an order for the transfer to Mrs. Surtees of "Grey Timbers". This brought the matter to life. Further affidavits were filed, and a date for hearing before Mr. Justice Latey was fixed for December 1987. There was an adjournment, because Mr. Surtees shortly before the date had made an accountant's report as to his means available. Mrs. Surtees needed time to consider this report and to obtain valuations of some of the properties owned by the husband's companies. Following this adjournment, the matter came before Mrs. Justice Booth in June 1988.
I have rehearsed that history for the purpose of demonstrating the exceptional length of time over which this matter has proceeded. This was a matter which clearly concerned the learned judge and, in its turn, has also formed one of the bases of the application for leave to appeal. The effective delay of 6 1/2 years is the important one. It is no part of the case, as I understand it, that the judge was attaching any blame by way of conduct to the wife or, indeed, to the husband. She merely took the established fact of that delay into account in circumstances to which I shall shortly refer, and applied it as one of the elements upon which she should exercise her discretion in applying section 25 of the Matrimonial Causes Act in reaching the figure she eventually awarded.
Mr. Wilson submits that the lump sum is manifestly too low. He points to the disparity of wealth between the parties as it existed at the time of the hearing before Mrs. Justice Booth, and to the disparity of income. The present wealth of Mr. Surtees at the time of the hearing was placed at a net value of £2.4 million to £2.7 million. The learned judge accepted this, and she also accepted that there was a disparity of income in a like degree.
Mr. Wilson supports his application for leave to appeal against the lump sum order on two main grounds. He asserts that the judge was pre-occupied with the question of delay so that the exercise of her discretion was distorted. It is not possible, however, for him to point to any particular part of the judgment which demonstrates that the question of delay was wrongly applied in the circumstances. However, he submits, as he is entitled to submit, that the repeated reference to delay, not merely in the body of the judgment dealing with the ancillary order but also when the question of costs was reached, indicates that the learned judge placed too much emphasis on the question of delay. Mr. Wilson asserts that, far from prejudicing the husband, Mrs. Surtees is herself prejudiced because over a long period of time, in the absence of adequate maintenance provided by Mr. Surtees, she has consumed her capital assets. Mr. Johnson has pointed to assets which were available to her that she did consume and also to the fact that this is not one of those cases where the parties lacked professional advice and that no application had been made for maintenance pending suit.
These are matters of background, but Mr. Wilson is entitled to refer to them against his general assertion that, taken in the round, this lump sum was manifestly too low.
His second point was more specific; that is, that when Mrs. Justice Booth came to assess the element of the lump sum awarded which should provide for the future maintenance of Mrs. Surtees, she was plainly wrong. I shall return to this point shortly, but, in summary, what is said is this. The evidence available to the judge was inadequate to enable her to make a proper assessment. This raised a point of some importance. Since the case of Preston v. Preston and, later on, Ducksbury, a method of assessing what has been described as a "capitalisation of income" has as a matter of practice in the Family Division been accepted on the basis described in Ducksbury [1987] 1 Fam. 7 Mr. Wilson accepted that no evidence of this kind of assessment was before the judge. Although it is quite clear that Mrs. Surtees had the assistance of accountants, no accountant was called as part of her case, although the accountant who prepared the report of Mr. Surtees's capital and financial position generally was called and gave evidence, which was accepted by the judge.
Mr. Wilson invited me to admit evidence of a so-called Ducksbury calculation, which he asserted would demonstrate that the lump sum was manifestly too low. The application was opposed by Mr. Johnson on the grounds that this was not a question of mathematical computation of the incidence of tax or a matter that could be specifically determined, but involved judgment and expertise of an actuarial nature which, had it been adduced at the hearing before Mrs. Justice Booth, he would have challenged.
I decided that this evidence should not be admitted for the reason that it could have been placed before Mrs. Justice Booth; it was not so placed, and it would be quite wrong for this court to attempt to assess evidence given of a professional expert nature which would have been challenged had it been produced. Therefore I took the decision that it should not be admitted on this application.
Now I return to the assessment by the learned judge. Mr. Wilson, as one would expect, acknowledges Mrs. Justice Booth as a judge of great experience and knowledge...
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