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Mann v Mann [2005] EWCA Civ 1339

This is a husband’s application for permission to appeal from a decision to capitalise periodical payments on the basis of a Duxbury calculation.

Mann v Mann [2005] EWCA Civ 1339

Court of Appeal: Thorpe LJ, Wall LJ, Moore-Bick LJ (13 October 2005)

Summary
This is a husband's application for permission to appeal from a decision to capitalise periodical payments on the basis of a Duxbury calculation.

Background
An initial ancillary relief order was made in 1999, providing for the transfer of the former matrimonial home (FMH) to the wife, modest lump sums and a periodical payments order (PPO) for the wife and the children. In 2005 cross-applications were made by the parties. The husband sought a downward variation of the PPO and the wife was seeking the arrears and the capitalisation of her PPO and security for the future payment of the children's PPO. The wife's case was based on the husband's poor payment record, repeated breach of full and frank disclosure, his manipulation of the trial process and his presentation of a dishonest case.

The husband's application was dismissed when he walked-out of the proceedings before Charles J. In the absence of the husband or his legal team the judge made an order that the wife's PPO be capitalised in the sum of £1.3 million. Whilst the judge could not quantify the assets that could be made available to the husband, that lump sum was deemed both fair to him and affordable in all the circumstances. That order was to be stayed if the husband sought permission to appeal within a specified time limit. On the day of the conclusion of the time limit an application from the husband was received.

Mr Moor QC for the husband sought permission to appeal on two grounds. Firstly, the judge's explanation for his quantification is based solely on the Duxbury tables. It was submitted that the case of Fournier v Fournier [1998] 2 FLR 990 is the surer guide for determining capitalisation in these circumstances. Secondly, the wife's figure of annual expenditure, used by the judge to calculate the lump sum, included an element for rent. The wife was a tenant because she had not been able to invest the proceeds of the FMH into an alternative property as she had to fund this litigation. However, the judge had ordered that the wife receive assessed costs for an amount that would return her to her previous housing position, in addition to the PPO arrears. Mr Moor argued that whilst this figure would have to be supplemented, it should not be supplemented beyond the amount of the first and second mortgages. However, the element of the lump sum representing rental needs exceeded this amount.

Judgment
Thorpe LJ commented that his 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, he found that the husband was entitled, in principle, for permission to appeal. However, he also said that both parties are to mediate within the Court of Appeal's scheme and that no steps in the appellate process would be taken until that option had been exhausted. In addition, the costs of the case below plus security of the costs of an appeal must be brought into court by the applicant as a condition precedent to the exercise of the permission.

Read the full text of the judgment here