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Radmacher and Judicial Discretion

David Burrows looks at Radmacher from a different angle - should the Court of Appeal challenged the judge's discretion?

image of David Burrows solicitor advocate

David Burrows, Solicitor Advocate

It is hard to read Radmacher v Granatino [2009] EWCA Civ 649 without the words of Baroness Hale of Richmond in Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40; [2005] 2 FLR 802 echoing as the text of the case unfolds. In Re J the Court of Appeal had allowed a father’s child abduction appeal on the ground that the judge below had elevated his concerns at certain of the father’s allegations ‘above a level that the evidence justified’. Baroness Hale (with whom the other four lords agreed) pointed out that the judge’s findings related to ‘credibility and primary fact with which, for all the reasons explained by Lord Hoffman in Piglowska v Piglowski [1999] 2 FLR 763 [at 2 FLR 784], an appeal court is not entitled to interfere’ (para [9]). ‘Only if a judge’s decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: see G v G [1985] 1 WLR 647, [1985] FLR 894.’

A judge’s decision is based on the facts as found by the court (including conclusions as to opinion evidence) and on the court’s findings on law (if any). This is the underpinning of the court’s discretionary decision. In the ancillary relief jurisdiction there is then a menu of orders available to the court and a list of factors (including the welfare of any minor affected by the decision and ‘all the circumstances of the case’) set out in Matrimonial Causes Act 1973 s 25 for the judge to bear in mind before arriving at his or her decision.

On appeal to the Court of Appeal Civil Procedure Rules 1998 r 52.11(3) defines that Court’s powers:

‘(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.’

Radmacher was a first appeal; but, as Baroness Hale stresses in Re J (above), on an appeal from a discretion-based decision (and this applies in any jurisdiction) the criterion for allowing the appeal must always be on G v G / Piglowska principles.

Of Mrs Radmacher’s £100M Baron J had given Mr Granatino around £6M; whereas the Court of Appeal gave him around £2M plus £2.5M in trust. This was the essential difference between them. In White v White [2000] UKHL [2000] 54; 2 FLR 981 both appeals were dismissed: ‘…applying the principles expounded in Piglowska v Piglowski [(above)] there is no ground entitling this House to interfere with the Court of Appeal’s exercise of discretion’. In the process of coming to that conclusion, Lord Nicholls of Birkenhead expressed an opinion which has totally altered the ancillary relief decision landscape.

The three judges decided that they could set aside Baron J’s order:

(1) For Thorpe LJ the wife need only to show ‘a sufficiently erroneous exercise of the judicial discretion to succeed’ in persuading the Court to set aside part or all of Baron J’s order (para [44]).
(2) Rix LJ held that it was sufficient to show that the judge had made three errors: she found the agreement to be ‘flawed and tainted’; the husband had agreed that he wanted nothing, but the judge had been in error to regard that as depriving him of the assistance of Matrimonial Causes Act 1973; and she did not allow sufficient discount as to his needs by reference to her findings on the agreement (para [79]).
(3) And Wilson LJ ‘finds her application of the existing law to the facts … to be plainly wrong’ (para [135]).

Wilson LJ comes the nearest to considering, albeit only tacitly, the ‘principles expounded in Piglowska’. In analysis of his decision to set aside Baron J’s order he criticises her, not on the basis of established contractual principles, but on the basis only of his opinion on five factors which he sets out at paras [137] – [144]; and he adds two further ‘general concerns’ of his own. If an order is set aside on the basis of law – which is what Wilson LJ says he is doing - should not the argument of the appellate court be more clearly based on established contract law principles on which the Lord Justice’s criticisms are founded?

Baron J’s decision was fully reasoned. Wilson LJ speaks of his admiration for her. The Court was entitled not to share her view of the pre-nuptial agreement. But because the law as it now stands is that such agreements are unenforceable, then the whole subject becomes not a matter of law, as it was half dressed up to be, but a feature of ‘all the circumstances of the case’. The setting aside of a judge’s discretionary decision demands a high appellate threshold. The Court could have said, as did Lord Nicholls, that though they did not agree with parts of the approach below, it was not outside the ‘generous ambit’ allowed to a judge? On Piglowska principles (as echoed in Re J) should they have set aside the decision below?

For the ancillary relief litigant, fascinating though the arguments in the Court of Appeal may be, and helpful though they may be for another day, the decision of the Court only adds to the uncertainty that infinite discretion presents. The less the practitioner can guess which way a judge will jump, the more the case will cost because it is more difficult to settle. If the appeal could go a variety of ways as well, then why not keep the litigation going to see if a better answer emerges, a client may say? Jarndyce v Jarndyce becomes a more frequent spectre stalking the hearths of broken families.

David Burrows
david.burrows@dbfamilylaw.co.uk