Williams v Lindley
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Buxton,Lady Justice Smith |
| Judgment Date | 10 February 2005 |
| Neutral Citation | [2005] EWCA Civ 103 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2004/1357 & B4/2004/1357A |
| Date | 10 February 2005 |
[2005] EWCA Civ 103
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE KEVIN BARNETT
CREWE COUNTY COURT (at Chester)
CW01D000823
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Buxton and
Lady Justice Smith
Case No: B4/2004/1357 & B4/2004/1357A
Mr M Bennett (instructed by E Rex Makin & Co) for the Appellant
Miss K Gregory (instructed by Messrs Dixon Keogh) for the Respondent
The History
The parties to this appeal are about forty years of age. They married on the 23 rd June 1984. Two sons were born of the marriage now respectively eighteen and seventeen years of age.
In 1998 the wife commenced employment with a Mr and Mrs Lindley. She provided home care for Mrs Lindley who was an invalid. Mrs Lindley died in April 2000 and the wife received a modest inheritance under her will. The Lindley's were of a different generation. We are told that Mr Lindley is approximately twenty-eight years the wife's senior. The final separation of the parties occurred on the 15 th August 2001. She moved into Mr Lindley's home with both the children. Following the death of Mrs Lindley the wife had been employed by Mr Lindley to keep house.
On the 28 th September 2001 the wife filed her petition for divorce. She obtained a decree nisi on the 20 th February 2002 and April 2002 filed her application for ancillary relief.
On the 20 th June 2002 the younger son returned to live with his father at the family home. Since that date each party has provided a home for one of the children. Thereafter the central issue in the ancillary relief proceedings was whether the husband should retain for former matrimonial home and, if yes, what lump sum should he pay to the wife to enable her to re-house herself.
In his evidence in the ancillary relief proceedings the husband asserted that the relationship between the wife and Mr Lindley was much more than that of employer and housekeeper. Accordingly at the financial dispute resolution hearing on the 18 th July 2002 Miss Gregory, who has acted throughout for the wife, on instructions categorically stated that the relationship between the wife and Mr Lindley was "no more and no less than a contract of employment." Miss Gregory further indicated that the wife was seeking a transfer of the husband's share of the matrimonial home to enable her to return there with the children. The indication given by the Deputy District Judge was that the wife should receive a larger share of the presently available capital, forgoing any pension sharing order.
On the 25 th September the husband's solicitors wrote a letter the hallmark of which was the offer of a lump sum increased to £125,000, representing in total a 70:30 split in the wife's favour. The offer was accepted promptly and on the 14 th November the District Judge made a consent order to implement the agreement. An express term of the agreement was that child maintenance should not be negotiated but fixed by the Child Support Agency.
In the month of November both the husband and the wife applied to the CSA for assessment of their separate entitlements given that each was caring for one of the children. We do not have copies of the applications nor do we have whatever determinations followed, although there is one page only of a letter from the CSA to the wife dated 8 th August 2003 stating the arrears due to her from 7 th March to 31 st July 2003 and her future entitlement from 1 st September 2003. Nor do we have a copy of the wife's response to a letter of the 1 st December 2002, which Judge Barnett, in the judgment which we review, held to be highly significant. In that letter the husband, in my judgment unwisely, anticipated the determination of the CSA. He informed the wife that he was reducing her standing order of £500 per month to £250 per month. He further informed her that for a period of about five months he would pay nothing to recoup overpayments arising out of the younger son's return to the family some six months earlier. Judge Barnett was to find that the receipt of that letter caused the wife such distress and anxiety that Mr Lindley alleviated it by a proposal of marriage, which the wife duly accepted. Judge Barnett did not record that on the day the husband wrote that letter the consent order was implemented and the lump sum of £125,000 received by the wife.
The evidence of the wife and Mr Lindley at the subsequent hearing was that they did not announce their engagement until February 2003, and then only to the children. They further asserted that with effect from 31 st March 2003 the wife's employment was terminated. In our bundle is a strangely formal letter from Mr Lindley to the wife dated 28 th February in the following terms:
"Dear Diane,
This is to confirm our agreement that you should leave my employment as from 31sr March 2003.
Please find enclosed a cheque for £245.94, which the balance of net pay owing. Kind regards E. Lindley."
Of course the termination of the wife's employment would have heavy impact on a CSA assessment and that may well explain why the arrears referred to in the CSA letter of the 8 th August 2003 commence at 7 th March 2003. However that may be the wife after 31 st March continued to receive the same monthly payment from Mr Lindley as a voluntary allowance.
The Proceedings.
The marriage between the wife and Mr Lindley was celebrated on the 8 th May 2003 prompting the husband's application to set aside the consent order on the 17 th June. The application sought leave for a re-hearing under CCR Order 37 Rule 1(5) and for the necessary extension of time. The application was advanced on two bases: the first that the wife had deliberately misrepresented the true nature and extent of her relationship with Mr Lindley, the second that in the alternative the basis of the consent order had been invalidated by subsequent events. The application sought the specific relief that the husband pay to the wife such lump sum as achieved the result that the assets of the parties were divided equally on a clean-break basis in substitution for the order which had given the wife an additional 20% share.
The application for a re-hearing required relatively swift despatch. Unfortunately it waited eight months for a hearing before Judge Barnett in the Crewe County Court on the 16 th February 2004. At the end of the day the application was adjourned over to a further hearing on the 5 th of May. In adjourning the judge ordered, impliedly for the adjourned hearing, the provision of the following: —
"(a) An up to date joint valuation to the former matrimonial home.
(b) Up to date surrender values in respect of the policies with the Prudential Insurance.
(c) Up to date CETV's in respect of the various pension policies.
(d) Up to date evaluation of all investments and or cash balances in investment or other accounts held by either of them."
Mr Bennett, for the husband, tells us that he objected to that direction but that the judge ruled against him. We have no transcript of the reasons given by the judge for ordering that disclosure and overruling Mr Bennett's objection. Mr Bennett did not seek permission to appeal that part of the order made on the 12 th February.
The judge concluded the hearing on the 5 th May and delivered a reserved judgment, which was handed down on the 9 th June 2004. Having set the scene he addressed first the assertion that the wife had obtained the consent order by misrepresentation or non-disclosure. He made an important finding, as follows: —
"It may be, and this is to some extent speculation, that prior to December 2002 both parties harboured romantic notions, but, in my judgment, as a matter of fact it was not then a romantic relationship."
On that finding the dismissal of the allegation of misrepresentation or material non-disclosure was inevitable. The judge then considered the alternative case that the consent order was invalidated by the supervening subsequent event. He quite rightly asked whether the application satisfied the four conditions identified in the speech of Lord Brandon in the case of Barder v. Barder:Caluori intervening (1988) AC 20. He held that the second, third and fourth conditions were satisfied but, ultimately, that the applicant had failed to satisfy the first condition that: —
"New events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed".
He reached that conclusion by the following route. First he recorded that the applicant did not and had not disputed the wife's entitlement to one half of the capital assets. Second he surveyed the respective asset position of the parties on the basis of the disclosure which each had made in response of the order of the 12 th February. In relation to their very different pension entitlements the judge did not have the CETV values that he had asked for but gross fund values. He rejected Mr Bennett's argument that he should only have regard to 25% of each pension fund, being the proportion that might ultimately be realised in cash. Finally he concluded, adopting a broad-brush approach that the disparity between their current net worth (husband £91,500: wife £127,500) was off set by their respective pension fund values (husband £68,000: wife £5,000).
He then ended thus: —
"[46] The nature of the application with which I am concerned...
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