Warren v Warren
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GRIFFITHS,SIR ROGER ORMROD |
| Judgment Date | 03 November 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1103-3 |
| Date | 03 November 1982 |
| Docket Number | 82/0803 |
| Court | Court of Appeal (Civil Division) |
[1982] EWCA Civ J1103-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
HIS HONOUR JUDGE RANKING
Royal Courts of Justice
Lord Justice Griffiths
Sir Roger Ormrod
82/0803
MR. M. F. IRVINE (instructed by Messrs. Kingsford Dorman, London Agents for Messrs. John Parry Williams, Saffron Walden, Essex) appeared on behalf of the Appellant Wife.
MR. J. C. J. TATHAM (instructed by Messrs. Vanderpump & Sykes, Enfield, Middlesex) appeared on behalf of the Respondent Husband.
I will ask Sir Roger Ormrod to deliver the first judgment in this matter.
This is, first of all, an application by a wife, who has been given leave to appeal and to appeal out of time, to introduce further evidence as to the value of the former matrimonial home. Mr. Tatham, who appears for the husband, did not object to our admitting further evidence, which we accordingly did. The effect of that further evidence I will develop in a moment but, in a sentence, its effect was to double the value of the former matrimonial home, which was the only asset which the learned judge in the court below was dealing with.
Before we come to the merits I think it is right and necessary to say that for a variety of reasons this case is extraordinarily atypical. What happened very shortly is this. The parties were married on 14th March 1963. At that time the husband was 48 and the wife was only 22. They had two children—Karen, who was born on 14th July 1963 and who is now 19, and James, who was born on 19th August 1967 and who is now 15. The marriage became unhappy quite quickly although, in fact, the parties had been living together for a couple of years before the marriage, the husband having been previously married. But the marriage became unhappy by 1969 at which time the wife formed an association with a Mr. Newton, with whom she has lived ever since and who, quite recently, she has married. The actual separation took place in September 1972 when the wife left with the two children and went to live in Mr. Newton's house. Mr. Newton, I ought to say, is only two or three years younger than the husband. The marriage was dissolved in October 1972 by decree nisi.
Then, for one reason or another, it seems that no step was taken to sort out the property matters between the parties for a very long time. In fact, it seems it was 1980 before any steps were taken about financial arrangements. In the meanwhile, as it turned out, the husband had become ill and effectively unable to work. The house stood empty and had been standing empty for five years or more and so was in a deplorable condition. The wife was living with Mr. Newton in his house; the husband was living with his unmarried sister in her house and getting social security benefit which is his sole source of income apart from a very small amount of money which he had. He was also due to receive a sum of money as a result of some compulsory purchase order which had been made in respect of property belonging to him which amounted to a sum of £5,500.
The wife eventually started proceedings which came before Mr. Registrar Guest. The husband did not appear in those proceedings and so the registrar was obviously placed in a position of considerable difficulty. He had no, or very little, information about the husband's means. At that time the wife's solicitors had a valuation on the house which was thought to be worth about £60,000 and, on that basis (that is in the absence of the husband who, I think, could not be traced at that time), the learned registrar made an order for a lump sum payment of £34,000 to the wife, £3,500 to Karen and £7,500 to James.
It is right to say, and it is an important factor in the case, that, from the time of the parting, certainly since 1973, the husband has never made any contribution to the support of the children. It is one of those cases where the relationship between father and children was bad for one reason or another. Access proved to be impossible and so the father never in fact contributed to the maintenance of the children. They were supported partly by the wife from her modest earnings in Mr. Newton's business and for the rest by Mr. Newton himself.
The husband then appealed to the judge and it came on before His Honour Judge Ranking sitting as an additional judge of the Family Division on 11th November 1981. At that hearing the wife's solicitors put forward a valuation for the house of £52,000, which was agreed by the husband, and the case proceeded on the basis of that valuation of £52,000. In his judgment the learned judge sets out in brief the history of the marriage. He makes the comment that the marriage became unhappy and there was a period of what he called acute misery and unhappiness between 1969 and 1972 consequent upon the wife's association with Mr. Newton, which was known to the husband. He deals with the wife's complaints about her husband. He accepted her evidence as to fact insofar as that was concerned and he came to the conclusion that the real cause of the breakdown of the marriage, of course, was the adultery of the wife which started in 1972 and which appeared to have started earlier, but that there was considerable substance in the wife's complaints about the husband, although, of course, he was in a difficult position having regard to her association with the other man. But, in the end, what the learned judge said was:
"The wife said, and I accept it, that she was happy with her husband before they were married, but afterwards her feelings changed. I think that the truth is that the great difference in their ages led to their drifting apart and the wife finding consolation with Mr. Newton".
I think it is probably right, reading the judgment as a whole, that the judge bore in mind, as he was quite entitled to do, the history of this marriage without making any moral judgment either way and, no doubt, he was right to do that. It would be difficult, obviously, at this distance of time to make any further assessment. So he made a lump sum order in the sum of £16,000. He did not actually order the house to be sold, but he assumed, on the basis of the valuation, that there would be left some £49,000 for distribution and out of that he gave the wife £16,000, which is somewhere around the one-third figure, or rather less if one takes into account the £5,500 that the husband was expecting from a local authority. On the other hand, there were various costs to be paid as well. So that is how it stood.
The learned judge at the end of his order, in fact, gave both parties leave to appeal. Neither party actually availed himself or herself of that leave for a time. But the £16,000 was not paid by the husband and eventually, in about March or April 1982, the wife noticed an advertisement in a newspaper for this property at an asking price of at least £85,000. Later on it was re-advertised at £79,000. Clearly, therefore, there was a very large disparity between the valuation and the asking price for the house. In the event, surprisingly enough, it was actually sold in July 1982 for £92,500, which is far, far higher than the valuation.
Perhaps this illustrates the point that Lord Justice Dunn and myself were at pains to make in the case of Potter v. Potter, which Mr. Tatham has referred us to, reported in (1982) 1 W.L.R. 1255, which referred to the extraordinarily speculative nature of valuations where capital assets are concerned. It is said by Mr. Irvine, on behalf of the wife, that the difference between the valuation on which the judge worked and the actual figure is, in this case, so large that justice requires that the matter should be re-opened and that the court should deal with the case on the ascertained figures and not hold the parties to the valuation. Valuations, as we all know, have to be made in these cases and nobody wants to encourage parties to have two valuations and a lot of argument about what is the true value, which is again largely speculative. It seems to me much more sensible that, where there is a gross discrepancy as it turns out between valuation and fact, this court should be prepared in a proper case to exercise its discretion to re-open the matter. It seems a juster and more satisfactory way to do it than any other way.
I should say briefly that Mr. Irvine relies on two well-known cases in the House of Lords for the proposition that an appellate court has jurisdiction in exceptional cases to re-open the matter if it is apparent that the court below has proceeded in good faith but on a wholly erroneous assumption or basis. The first is Murphy v. Stone-Wallwork (Charlton) Ltd. (1969) 1 1023, which is a decision of the House of Lords. I think all I need to do is to read the operative part of the headnote:
"Held, that, although the general principle was that damages were assessed at the trial once and for all, though the plaintiff might finally suffer greater loss than was anticipated, an appellate court had power, in...
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