Sandford v Sandford
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OLIVER,LORD JUSTICE PURCHAS |
| Judgment Date | 31 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0731-6 |
| Docket Number | 85/0496 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1985 |
[1985] EWCA Civ J0731-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE EWBANK)
Royal Courts of Justice
Lord Justice Oliver
and
Lord Justice Purchas
85/0496
No. 5944 of 1972
and
MR. V. LeGRlCE (instructed by Messrs. Swingland & Co, Solicitors London WC2B 5DG) appeared on behalf of the Petitioner (Appellant)
MR. R.T. TYSON (instructed by Messrs. Walker, Martineau, Solicitors, London WC1) appeared on behalf of the Respondent (Respondent)
I ask Lord Justice Purchas to give the first judgment on this appeal.
This is an appeal by leave of Mr. Justice Ewbank from two orders which he made on 7th March 1985. The orders were made on an appeal from two other orders made by Mr. Registrar Guest, the first on 31st July 1984, when leave to amend an application was given, to include a claim for a lump sum order; there was a provision dealing with service and an order made under the amended application, leave for which had been granted in the order itself, for the payment of a lump sum of £50,000 by the respondent/husband to the petitioner/wife, together with other provisions.
The second order of Mr. Registrar Guest was dated 14th November 1984. That was made on an application by the wife for a transfer of property order relating to the husband's interest in a property in Spain, and other orders. The order of 14th November was discharged by the order of Mr. Justice Ewbank on 7th March and no issue is taken on this appeal against the discharge of the second of the two orders made by Mr. Registrar Guest.
It is convenient to set out shortly the background of the marriage and events after the dissolution of the marriage. The parties were married on 26th December 1959; they have three children, Nicholas born on 18th October 1960, Christina born on 22nd May 1962 and Michael Peter, born on 25th June 1968. It is only with Michael Peter that we are concerned on this appeal.
The wife's petition on the ground of the husband's adultery, was dated 18th April 1972; in her petition, which sought the dissolution of the marriage, there was a prayer for, inter alia, a lump sum provision.
The decree nisi was pronounced on 16th February 1973, that decree being made absolute on 24th July 1973. In October 1973 correspondence and discussions concerning ancillary relief started between the solicitors for the parties. The wife's application for ancillary relief was dated 10th May 1974. By then there had been correspondence and discussions. That application asked for "periodical payments for herself and the children of the family and a transfer of property order". The learned judge found, and it is clear from the facts in the case, that the transfer of property order was related to properties which had been the subject matter of negotiations. There had been no mention of the payment of a lump sum during the negotiations.
There then ensued further correspondence, to which I shall have to return later in this judgment, but in summary the learned judge found that as a result of that correspondence and some telephone discussions, an overall settlement of capital position was reached. It is that finding which is challenged by Mr. LeGrice on this appeal and again I shall return to that in a little more detail shortly.
Subsequently negotiations continued for the provision of periodical payments and maintenance for such children as were eligible. On 3rd August 1976 there was a consent order made by Mr. Registrar Stranger—Jones, which provided for periodical payments of £15 per week less tax for the wife and £10 per week for each child until that child reached the age of 17 years. The husband had re-married, and in 1982 his second marriage was dissolved. In 1983 the husband married for a third time. On 17th May 1983 the wife applied to the court for a variation of the periodical payments upwards and for an increase in the maintenance for Michael Peter, the other children no longer being eligible. That application started a progression of applications to the court relating to discovery of the husband's means; it is not necessary in this judgment to give details of them but the whole conduct of affairs was criticised by the learned judge, in my view rightly so, in these terms:
"The husband was dilatory in dealing with her application. He delayed in filing his affidavit. When asked to disclose documents he delayed and gave incomplete disclosures. The husband was a property developer and the wife's then solicitors tried to obtain a great deal of disclosure concerning his business. They seemed to forget that the application was merely for a variation of a periodical payments order of £15 a week and treated it as if it were an application for a large lump sum from a rich man. The husband was a busy man; he felt harassed by the information being sought repeatedly from him and he did not co-operate. The wife's then solicitors seem to have been spurred on by his failure to co-operate. They wanted all his company accounts, his bank statements, and, in the end, so much information was being required it seems to me to have been an abuse of the legal process. The wife regarded the husband—or at any rate her then solicitors seemed to—as a scoundrel, but even if he were a scoundrel it appears that the amount of information being sought was completely out of proportion. If I say that the costs of this application to vary a periodical payment order of £15 a week now amount to about £12,000 on the wife's side, it will be appreciated that something has gone wrong".
There was an interim order made on 22nd February 1984 by Mr. Registrar Guest, as a result of which the payments were increased to £33.00 per week for the wife and £33.00 per week for Michael Peter. The learned registrar fixed a date in May for both parties to attend to give evidence and be cross-examined.
There continued a series of applications to the court, mainly for the purpose of preventing the husband from disposing of assets and to obtain orders to examine his bank statements. There was a further order on 19th April 1984, an order made by consent, which need not be set out in this judgment. There was a further order by Mr. Registrar Guest on 17th May 1984, dealing with the disposal of the property and the proceeds; again a date was fixed for hearing, on the last day of the summer term, 31st July 1984. On 21st July the husband left the country to go to Spain in circumstances which he later admitted in an affidavit were ill-advised and were unlikely to assist him or anyone else. There were further orders by the court almost daily, and it should be recorded that the husband's solicitors remained on the record during this time in July 1984, but they were clearly without instructions.
Finally, on 31st July 1984, in the presence of the husband's solicitor, but the husband not taking part, the registrar made the ex parte order to which I have already referred in outline and which I think I should now give in greater detail.
The first paragraph of the order gave the petitioner leave to amend the notice of application for ancillary relief dated 17th May 1983 to include a claim for a lump sum payment. Paragraph 2 reads:
"Service of the amended notice of application and of this order to be effected upon the respondent by sending them by first class post to the respondent at"—his address in Spain.
Paragraph 3 reads:
"The respondent do within three months of the date of service of this order upon him pay to the petitioner a lump sum of £50,000 (such service to be effected as aforementioned by post) and in default of such payment interest to accrue thereon.
"4. Upon payment of the said lump sum in full and of any interest which may have accrued thereon all the petitioner's further claims for financial provision for herself do stand dismissed.
"5. The order herein dated 22nd February 1984 be varied in so far as it relates to periodical payments for the child of the family, Michael Peter, so as to provide that the respondent do pay periodical payments to the said Michael Peter as from the date hereof until he ceases full-time education or attains the age of 17 years, whichever is the later, or further order at the rate of £33 per week payable weekly".
The learned judge dealt with that order in these terms:
"On behalf of the husband, however, it is said first of all that the learned registrar had no power to amend the wife's application for a variation of periodical payments by including a lump sum application. It is said that section 31 of the Matrimonial Causes Act precluded that course being taken. Section 31(5) says in terms—'no order for the payment of a lump sum shall be made on an application for the variation of a periodical payments order'".
In my view that is perfectly right and so, without moving outside the four corners of the order itself, the registrar was clearly wrong to make an order for a lump sum upon an application under s.31 for a variation of periodical payments. As my Lord commented during argument, it is further wrong on the face of it to grant leave to amend an application and make an order upon the amended application before the amended application has been served on the other party, so that in more than one respect this order is susceptible to criticism. However, the learned judge did not deal with the matter on the technical faults in the order, if I may respectfully say so quite rightly, because by dealing with it on the merits he was able...
To continue reading
Request your trial
-
Richardson v Richardson
...Minton v Minton [1979] AC 593. N v N (unreported), 7 October 1991 (Eastham, J). Potter v Potter [1990] FCR 704. Sandford v Sandford [1986] 1 FLR 412. Thynne v Thynne [1955] P Cases cited in skeleton argument:L v L [1962] P 101. Mills v Mills [1940] P 124. AppealAppeal from District Judge Bi......
-
Dinch v Dinch
...is yet another example of the unhappy results flowing from the failure to which I ventured to draw attention in Sandford v. Sandford [1986] 1 F.L.R. 412 to take sufficient care in the drafting of consent orders in matrimonial proceedings to define with precision exactly what the parties wer......
-
Omielan v Omielan
...it contained no express dismissal of the claims, and a similar result was reached in relation to a consent order in Sandford v Sandford [1986] 1 FLR 412." 15 This speech was delivered over five years after the introduction of section 24A and it is perhaps surprising that no consideration, a......
-
Mubarak v Mubarik (Variation of settlement)
...provision making any such order. He accepts that there is no express dismissal of such a claim; but says that Dinch, Carson and Sandford [1986] 1 FLR 412 all show that even although it is desirable that any dismissal should be expressed, it is not essential that it should be. Miss Harris co......