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Mann v Mann [2005] EWCA Civ 1339

Application by husband for permission to appeal financial provision orders. Application allowed.


Neutral Citation Number: [2005] EWCA Civ 1339






Royal Courts of Justice


London, WC2

Thursday, 13 October 2005

B E F O R E:




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(Computer-Aided Transcript of the Stenograph Notes of

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MR PHILIP MOOR QC (instructed by Alexiou Fisher Philips) appeared on behalf of the Appellant


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(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE THORPE: This is another application in an ancillary relief case where the applicant for permission is responsible for having caused huge difficulties and expense in the Family Division by a flagrant breach of the duty of full and frank disclosure, and then manipulation of the process of trial, failing to turn up, producing rather questionable medical certificates, failing to co-operate with his solicitors, all culminating in their decamping from the proceedings, leaving the judge with the burden of making a fair order without evidence or representation from the payer.

2. In the present case, the judge was not deciding the full range of relief available to an applicant wife since the parties had initially compromised in 1999, and under the 1999 order, the wife had received the former matrimonial home, subject to substantial charges, relatively modest lump sums, payable by two instalments, and a solid periodical payments order for herself and for the children of the family.

3. What came for trial before Charles J on 28 February were cross-applications: the husband seeking the downward variation of the 1999 periodical payments order; the wife seeking the arrears and also the capitalisation of her periodical payments order and security for the future payment of the children's periodical payments orders. Her case was squarely based on the husband's poor payment record, his repeated breach of the duty of full and frank disclosure, his manipulation of the trial process and his presentation of a dishonest case, if the testimony of his father and sister in South Africa was to be believed.

4. On the walk-out of husband and his legal team, the judge dismissed his application for downward variation. After a very careful analysis of all the voluminous material open to him, he arrived at a discretionary conclusion that it would be fair to the wife and to the husband if her periodical payments claim was capitalised in the sum of £1.3 million, to be dismissed upon payment of that sum.

5. The judge, in a brief paragraph, added that although he could not quantify the assets that could be made available to the husband, that lump sum was both fair to him and affordable in all the circumstances of the case.

6. The wife had given an undertaking on 3 March, the terms of which were broadly that she would not misuse the information as to the husband's financial affairs that surfaced during the trial process. The order of 11 March released the wife from that undertaking and also from the implied undertaking in relation to the use that she might make of the judgment of the court, the documents before the court, and the information produced and disclosed in the proceedings. We are not today in a position to evaluate criticisms of that discretionary decision since the proceedings after hand down judgment on 11 March have not been transcribed. We cannot therefore see the argument that was advanced in favour of release, or the judge's reasons for acceding.

7. The judge said that the payment of the lump sum should be stayed providing the husband sought permission to appeal by 23 May. If he sought such permission, then the judge said the stay was to be extended until the determination of the proceedings in this court. Accordingly, the office received on 23 May what I would describe as a bare minimum notice of application, but it was amplified by a skeleton argument settled by Mr Daniel Bentham.

8. The case was put before me on 29 July, when I ordered a one-hour oral hearing without notice. On the listing of the oral hearing, Mr Philip Moor QC has appeared to advocate Mr Bentham's skeleton argument. My initial approach to the application was one of something approaching distaste given the manner in which the husband had conducted his part in the trial process. However, having heard Mr Moor's submissions, I am driven to concede that there is arguable merit in both the grounds that he advances. They can be shortly recorded.

9. Given that the wife was 38 years of age and had been maintained by the husband for some 8 years since separation, the application of the Duxbury method resulted in future provision for 50.3 theoretical years. There is no instance of Duxbury being inflexibly applied in such circumstances, and the surer guide is the decision of this court in Fournier, a case very similar on the facts. The judge was referred to that case, but, of course, at that stage of the trial he had only counsel for the wife and no contrary argument. In explaining his quantification, Fournier does not come into the reckoning. The judge's explanation of his quantification is brief, certainly in contrast with the very full explanation of all the relevant developments and facts. The judge simply said:

"The wife is younger than the starting age in the Duxbury tables included in 'At a Glance'. That table shows that at age 40, £60,000 per annum would require £1.499M and £50,000 would require £1.175M. In my judgment from that guidance the wife's periodical payments should be capitalised at £1.3M to take account of her ability to work."

10. Mr Moor's second point is that, in allowing the wife an annual expenditure in that range, he was validating her current expenditure of £28,600 per annum on rent. The former matrimonial home, which came to the wife under the consent order, was only secure so long as the husband paid the interest on the first and second mortgage. That he had failed to do, so that in May 2004 the wife was obliged to complete a sale of the home at £855,000. After discharge of first and second mortgages and certain other liabilities, she was left with net proceeds of £308,000. She had not been able to invest that in an alternative home because she had to fund the litigation. Thus she had become a tenant.

11. The allowance of the rental element in her budget on a whole life basis requires at a capitalisation of £23,600 for every £1,000, an element of £675,818 within the £1.3 million on which the judge fixed. Well, says Mr Moor, the reality is that the judge's ancillary order that she should receive assessed costs in the sum of £323,000 will return to her the housing capital that she held in May 2004. That return will be augmented by a further £74,000 in respect of arrears, so that she will have £400,000 to put into the housing market.

12. Mr Moor realistically accepts that that would have to be supplemented, but suggests that it should not be supplemented beyond the amount of the first and second mortgages on the matrimonial home, which together totalled £327,000. So, says Mr Moor, her long-term future housing could obviously be secured by a payment of £327,000, rather than the £676,000 that the judge has effectively allowed her by adopting the Duxbury capitalisation. That point is also plainly arguable.

13. There is a need to balance the two sound points that Mr Moor has advanced against the reality that the husband is largely responsible for the outcome in the court below, that he has a very poor record in compliance, that further litigation between these two is fundamentally unattractive, and certainly further litigation should not put the wife at further peril. She has problems enough in endeavouring to enforce the outcome in the court below without having the risk of irrecoverable costs in this court.

14. The sensible way forward seems to me to be thus: recognising the force of Mr Moor's submissions, he is entitled, in principle, to permission. But, as he has himself suggested, these two would be very well advised to endeavour to negotiate or mediate an outcome rather than to litigate further. Whilst mediation would seem at first blush an unpromising remedy, I can see well that the wife and her advisers might be attracted by a slightly lesser bird in the hand than Charles J's bird in the bush. I would invite the office to send out standard letters to the parties, inviting them to mediate within the Court of Appeal's scheme, and no steps will be taken in the appellate process until that option has been exhausted. For a case of this sort, the Court of Appeal has the capacity to call upon one of a large number of highly experienced specialist mediators.

15. The other condition precedent to grant of permission must be to secure the wife against the eventuality of yet more litigation, the cost of which falls upon her simply because of the husband's disregard for orders of the court. Accordingly, the costs below of £323,000 plus security for the costs of an appeal, which I would assess at £40,000, must be brought into court by the applicant as a condition precedent to the exercise of the permission.


17. LORD JUSTICE MOORE-BICK: I also agree.

Order: application to appeal allowed. Costs below of £323,000 plus security in the sum of £40,000 to be paid by the applicant by 11 January 2006. There will be a stay in respect of the balance over £700,000. The stay in paragraphs 10 to 13 will continue until the appeal.