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Home > Judgments > 2008 archive

W & S (Children) [2008] EWCA Civ 1207

Applications by mother for permission to appeal, out of time, orders arising from financial provision for her daughter. Applications refused.

The mother was appealing four separate orders relating to a wide range of issues including the housing fund provided and periodical payments. A Taylor v Lawrence application for an increase in the housing fund had already been refused in 2004 and the fund set at£1.1m by the Court of Appeal in 2006. A house had still not been bought however and Bennett J had refused to increase the fund to allow for inflation. Bennett J had increased periodical payments from £55,000 to £75,000 and set increases at RPI which the mother also sought to challenge. A s91(14) order was also challenged

In this judgment, Wall LJ reviews each of the four applications in turn and rejects each one primarily on the grounds that the judges concerned were acting well within their discretion. In particular Bennett J had been right to refrain from increasing the housing fund as this had been refused by the Court of Appeal and Sch1 of the Children Act prevents a second application for settlement of a property order. He also found that Bennett J’s assessment of periodical payments had been well reasoned and would not have been any different had the judge explicitly referred to two other cases presented to him by counsel. Finally Wall LJ also confirms, as he had been asked, that there is no reason for Bennett J to recuse himself from any further litigation.  

_________

Neutral Citation Number: [2008] EWCA Civ 1207

Case No: B4/2008/2069/2070/2067/2068
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM
1. An application for permission to appeal against the decision of Bennett J given on 5 November 2007, filed on 19 August 2008
2. An application for permission to appeal against the decision of Pauffley J
given on 18 April 2008, filed on 19 August 2008.
3. An application for permission to appeal against the decision of Bennett J given on 9 May 2008, filed on 19 August 2008.
4. An application for permission to appeal against the decision of Bennett J given on 21 May 2008, filed on 19 August 2008.

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/11/2008
Before :

LORD JUSTICE WALL

S (A Child) and W (A Child)
- - - - - - - - - - - - - - - - - - - - -
Between :

KSJ (Appellant)

- and - 

WRW (Respondent)

(Transcript of the Handed Down Judgment of
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Andrew Veen and Brian McClure acted pro bono on behalf of the Appellant
The Respondent was not represented

Hearing date: 15th October 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court

Crown copyright©

Lord Justice Wall: 
1. There are before the court four applications for permission to appeal issued by Ms J, who is the mother of a child whom I will only identify by the initial T.  T was born on 12 March 1997 and is now 11. The applications for permission to appeal all derive from the financial dispute between T’s parents over different aspects of her support.

2. In chronological order of the decisions in relation to which permission to appeal is sought, the  applications before the court are as follows (in each case I have highlighted the date of the decision which Ms J seeks to challenge) : -

(1) An application for permission to appeal against the decision of Bennett J given on 5 November 2007, filed on 19 August 2008.
(Court of Appeal reference B4 / 2008 / 2067)
(2)  An application for permission to appeal against the decision of Pauffley J given on 18 April 2008, filed on 19 August 2008.
(Court of Appeal reference B4 / 2008 / 2069)
(3)  An application for permission to appeal against the decision of Bennett J given on 9 May 2008, filed on 19 August 2008.
(Court of Appeal reference B4 / 2008 / 2070)
(4) An application for permission to appeal against the decision of  Bennett J given on 21 May 2008, filed on 19 August 2008.
(Court of Appeal reference B4 / 2008 / 2068)

3. For the avoidance of doubt, I should make it clear that I also have in my papers an appellant’s notice filed on 25 September 2008 (Court of Appeal reference B4 2008 / 2325). This, however, appears to relate to a hearing before McFarlane J on 24 September 2008. Although I do not have an order made by the judge on that day, it is apparent from the attendance note in the papers that he put the matter over to be heard by Bennett J on 2 October 2008, when the latter apparently had the whole day available. Nothing therefore turns on McFarlane J’s order, which has plainly been overtaken by events, and I propose to say no more about it.

4. When I heard the applications orally on 15 October 2008, Mr. Andrew Veen, who is acting for the mother on what he described as “public assess”,  produced a skeleton argument prepared by Mr Nicholas Padfield QC and himself relating to only one  aspect of the case – what Mr. Veen called the “housing provision”. This, he submitted, was the pressing issue. However, as the skeleton argument on this one aspect ran to 134 paragraphs over 48 pages, I decided that the best course was  to hear Mr. Veen’s submissions and then to reserve judgment. I made it clear to Mr. Veen that I intended to deal with all the applications before the court, but that if I felt I did not have sufficient information on any particular aspect to make a decision, I would relist that matter for further argument. I also made it clear that I would consider any further written submissions which Mr. Padfield and Mr. Veen might wish to send me.

5. In the event, I have indeed received further submissions from Mr. Padfield and Mr Veen, and in the result I feel that I have sufficient information to deal appropriately with all the matters before the court.

6. I should, however, also record that on 15 October 2008, Mr Veen informed me that on 2 October 2008, Mr. Padfield and he had invited Bennett J to recuse himself.  Mr. Veen further informed me that the judge had declined to adjudicate upon the point, but had stated that he would be content for the application to be considered in the context of the current applications.

7. I also think it worthwhile recording that on 13 August 2004, Bennett J concluded  his first and highly significant 73 paragraph judgment with these words: -

Finally, I hope that this hearing really will represent the final round of hostilities. The mother and the father have a lovely daughter who brings them much happiness and to whom they are both devoted. If I may put in colloquially and bluntly: for her sake, give her a break.

8. Sadly, litigation between the parents has continued unabated. I thus have what is described as a “transcript” of a judgment given by Macur J about schooling  on 6 March 2008. In the first paragraph of that judgment, the judge comments: -

counsel for the father calculates that since April 2000 almost 100 orders have been made and the case has occupied the time of 11 judges of the Division. The latest application concerns (s)chooling the court must make yet another decision for this poor beleaguered girl apparently aware that she is in the middle of her parents’ ongoing and intractable disputes based largely upon their  mutual distrust and dislike of each other.

9. In my judgment these observations are relevant to the mother’s applications, for reasons which, I think, will become apparent.

The application under Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528
10. Before turning to deal with each of Ms J’s applications for permission to appeal in turn, I need to record that on 15 October 2008 Mr Veen informed me that his client had made an application pursuant to the decision in Taylor v Lawrence to reopen the decision of this court  made on 26 July 2006 (Thorpe, Laws and Hallett LJJ) as a result of which Ms J’s appeal against Bennett J’s award of £800,000 as a housing fund for her and T (see paragraph 1 of his order finally perfected on 14 October 2004) had been allowed, and the figure in paragraph 1 of Bennett J’s order increased to £1.1 million. Indeed, a copy of the application is in my papers.

11. Mr. Veen also informed me – as is the case – that the mother’s application pursuant to Taylor v Lawrence has been refused by Thorpe LJ on the ground that it did not fulfil the  Taylor v Lawrence criteria. Thorpe LJ had also pointed out, I was told, that the mother had succeeded on the appeal.

12. As I understand the matter, Thorpe LJ’s refusal of the application is final: see CPR 52.17(7).

13. I am conscious, of course, that the Taylor v Lawrence application is not before me. However, an examination of this court’s decision in relation to the figure of £1.1 million (the relevant judgments are all in my papers) seems to me to demonstrate that it has important ramifications for several of the mother’s applications for permission to appeal.

14. The figure of £800,000 derives from paragraph 1 of the order made by Bennett J pursuant to his judgment dated 14 August 2004, of which there is a transcript in my papers. As I have already pointed out, it does not appear that the order was perfected until October 2004, and my copy bears the court stamp 1 March 2005.

15. From the judgment given by Thorpe LJ on 19 April 2005, it is plain that initially, he refused permission to appeal against any part of Bennett J’s order. However, it is equally plain that at an oral hearing before the full court on 19 April 2005 (Thorpe, Scott Baker and Lloyd LJJ) the court was persuaded by counsel acting for the mother to change its mind. The result was that the mother was given permission to appeal on the question of the housing fund alone.

16. When the full court next assembled on 15 March 2006, it did  not feel it had sufficient information to make a decision, and the appeal was adjourned. However, on 26 July 2006,  the court allowed the mother’s appeal on this point and substituted the figure of £1.1 million as the “housing fund”.  The court expressed itself “perfectly satisfied that there are properties that will meet the needs of this child within that price bracket”.

17. Several important issues seem to me to flow from this conclusion, and from the refusal of the Taylor v Lawrence application. I propose to select only two. The first, and perhaps the most important, is that, in my judgment, the housing fund for Ms J and T is now fixed at £1.1 million. There can be no question of it being varied or increased. In any event, and even without the refusal of the Taylor v Lawrence application, paragraph 1(5)(b) of Schedule 1 to the Children Act 1989 prevents a second application to the court for a settlement of property order.

18. There is, of course, one proviso, namely that the court retains the jurisdiction under paragraph 3(1) of Bennett J’s original order to increase what is there described as the fund for “furnishing and equipping” the property. Paragraph 1(5)(a) of the Children Act 1989 clearly provides that a further order may be made under paragraph 1(2)(c) of Schedule 1.

19. The second consequence of the refusal of the Taylor v Lawrence application is that Bennett J’s initial order based on his October 2004 order (apart from the figure of £800,000 relating to the housing fund in paragraph 1 of the order) was correct. An application was made for permission to appeal against it: that application failed, save in so far as it related to the sum of £800,000. This means, in particular, that Bennett J’s assessment of the level of periodical payments was correct, as were the other paragraphs of his order. The significance of these two issues will, I think, become clear, as I consider Ms J’s  applications for permission to appeal.

20. Finally before turning to deal with each application for permission to appeal individually, I record simply that they are all out of time. I did not, however, hear Mr. Veen on this point, and as each relates to financial support for a child, I propose  to take no point on the fact that Ms J is out of time, and to consider each application on its merits.

(1) The application for permission to appeal against the decision of Bennett J given on 5 November 2007, filed on 19 August 2008
(Court of Appeal reference B4 / 2008 / 2067)

21. As at this date, it appears that the mother was living in rented accommodation in Knightsbridge (the rented property).  By paragraph 1 of his order, the father was ordered to continue to pay the rent on the rented property until 30 March 2008, by which date the mother was to vacate it (paragraph 2). She was directed in paragraph 3 to identify a suitable property to purchase with a view to completion prior to 30 March 2008. By paragraph 4, the father was directed by 15 January 2008 to make the settlement of £1.1 million pursuant to the judge’s 2004 order as varied. Without prejudice to both sides’ assertions as to the level of periodical payments (i.e. that they were too high or too low) they were varied with effect from 1 December 2007 to £42,000 per annum (paragraph 5).  The father was directed to discharge medical bills, once again without prejudice to his assertion that none was owing (paragraph 6).  The matter was to be reconsidered at a hearing in May (see below). There followed a number of conventional directions, including a listing of the mother’s application for variation of the periodical payments order before Bennett J (if available) on 6 and 7 May 2008, including an order that the father should provide his US tax returns for 2004 to 2006, and for 2007 if it had been filed by May 2007 (paragraph 9).

22. Finally, the judge  dismissed an application by Ms J that T be separately represented on the application for a variation of periodical payments (paragraph 14) and also dismissed her application for the immediate payment of  the £75,0000 furnishing fund, which, he ordered,  was to be paid in accordance with the provisions of the October 2004 order (paragraph 15). The judge reserved costs (paragraph 17).

23. On this occasion, we have Bennett J’s written reasons for refusing permission to appeal. They are in the following terms: -

Counsel sought permission to appeal on two grounds:

(1) Not increasing the periodical payments to £60,000 p.a. I increased them from £30,000 to £42,000 without prejudice to either party to argue at the hearing in the Spring of 2008 that the increase should be more or less, and that it should (or should not) be backdated to 31 January 2005

(2) my refusal to join the child as a party. I took the view that the mother’s applications were for variation of maintenance and do not warrant separate representation. It seemed to me that previous observations of the Court of Appeal went to desirability of representation where the location and type of property was in question. That now us no longer the case.

24. Mr Padfield QC and Mr. Veen have, helpfully settled composite grounds of appeal in one document. In section 5 of the appellant’s notice in relation to Bennett J’s order of 5 November 2007, they refer me to ground 6 of the grounds of appeal, and add that if this court takes the view “that Bennett J’s decision on 9 May 2008 did not preclude him from addressing the applications referred to in paragraphs 4, 5 and 6 of the draft order then this appeal would be redundant”. It seems to me, however, that I must nonetheless address the merits of the application.

25. The composite grounds of appeal number 20, and the document itself is some 12 pages long. I do not, accordingly, propose to set out the detail in this judgment.  I have say, however, that I find ground 6 not altogether easy to follow. Unfortunately, I do not have a transcript of the judgment which the judge gave on 5 November 2007, but what the grounds of appeal appear to be seeking is an increase in the figure of £1.1 million awarded by this court by reference to the “investment profits” which it is said the father had derived from the funds he had provided for the settlement.

26. In my judgment, any such claim is inadmissible.  Neither Bennett J’s order nor the order of this court permits the settled sum to be increased, and neither order mentions interest. The settlement itself makes it clear that a fixed sum is to be provided.  If Bennett J declined to order the father to pay any capital sum by way of settlement beyond that ordered by this court, he was plainly right to do so. The contrary seems to me to be unarguable.

27. It does not appear that Ms J pursued the applications for permission to appeal which Bennett J refused. For the avoidance of doubt, however, I should record that in my judgment he was right on both of the issues which I have recorded in paragraph 23. He had a plain discretion in relation to the quantum of periodical payments – which were in any event interim – and it would be highly unusual for a child of T’s age to be separately represented on an application to vary a periodical payments order.

28. It follows that I do not think that an application for permission to appeal against any part of the order of 7 November 2008 would stand a reasonable prospect of success, and Ms J’s application for permission to appeal against the decision of  Bennett J given on 5 November 2007will be dismissed.

(2) The application for permission to appeal against the decision of Pauffley J given on 18 April 2008, filed on 19 August 2008
(Court of Appeal reference B4 / 2008 / 2069)

29. In this order, Pauffley J gave a number of what seem to me standard directions. However, she refused an application by Ms J to adjourn the hearing fixed by Bennett J for 6 and 7 May and ordered Ms J to pay 80% of the father’s costs of the application, to be assessed if not agreed.

30. The application for permission to appeal in this instance relates to the costs order made by the judge. In relation to this application, section 5 of the composite grounds of appeal says: “In the event the Court of Appeal holds that Bennett J had jurisdiction to revisit Pauffley J’s order in so far as it related to costs and should have done so then this appeal will become redundant”.

31.  I have to say I do not see how (save by consent or at Pauffley J’s direction) Bennett J would have jurisdiction to interfere with an order for costs made by Pauffley J.  I will, of course consider Bennett J’s order of 21 May 2008 in due course. In the meantime, however, it seems to me that I have to come to a view about whether or not Pauffley J was entitled to make the orders she did.

32. I do not have a copy of the judgment which Pauffley gave on 18 April 2008, nor of her reasons for the orders she made.  As is well known, however, judges of the Family Division have a very broad discretion when it comes to costs, and if Pauffley J (who is a very experienced judge of the Division) took the view that Ms J should pay 80% of the father’s costs of the application before her; (a) she must have had a very good reason for making such an order; and (b) it is highly unlikely that this court would interfere with it.  The refusal of an application for an adjournment is, likewise, a case management decision very much a matter for a judge of first instance.

33. In these circumstances, I do not have any material which leads me to think that  an appeal against Pauffley J’s order of 18 April 2008 would stand any reasonable prospect of success, and Ms J’s application for permission to appeal against it will also be dismissed.

(3)  The application for permission to appeal against the decision of Bennett J given on 9 May 2008, filed on 19 August 2008
(Court of Appeal reference B4 / 2008 / 2070)

34. This is a complex order, and perhaps the most important of those with which I have to deal. In paragraph 1, the judge dismissed Ms J’s application for a review of the housing fund. In paragraph 2 he dismissed her application for a further lump sum for the purchase of a car. He did, however, in paragraph 3 make a further lump sum of £12,500 in respect of the “furnishing fund” for the trust property, that sum to be paid on the exchange of contracts for its purchase. In paragraph 4, he dismissed Ms J’s application for arrears of maintenance and in paragraph 5 he dismissed her application for the reimbursement of the purchase of a computer for T. In paragraph 6, he varied the periodical payments for T to £55,000 per annum with effect from 1 May 2008 and to £75,000 either from 31 August 2008 or the purchase of the trust property, whichever was the earlier; he directed that the sum of £75,000 per annum should be payable until 12 March 2013, when it would be reviewed. He also provided for index linking of the payments by reference to the RPI.

35. The judge then gave directions designed to ensure that a trust property was purchased by 31 August 2008.  I do not propose to set out the detail at this point, save to say that in paragraph 9 he directed that the mother should not limit her search for a property to the Knightsbridge and Chelsea area.  In paragraph 10, the judge  made an order under section 91(14) of the Children Act 1989 preventing both parties until 12 March 2013 from making ay further applications to the court save with its written permission, with  an exemption in relation to aspects of the father’s contact with T. The judge refused the father’s application for the return of T’s passport and he refused the mother’s application for permission to appeal against the dismissal of her applications for a review of the housing fund and for a lump sum to purchase a car.

36. This is, of course, a summary of the order. Reference should be made to the order itself for its precise terms and effect. Fortunately, however, on this occasion, I have the advantage of a transcript of Bennett J’s judgment.

37. The judge begins by sketching in the background, with particular reference to his judgment of August 2004, and to the appeal whereby his figure of £800,000 was increased to £1.1m. In paragraph 9 he refers to  his order of 5 November 2007, and records that the father had raised a mortgage on his London house for £1.1 million. After paragraphs recounting the litigation over T’s schooling, the judge records the father’s leading counsel’s invitation to him to deal with two outstanding points: - (1) what I will call the paragraph 1(5)(b) point – see paragraph 17 above; and (2) the date of which the periodical payments for T at the rate of £60,000 should start.

38. The judge recorded Mr Veen’s submissions on the  first point as follows:-

15. Mr Veen, the mother’s counsel, conceded that the court had no jurisdiction pursuant to schedule 1 of the 1989 Act to vary the figure of £1.1 million by increasing it.  However, he contended that, notwithstanding paragraph 1(5)(b), I nevertheless had jurisdiction, whether because T was a ward of court and/or under the court’s inherent jurisdiction, to increase the sum as a matter of enforcement.  Ms Bangay QC contended to the contrary.  Having heard the submissions, I told counsel that I was against Mr Veen’s contentions and I would give my reasons in my judgement.  This I now do.

16. Mr Veen’s submissions, as I understood them to be, were as follows.  The reality of the housing award at its present level has devalued against increases in prime central London properties.  If a property is now purchased, T will be deprived of the full value of the original award as amended by the Court of Appeal.  T’s property rights should have been put in place by the father, irrespective of any criticisms of the mother.  The father has had the benefit of the delay of T acquiring a property. The father has been able to mortgage his London house and that property, therefore, is in essence the source of the funds to provide the housing award.  Accordingly, bearing in mind that T’s welfare is paramount under section 1 of the Children Act 1989, a proportionate share of the current value of the father’s property should be treated as profits attributable to T.  Thus my original award of £800,000 is roughly 25 per cent of what the father now says his London property is worth, £1.1 million is 33 per cent.  The father’s property should now be valued and T should have a percentage of its increase in value since 2004.

39. The judge rejected this submission. In my judgment, he was plainly right to do so.  Mr. Veen’s  argument is inadmissible for all the reasons I have already set out. The Statute plainly forbids a second application, and the attempt to use the jurisdiction to award further lump sums (which, of course remains open)  is, as the judge himself designated it, an attempt to circumvent paragraph 1(5)(b).  Quite apart from the fact that the Taylor v Lawrence application has been refused, it is, in my judgment, trite law that a simple change in values brought about by inflation is inadequate to enable a court to vary a lump sum or property adjustment order: - see Rayden & Jackson on Divorce and Family Matters, 18th edition, volume 1 at paragraph 18.38 and the cases there cited.

40. In my judgment, the matter is not improved by the manner in which it is argued in the grounds of appeal settled by Mr Padfield and Mr Veen,  nor by the “Skeleton Argument for Permission to Appeal: Housing Provision” to which reference has already been made.

41. In the latter document, counsel raise three issues in relation to what they describe as “a summary of the core issues on housing provision”. The first is what I have described as the paragraph 1(5)(b) point, which I have already answered in the father’s favour. The second and third are; (2)  whether or not the father’s actions in mortgaging his property with the consequence that the sum of £1.1 million “has been sitting in a designated account with the Royal Bank of Scotland ready to be used to purchase the property” amounts to sufficient compliance with Bennett J’s original order as varied by this court; and (3) whether or not it was open to the judge to make a finding of fact that the father had made the money available; (a) in the absence of documentary evidence, and on the basis of the judge’s assessment of the father as being in other respects untruthful; and (b) by 15 January 2008.

42. I do not think that there is anything in any of the issues raised. I was told that the judge had been invited on 2 October to stay the purchase by the father of a particular property. The plain implication of that application (to which the judge acceded) was that the funds to purchase the property were available.  I see nothing in the transcript of Bennett J’s judgment of 9 May which would prevent him making a finding of fact that the father had obeyed paragraph 4 of his order of 5 November 2007.

43. The simple fact of the matter is that, despite the judge’s best endeavours, a property has not been acquired. It is not for me to apportion responsibility for that state of affairs.  However, Ms J must understand the limited functions which I exercise on an application for permission to appeal, My function is to review the decisions of the judge. Has he made any errors of law? Has he exercised his discretion appropriately?  I am not here to review what happened in 2004, save in so far as it touches on or governs the court’s current jurisdiction. Furthermore, and the point has to be repeated, the refusal of the Taylor v Lawrence application plainly fixes the housing fund.

44. As I have already indicated, the document entitled “Skeleton Argument for permission to appeal: housing provision” runs to some 135 paragraphs over 48 pages. It contains a great deal of learning. In my judgment, however, it does not advance Ms J’s case.

45. In my judgment, the judge was plainly right to dismiss Ms J’s application for a review of the housing fund. Indeed, he had no alternative.  Both for the reasons the judge himself gives, and for the Taylor v Lawrence reasons, it is not open to this court to review the housing fund either.

46. What the judge did later in the order on the housing front was to give directions designed to ensure that a property was purchased for T and Ms J by 31 August 2008. What he did was to direct Ms J to provide particulars of three suitable properties by 2 June 2008; the father was to visit each and was to provide his reasons to the mother for acceptance or rejection by 16 June: the parties were then to attempt to reach agreement about a property by 23 June. If they did not, written submissions on the point were to be made to the judge by 30 June and he was to decide, as soon as practicable thereafter, which property was to be purchased. In any event, contracts for the purchase of a property were to be exchanged, and completion was to take place by 31 August 2008.

47. The first point to notice about this order, is that Bennett J was plainly exercising a well established jurisdiction which entitles a judge to give directions for the implementation of a court order.  The judge’s order for the purchase of a property had been made in 2004: this Court’s order had been made in July 2006. No property had been purchased. Plainly, this state of affairs was not in the interests of T. So no objection can be taken to what Bennett J did on jurisdictional grounds.

48. The second point to note is that - apart from broadening the area in which the mother was to search – the order puts her in the driving seat. It is she who chooses the properties, and the father who is given the right to object. I can see nothing  objectionable in this.

49. Finally, I can see nothing wrong in the judge seeking to impose closure by directing that the completion of the chosen property should take place by 31 August 2008.  As I have already pointed out in paragraph 47, the judge was entitled to take the view that it was high time a property was purchased, and that unless he intervened a purchase would simply not occur.

50. In my judgment, therefore, no complaint can legitimately be made by Ms J in relation to paragraph 9 of the order made by Bennett J on 9 May 2008

51. Mr. Padfield and Mr Veen attacks other parts of  this order.  In their grounds of appeal, they deals firstly with the order under section 91(14) of the Children Act 1989 (the section 91(14) order). They submit that it was contrary to natural justice and in breach of the mother’s ECHR Article 6 rights.

52. I am unable to accept this submission. Firstly, it is plain that the judge considered the application with care. Secondly, he directed himself by reference to the leading case on the subject, namely the decision of this court in  Re P (a minor) (Residence order: Child’s welfare) [2000] Fam 15 and the well-known guidelines given by Butler-Sloss LJ (as she then was). Thirdly,  there was plainly abundant material upon which he could exercise his discretion to make an order. Fourthly, and this is the Article 6 point,  the order does not bar Ms J from the court: what it does is to provide that if she wishes to make an application, she must obtain leave. Any reasonable application will, therefore, be entertained.  Finally, of course, the judge fully explained what he was doing, and why. The mother was represented before the judge. 

53. For all these reasons, Ms J’s application for permission to appeal against the section 91(14) order is without merit.

54. Mr. Veen attacks various aspects of the periodical payments claim. It is notable that  the judge’s reasoning on this point takes up the bulk of his judgment.  It must, however, be remembered that the court has to start from the premise that the October 2004 order for periodical payments was correct, as was the amount contained  in the order of 5 November 2007.

55. I have to say that, from an appellate perspective, the judge’s approach cannot be faulted.  The judge reminded himself of what he had decided in 2004. He spent a considerable time discussing the mother’s income.  In relation to her capital, he was critical of her for holding on to a particular property. He described  leading counsel rightly putting to the mother in cross-examination that the budget for herself and T was “a core document”. He described the mother’s approach to the topic as “woeful”. He regarded what the mother put forward as “forensically driven” and bearing “little if any relation to reality”. These –  and others - were all observations he was clearly entitled to make.

56. The judge then spends a number of pages dealing with the father’s position. Once again, he is critical. However,  after a detailed analysis he comes up with a figure of £75,000 per annum for periodical payments. He says that the father cannot complain about the figure – and (a comment on which the mother relies in support of her application that Bennett J recuse himself) he added “if the mother thinks that my award is unfair, i.e. it is for too low, then I am sorry to say that she has only herself to blame for failing to produce a coherent and researched budget”.

57. The judge concludes this section of his judgment with these words: -

In my judgment these periodical payments should be payable until T reaches the age of 16 years. The figure that I have taken takes into account that the periodical repayments will be payable when T is in her 16th year and that costs will have risen by then and I feel I may be over-compensating T in her earlier teens. However, it is in T’s best interest that all litigation between these roaring parents should cease for a prolonged period of  time. By the time T is 16 her future will be clearer, in particular as to her further secondary and tertiary education. Hopefully by then the deep antipathy between the parents should have abated and they may even be  able to agree whether and if so what level the  periodical payments should be increased without the necessity for any litigation.

58. The judge then deals under a separate heading with the date on which the order of £75,000 is to start. Earlier in his judgment, he had dismissed the mother’s for arrears of maintenance under the October 2004 order as varied.

59. The difficulties which, in my judgment, Ms J faces on this aspect of the case are threefold. The first is that the judge was exercising a discretion based on the material he had before him – a discretion made all the broader because he was considering support for a child and not exclusively for an adult. The second is that his figures are carefully reasoned and based on those from which he started in 2004. The third is that the figure of £75,000 per annum is plainly well within an acceptable exercise of discretion.

60. For these reasons I cannot see any basis upon which this court could or would interfere with the figure of £75,000 per annum  which he judge reached. Equally, his decision to use this figure as the basis for RPI increases until  T was 16 seems to me a perfectly proper exercise of discretion. It does not prevent an application to vary before that date, although any such application would need to be reasonably  based  in order to overcome the section 91(14) order. The provision of periodical payments for this period, moreover, may legitimately be seen  as part of the judge’s overall attempt to avoid further applications to the court.

61. In relation to backdating and to alleged arrears of maintenance, the judge sets out the history, and concludes: -

What I propose to do is as follows. The new periodical payments will not start until the purchase of the new house is completed. The interim figure of £42,000 will be increased to a figure of £55,000 payable in advance from 1 May 2008 payable in advance from 1 May 2008, that is £55,000 per annum. There will thus be a staged increase in the periodical payments. I appreciate that the father still has more rent to pay on EG in the immediate future. On the other hand, in my judgment, T’s interests are best served  by this staged increase. I see no reason why I should not, in T’s best interests withhold part of the increase in her periodical payments to persuade the mother to get on and find a new home. This is what I did in October 2004 and again in November 2007. In my judgment, it is even more appropriate now.

62. I remind myself of this court’s function. Bennett J is the judge on the ground, who knows the case and has the conduct of it. This court reviews. I can see nothing remotely objectionable in what Bennett J has done. His figures are within acceptable brackets. Quite when orders should commence are matters of discretion with which this court is reluctant to interfere. In my judgment, there is no reasonable prospect of success in any attack on Bennett J’s orders for periodical payments.

The application for a new car and other orders
63. The judge dealt with the car in paragraph 64 of his judgment, which I will not repeat. In my judgment he was entitled to deal with the matter as he did, and an appeal against this part of the order would,  in my judgment, stand no prospect of success. Similar considerations apply to the payment of bills and debts; the payment for payment of medical bills and the computer.

64. Having considered carefully the order dated 9 May 2008, Bennett J’s judgment underlying it and  the detailed attacks on it made by Mr. Padfield and Mr. Veen, I have reached the very clear conclusion that an appeal against the order would stand no reasonable prospect of success, and the application for permission to appeal is, accordingly, refused.

(4) An application for permission to appeal against the decision of Bennett J given on 21 May 2008, filed on 19 August 2008
(Court of Appeal reference B4 / 2008 / 2068)
65. By this order Bennett J made no order as to costs in respect of the hearings on 6, 7, 8 and 9 May 2008.

66. In this instance, I have a copy of the short judgment given by the judge  in which he explains his reasons for making no order as to costs. He directs himself, correctly, by reference to CPR rule 44.3 He then identifies a number of factors which he weighs in the scales before deciding that the right order is no order as to costs. There is nothing in the order to suggest that he was dealing with the costs of any other made by Pauffley J.

67. As I remarked with considering the order as to costs made by Pauffley J, costs are pre-eminently an area in which the discretion of the trial judge is very wide, and this court can only interfere if the judge has made an error of law or exercised his discretion in a way which vitiates his decision.

68. In the instant case, Mr. Padfield and Mr. Veen seeks to persuade me that the judge’s order was wrong. Ingenious as the argument is, I think it untenable. This is a clear and well-founded exercise of judicial discretion, pure and simple. That is the long and short of it and, frankly, the end of the matter.

69. Mr. Padfield and Mr. Veen also argue that the judge should have interfered with Pauffley J’s order made on 18 April 2008. I have already considered this. Counsel do not explain the jurisdictional basis upon which  the judge could do so. The phrases “contrary to natural justice and the administration of justice” and contrary to the mother’s “Article 6 rights” occur here as elsewhere in the grounds of appeal. I do not find their indiscriminate use helpful. There is in my judgment nothing unlawful in Bennett J’s order for costs, there is nothing contrary to either natural justice or the administration of justice, and I cannot see how an order that there be “no order” as to costs infringes Ms J’s right under article 6.

70. It follows that an appeal against Bennett J’s costs would stand no reasonable prospect of success, and the application for permission to appeal will be refused.

71. It also therefore follows that all four applications for permission to appeal will be dismissed.

Footnotes
72. I would not want this judgment to be thought critical of Mr. Padfield and Mr. Veen. Both are, I understand, acting “on public access” and their client should be grateful to them for the meticulous care with which they have addressed the issues in this case.  The fact that their applications fail is not their fault.

73. Secondly, since my opinion is sought on the point, and whilst I regard it ultimately as a matter for the judge, I can see no reason why Bennett J should recuse himself in this case. The remarks upon which Ms J relies are, in my judgment, wholly inadequate to demonstrate bias, and the judge has, moreover, an encyclopaedic knowledge to the case which renders it wholly appropriate, in my view, that he should – subject to this availability - continue with it.

74. Thirdly, I do not propose to continue the stay which I granted on 15 October 2008 beyond the date upon which this judgment is handed down.  I very much hope that my refusal of the mother’s applications will bring about swift and sensible discussions between T’s parents for the acquisition of a suitable property for the mother and T: if not, a further application will need to be made to Bennett J for directions.

75. Finally, and lest it be thought that I have overlooked them,  I should make reference to two of the  authorities to which Mr. Padfield and Mr. Veen referred, and on which they relied: - namely the decision of this court in Re P (child: financial provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, and the decision of District Judge Million in Re C (A child; financial provision) of which I have been provided with a transcript.

76. In my judgment, neither case assists Ms J in these applications. Very substantial extracts from the judgments in Re P were cited both by  Bennett J  in his judgment dated 13 August 2004, and in the judgment of Thorpe LJ on 15 March 2006. The latter was of the clear view that by taking the Re P  figure for housing as a benchmark and scaling it down proportionately “to  reflect the disparity in wealth between the two men” the judge had adopted “an erroneous approach”. However, that approach was corrected by this court when making an award of £1.1 million, and as I have already stated more than once, that figure is now fixed. The application for permission to appeal against Bennett J’s order for periodical payments did not succeed, and in my judgment Bennett J was correct was correct when he stated at paragraph 50 of his judgment given on 9 May 2008, that Re P did not relate to an application to vary periodical payments and was thus of no assistance to him.

77. As to  Re C , which post-dates Re P, the district judge, on the particular facts of that case, awarded a housing fund of £2m. For the reasons I have already given, I do not think that the selection of  this figure by the district judge advances Ms J’s case. As to periodical payments, the district judge’s figure was £72,500. The district judge accepted that a “broad brush” approach was appropriate. The mother in that case was not, as I read the judgment, in gainful employment. One issue was whether or not she was being supported by another man.

78. Bennett J does not record in his judgment of 9 May 2008 being referred to Re C. Had he been, I do not think it would have made any difference to his decision to make an award of £75,000 per annum in T’s favour. In my view DJ Million’s decision is an example of the application of an experienced judicial discretion to particular facts: nothing more. Like all cases in the Family Division involving money and children, it is heavily fact dependent, and, even if it had been cited to Bennett J it would not have been binding on him. Thus although the case features large in counsel’s grounds of appeal, I do not think that it advances Ms J’s case.

79. I have added these observations in response to the sustained arguments advance to me by Mr. Veen. I have also read the additional material submitted. None of it, however, causes me to change my view, and Ms J’s four applications for permission to appeal will be dismissed.