AlphabiolabsBerkeley Lifford Hall Accountancy ServicesIQ Legal Training

Home > Articles > 2017 archive

Finance and Divorce Update, November 2017

Rose-Marie Drury, Senior Associate, Mills & Reeve LLP analyses the news and case law relating to financial remedies and divorce during October 2017.

Rose-Marie Drury, Senior Associate, Mills & Reeve LLP

As usual, this month's update is divided into two parts:

A. News in brief

Divorce law incentivises people to exaggerate claims of "behaviour" or adultery

Research published by the Nuffield Foundation, led by Elizabeth Trinder, has concluded that divorce law in England and Wales is incentivising people to exaggerate claims of unreasonable behaviour or adultery in order to get a quicker divorce.

In 2015, 60% of English and Welsh divorces were granted by proving adultery or unreasonable behaviour. In contrast in Scotland, where the law and procedure is different, it was just 6%. In some countries fault has been abolished or is just one option among several.

The study found problems of parties exaggerating behaviour allegations to get a quick divorce continue and have worsened in some respects. Fault continues to be relied on to secure a faster divorce. Parties often feel pressure to exaggerate allegations or retrofit the reasons for their separation into one of the five facts, even though the court's expectations of what is required to make out each fact is now actually very low. Whilst the court has a duty to inquire into allegations; the research found that in undefended cases the court only has the capacity to take the petitioner's allegations at face value. 

The study also found no evidence that fault prevents or slows down the parties' decision to divorce but did find evidence that producing evidence of fault can create or exacerbate unnecessary conflict with damaging consequences for children.

The research proposes a new notification system for divorce to be available if one or both parties register that the marriage has broken down irretrievably and after a minimum period of six months the intention to divorce is confirmed by one or both parties.

The research follows closely on the heels of recent Official National Statistics which show that last year there was a 5.8% rise in the divorce rate.  However, the rate remains over 20% lower than the peak seen in 2003/2004. 

Child maintenance in the news
The DWP has announced that new laws will be brought in in early 2018 to allow deductions to be made from joint accounts to recover child maintenance arrears.  Safeguards will be put in place to protect the other holders of the joint account. It is claimed the new laws will help recover an extra £390,000 in child maintenance. 

Mr Justice Baker has been appointed as the Senior Family Liaison Judge with immediate effect.

Sir David Bodey retired from the Family Division of the High Court on 15 October 2017.  Speaking at a ceremony to mark his retirement, he commented that as a result of legal aid cuts, more people had been forced to represent themselves at hearings before him, and they did not have the required knowledge or skills. He said: "I find it shaming that in this country, with its fine record of justice and fairness, that I should be presiding over such cases."

Finally, Lady Hale has succeeded Lord Neuberger as President of the Supreme Court.  Lord Mance is the new Deputy President.  The new justices are Lady Black of Derwent, Lord Lloyd-Jones and Lord Briggs of Westbourne. 

France does not recognise same-sex marriages converted from civil partnerships
There have been reports that at least a dozen same-sex couples have been caught in an impasse because France does not recognise their English marriages which were converted from civil partnerships under the Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014.
The issue appears to be that in France a legally-recognised marriage must have had a wedding ceremony (with witnesses) and the marriage certificate must reflect the date of the wedding.  A converted (and backdated) marriage is incompatible with French law and not recognised in France. The French authorities have suggested affected couples could divorce and re-marry. 

B. Case Law Update

Zimina v Zimin [2017] EWCA Civ 1429

H and W were married in Moscow in 1997. There were three children of the family. In August 2004 the family moved to London where they lived in rented accommodation until a property in Kensington ('the Kensington Property') was bought for the family by a limited company (Kopt Development Ltd) owned by a Bermudan Trust ('BMT').

BMT was established by H's father (Dr Z) with assets of approximately $40m. Dr Z and the D foundation were the two main beneficiaries with provision on Dr Z's death for H, his children and Mrs Z to become members of a discretionary class of beneficiaries. BMT also provided that in the event of H's death, W would receive an annuity of $20,000 pcm for life.
By the time the Kensington property was ready for occupation the marriage had failed. W and the children moved in without H.

On 1 November 2008 H issued divorce and financial proceedings in Russia. On 28 November a draft settlement provided for each party to retain the assets in their own name. In effect, W would retain $10m (equivalent to £5.1m) out of a total of $13.3m. W and the children were to live in the Kensington property with H to pay rent to Kopt Development Ltd. It was not expressed in the order that W could remain at the Kensington property until the children were no longer minors but, as set out below, there were various assurances provided regarding her occupation of the property. It took several months to finalise the settlement but this formed the basis of a consent order in Russia dated 21 August 2009.

Between 2008 and 2009 W was represented by English lawyers. She attempted and failed to bring proceedings in England. W's solicitors corresponded with H's solicitors and BMT's solicitors. In the course of correspondence H confirmed he would pay the rent on the Kensington property. BMT provided undertakings that they would not take any steps intentionally to prejudice W or the children's interests in BMT. They further confirmed there was no intention to sell the Kensington property in the foreseeable future and they were sympathetic to W's wish to remain living there. A further letter of comfort was provided by BMT in June 2009.

Shortly after proceedings were concluded in Russia, Dr Z reorganised the assets of BMT. The effect was that BMT's assets only comprised of the Kensington property and one other property. H's position as a potential beneficiary remained unchanged.

W consulted two sets of English solicitors in 2012. In 2013 W's solicitors sought further undertakings from BMT in relation to W's occupation of the Kensington Property. BMT provided a letter of comfort. W indicated that unless the trustees would assist in formalising her secure accommodation at that property she would consider issuing proceedings. No further communication was then sent for 14 months. 

In 2013 a decision was made to distribute approximately $37 million from family trusts to H (largely as a result of tax and reporting requirements that would arise upon H's relocation to the US which was prompted by the severe ill health of his daughter from his remarriage). The majority of the $37m was settled into five new trusts.

Further restructuring took place in January 2014 so that upon Dr Z's death H would become the sole discretionary beneficiary of BMT and a new BMT Legacy trust was established. In addition, Dr Z indicated a desire to make provision for W over and above the annuity from BMT. That wish was revoked after Dr Z became aware of W's Part III application.

In July 2014 W applied for permission to make an application under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA). The substantive application was issued on 5 August 2014.

The Stage I trial, whether or not it was appropriate to make an order pursuant to s16 MFPA 1984 took place in December 2015. The Stage II trial, what order should be made took place in 2016.

By the time of the Stage II trial BMT had offered W £1m to buy out her prospect of an annuity on H's death. W wished to accept that offer. W therefore had assets of £5.68m including the capitalised annuity and H had £32.9m of which £7.35m was held in trusts for the benefit of his current wife and children. W and H had both incurred costs of over £1m.

On 13 July 2016 Mrs Justice Roberts ordered H to pay to W a lump sum of £1.14m together with provision for the children of the marriage.

H appealed whether it was appropriate in all the circumstances of the case for the judge to have made a lump sum order.

The issues raised by the appeal were:

1) Issues of interpretation of Lord Collin's judgment in Agbaje at Stage I (whether it was appropriate to make an order). In particular:

a) Exactly what financial provision should be included in the term 'financial benefit' under s16(2)(d) MFPA 1984?

b) When and how should the adequacy of the provision be assessed; the date of the order and/or the date of the trial? In this context what impact (if any) should H's improved financial position have upon the outcome?

c) What impact should the delay, in part tactical, on W's part in issuing the proceedings have had on the outcome of the case?

2) If it was appropriate to proceed to Stage II, then the issue was whether it was appropriate to make an order at the conclusion of that stage.

Dealing with the issues King LJ (with whom Floyd LJ and Patten LJ agreed) held:

1) Issues of interpretation:

a) Financial benefit means all form of financial benefit received whatever the form. This included provision under the Russian order, provision by operation of law in relation to trusts established by Dr Z and provision by agreement. In relation to the arrangements for occupation of the Kensington property although these had never been formalised W had received assurances regarding this. In the event that the arrangements were insufficiently formal to find 'financial benefit' under section 16 MFPA 1984 W's continued occupation of the Kensington property was a highly relevant feature of the case to which the court was bound to attach considerable weight. 

b) "All the circumstances of the case" mean that the court will consider the adequacy of the provision as at the date of the foreign order and the court will also take into account the circumstances as they are at the date of trial. This may include an examination of the paying party's means as of the date of the hearing, subject to orders limiting disclosure if appropriate on the facts of the case.

Where financial provision agreed and implemented was i) adequate at the time the agreement was reached and ii) could be said to have satisfied the fairness test in Radmacher and the Edgar principles, then a court would scrutinise an application with care and hesitate before making an order under Part III where there had been no change in the Applicant's circumstances which would satisfy the Barder conditions, although there might be some exceptions to this, for example if it was necessary for the court to make an order to protect W and the children's right to occupy the Kensington property.

c) Even if on an objective assessment the Applicant had needs which were unmet the court could, in its discretion, conclude it was inappropriate to make an order where there had been substantial delay. Nevertheless, where the need was generated by virtue of the marriage the court may, if appropriate, make an order, notwithstanding the delay.

It was therefore ultimately within Robert J's discretion to find that it was appropriate to make an order and proceed to Stage II.

2) Whether it was appropriate to make an order at the conclusion of Stage II.
H had produced evidence that in 2009 W's needs, as assessed by Roberts J in 2016, would have required her to receive £4.22m as against the £5.1m she received. Those figures were not accepted without reservation by W but she did not dispute the general picture.

H's figures showed that the financial benefit received by W in 2009 more than met her long term needs (as assessed by Roberts J) and had she not commenced the Part III litigation and incurred costs of over £1m she would have had sufficient funds to meet her needs both now and after she left the Kensington property.

W's needs were generated as a result of her decision to embark upon the litigation which King LJ indicated was as a means to undermine two fundamental aspects of the original agreement, namely that W sought for the Kensington property to be transferred to her and, having agreed to the dismissal in Russia of spousal maintenance, she sought a substantial lump sum designed to produce an income significantly greater than that which would have been produced pursuant to the original Russian order.

Although Roberts J had restricted W's long term needs to reflect the delay in bringing the proceedings she had failed to stand back and factor that need into all the other circumstances of the case. A number of important features militated against the making of an order:

a) Provision was made by an agreement in Russia which was Radmacher fair and would have withstood the Edgar test. Public policy principles meant that there should, if at all possible, be finality in litigation and that agreement freely reached should be upheld, particularly given the finding Roberts J had made regarding W's delay.

b) There had been no change in W's circumstances whether of a Barder nature or otherwise. The application could properly be regarded as W seeking a 'second bite of the cherry'.

c) Roberts J had found W's delay had in part been tactical.

d) Following Vince v Wyatt "In order to sustain a case of need….a wife must show not only that the need exists but that it has been generated by her relationship with her husband".

e) It was hard, if not impossible for W to advance a case that she would suffer injustice or hardship if an order were not made. Whilst following Agbaje that finding would not inevitably lead to a dismissal of the application, the absence of hardship or injustice must be an important consideration when considering 'all the circumstances'.

f) The financial benefit provided by H in 2009 was adequate and remained adequate. Roberts J's order amounted to no more than a contribution by H to W's costs of the litigation.

The proper conclusion should have been that it was not appropriate to make an order under Part III and the order for a lump sum payment was set aside.

Wilmot v Maughan [2017] EWCA Civ 1668
H and W married in 1991. They separated in the late 1990s. Financial remedy proceedings were resolved by a consent order in June 2007. H's case was that he was resident in and worked out of Istanbul from 2011. In approximately 2011 W began enforcement proceedings which were still ongoing. The matter came before the court on a number of occasions including applications for freezing injunctions, a civil restraint order and appointment of a receiver. A number of orders were made between 2012-2015 permitting W to serve H by email. H appeared and was represented at some but not all of the hearings and he made a number of applications during the proceedings.

On 13 January 2016 Mostyn J dismissed H's deemed application to set aside all orders made in the proceedings since 2010.

H appealed on the basis that orders providing for email service were null and void for lack of jurisdiction under the 1965 Hague Convention on the Service of Judicial and Extrajudicial Documents. In the event that they were not void, he argued that they were defective and should be set aside because the potential impact of the 1965 convention was not addressed at the time they were made.

At appeal H argued:

1) Mostyn J was wrong in exercising his discretion under FPR r4.1(6) and or section 31F(6) of the Matrimonial and Family Proceedings Act 1984 not to set aside orders which included provision for service by email and that:

2) In relation to service:

a) Mostyn J should have determined the 1965 Convention was engaged and its provisions were mandatory and exclusive.

b) FPR r6.1(b) did not give the court discretion to cure a defect in service, or, if it did the discretion was unlawfully and unfairly exercised.

c) The court was wrong to conclude that the failure to comply with the 1965 Convention was a procedural error and was curable.

d) Mostyn J was wrong to find that there had been proper service under the 1965 Convention.

The issue of whether or not Mostyn J had power to revoke the orders was not addressed by the parties and for the purposes of the appeal it was assumed that he had been right to decide that he had power to vary or revoke procedural and substantive orders made previously in the proceedings.

Giving the lead judgment in the Court of Appeal, Moylan LJ, with whom Sales LJ and Black LJ agreed held:

1) Having regard to the lack of promptness and H's own extensive use of email, Mostyn J had been right to exercise his discretion to dismiss H's application. H had been represented or found to have received notice of the applications and hearings. There was nothing "out of the ordinary" which outweighed the interests of finality of litigation.  In Moylan LJ's view H's application as made to Mostyn J could well be described as having been "wholly without merit".

2) It was not therefore necessary to address the arguments advanced by H as to the effect of the FPR and the 1965 Convention. However, Moylan LJ considered some of the arguments because his conclusions on those fortified his conclusion Mostyn J had been right to dismiss H's application.
Where the 1965 Convention applied this should be viewed as the primary route to effect service. The Convention only applied if a document were to be transmitted abroad for service. It does not apply if the address of the person to be served is not known.

Following Cecil v Bayat, service under CPR r6.15 by an alternative method to  the 1965 Convention was "exceptional, to be permitted in special circumstances only". What was said in that case applied equally to the FPR.

FPR r6.1(b) gives the court power to order service out of the jurisdiction by an alternative method. FPR r6.43 and 6.45 were permissive and not mandatory. They did not provide that service must be effect by one of those methods and they clearly contemplated an order might be made in respect of service by an alternative method. An order is only required when service is sought to be effected by a method which is not permitted by the law of the country in which the document is to be served. If the form of service is permitted it is already authorised by the rules. The only restriction is that no court order may require a person to do something contrary to the law in the country where the document is to be served.

Whilst Chapter 4 of the FPR had no provision equivalent to CPR r6.37(5)(b)(i) it would be inconsistent with FPR r6.43(4) if the FPR were interpreted so as to preclude the court having the power to order service out of the jurisdiction by alternative methods. Such a restriction would contrast the position under the CPR and create a severe restriction in the court's powers without any suggested reason for the difference in approach. To interpret r6.1(b) as providing the court with power to permit alternative service was consistent with its meaning, with r6.43 and 6.45 and with the overriding objective. To conclude there was no such power in contrast to the CPR would have required very clear expression in the rules.

An applicant applying for alternative service was not required to show that alternative service was permitted under the relevant local law, if it was permitted, no application was required.

PD6A did not constrain the circumstances in which the court could make an order for alternative service by email.

Alireza v Radwan & Ors [2017] EWCA Civ 1545
W and H were both dual nationals of the UK and Saudi Arabia. They were married in 1999 and both came from wealthy families.

H worked in international banking and had an earning capacity in excess of £350,000 p.a. W did not work outside the home and it was agreed she had no earning capacity.

H was a beneficiary of the Verite Trust as were his mother and sister (the third and fourth Respondents). The Trust controlled '"Hosamco" (the Second Respondent), an offshore limited company incorporated by H's father in 1978. Hosamco provided a vehicle for a number of UK and internal property acquisitions. Following H's father's death in 1991 under Sharia law H was entitled to 58.33% of his estate. However, in accordance with his father's wishes he agreed to forego his entitlement and the family arranged its affairs on the basis of joint and collective ownership of all the family property (the "family arrangement") and used Hosamco as an acquisition vehicle.

Following the marriage the parties moved to a flat in South Kensington ("10 AHM"). The leasehold interest of the property was purchased in 1998 by Hosamco. 

In July 2000 the parties' son, Y, was born. He had significant learning disabilities and it was unclear to what extent he would be able to lead an independent life in adulthood. In 2002 the parties' second son, A, was born.

In 2004 the parties moved to New York to secure treatment for Y. They returned to live at 10 AHM in 2006 and in January 2008. Hosamco bought 10A within the same building for the use of the parties' domestic staff (including the nanny) and guests.

In 2008 the parties' separated and W moved out of 10 AHM and stayed with the children in her parents' London home. The family subsequently moved to Jeddah in 2009 where H and W reconciled. In 2011 the parties' son, T, was born. In 2012 W returned to the UK with the children and took up residence at 10 AHM.

In 2013 W issued divorce proceedings. The financial proceedings came before Roberts J for trial. W asserted H's assets held by him absolutely or beneficially were slightly under £17.4m. H said his assets amount to only a little over £1.75 million less his own liabilities and the sum W said she owed to her father in respect of legal costs. It was not disputed that W had no assets of her own.

Roberts J found that:

i) H had a 1/3 entitlement to all assets held in the family arrangement to which H would only be able to utilise his share.

ii) Hosamco held the beneficial and legal title of 10 AHM and 10A but the properties formed a nuptial settlement on the basis that the parties held a license to occupy the property. The court therefore had the power to vary this nuptial settlement.

iii) H's 1/3 interest in the family arrangement was worth between £12.42-£15.7m dependent upon the value of a beach villa owned in Jeddah. £4,381,630 was in liquid funds.

iv) H's personal liquid assets held outside the family arrangement were £1.64m giving him a total of £6,021,630 in liquid assets.

v) W's father did not make himself available to give evidence and the judge concluded that, whilst it was not permissible to put a clear bracket around his wealth, he was clearly extremely wealthy, W had an indefeasible entitlement (through Saudi law) to her inheritance and was likely to be a multi-millionaire in her own right following his death.

Roberts J ordered (save for iv-vi in accordance with H's revised offer):

i) W a lifetime occupational interest in 10 AHM which would be extinguished only following her re-marriage or her inheritance from her father.

ii) W a three year occupational interest in 10A.

iii) £2m capital in cash.

iv) An assurance to be provided by the directors of Hosamco that W might make an application to them for an extension of her licence to occupy 10A if her circumstances changed.

v) H to provide £25,000 for a replacement car

vi) H to pay £15,000 per year child maintenance and school fees for the children with £400,000 to be deposited by the husband with his solicitors as security.

W appealed on the basis that:

1) It was wrong to take account of her father's wealth and potential future inheritance thereby imposing a responsibility on him to provide financially for her and reducing H's obligation to support her and the children.

2) It was wrong not to require H to access his resources to pay a lump sum to meet her housing needs.

3) It was wrong to provide W with a time limited occupational interest rather than a lump sum to enable her to meet her housing needs.

Giving the leading judgement in the Court of Appeal King LJ (Lewison LJ and Gloster LJ agreed) held:

In the ordinary course of events uncertainty as to inheritance and the timing at which it will occur make it impossible to hold than an inheritance prospect is property which is "likely to be held in the foreseeable future". However, W's inheritance prospects did not have the inherent uncertainty found where a will was made in a country where there is no concept of forced heirship. A prospective inheritance which has certainty through laws of forced heirship is capable of being a "financial resource" which W is likely to "have in the foreseeable future".

There was no evidence that W's father would lose his wealth or give this away to charity. W had chosen not to call her father to give evidence. In those circumstances the court was entitled to conclude a portion of his estate would come to W.

Roberts J had made findings identifying instances of financial assistance that W received from her father. W had accepted that she had a loving father who would not see her go without. However, the judge had found this did not amount to a Thomas resource.

In King LJ's view the fact that W's father had helped W in the way he had, could not found a successful argument that he had accepted long term financial responsibility for W. The question was whether funds provided by him were a resource of W. W's father was not likely to advance capital immediately or in the foreseeable future. The issue was therefore whether it was right to make an order which was dependent upon use of a future inheritance to meet W's needs.

King LJ found the order did not meet W's needs. H had very substantial liquid funds within the family arrangement, a substantial earning capacity and £1.6m in funds outside the arrangement. Neither his mother or his sister would be prejudiced by the making of any reasonable lump sum order. The available pot was approximately £6m of liquid assets. H had a need for £1m for accommodation and W's need for capitalised maintenance and a house could therefore be met.

Further if a Mesher order were made on the facts of the case there was no reason why W's remarriage justified a break clause in the occupation of 10 AMH. The order was made on the basis of W needing a roof over her head until she inherited. Upon termination by remarriage W would receive nothing by way of capital.

W would undoubtedly be a very wealthy woman at some stage in the future and it was  desirable to respect the integrity of the family arrangement. However, these issues had to be weighed against i) W's personal autonomy, ii) W's contribution to the welfare of the family, iii) the strained inter-familial relationship and likely conflict in relation to implementation and iv) the dual purpose of the order proposed by W (that she would downsize and release capital upon which to live once the children were grown on the basis she would have already exhausted her capitalised maintenance of £2m by age 53).

The order made denied W any recognition in the form of a capital settlement to reflect her contribution to the marriage. Her prospective inheritance was a resource but not for 16+ years. It was hard to see how, when H had between £14 - £17m (albeit inherited) together with an earning capacity of £350,000 it was right to conclude that W, after 14 years of marriage, with no earning capacity and three children to care for should be denied a capital settlement sufficient to allow her to buy a property outright.

W's appeal was allowed with the matter to be remitted for reconsideration of the appropriate lump sum to be paid to W in addition to the agreed £2m. Absent a finding by Roberts J as to the appropriate housing fund necessary for W to rehouse herself and the children it would not be appropriate for the Court of Appeal to make an order.

MQ v SSWP and SQ (CS) [2017] UKUT 392 (AAC)
The appeal to the Upper Tribunal arose out of a First Tier Tribunal decision in 2011 which was ambiguous as to F's income and could be read as either £29k up to the changeover date (the date F became self-employed) and thereafter £61k or £29k up to the changeover date and thereafter £32k. Following the First Tier Tribunal decision, the CSA recalculated F's child support liability taking the view that his gross income was £61k after the changeover date. F sought to challenge the calculation and requested the First Tier Tribunal to reconsider the calculation. In July 2012 F was refused liberty to appeal. In July 2013 the CSA then issued a revised calculation on the basis that F's income was £32,000.

M applied to challenge the revised calculation. The CSA treated M's application to appeal as a complaint and it was only 2 ½ years later that the papers were referred to the CSA Appeals Unit.

The appeal was referred to the First Tier Tribunal which determined, in July 2016, that there had been a procedural irregularity in the July 2012 ruling (on the basis the Tribunal Judge who was part of the original Tribunal in 2011 had sat alone whereas at the original Tribunal in 2011 a financially qualified member had sat as well). The decision was set aside and M's appeal against the calculation in July 2013 allowed. However, the First Tier Tribunal Judge then went onto re-make the calculation of July 2013 in the same terms.

M appealed.

Nicholas Wikeley, Judge of the Upper Tribunal held:

There was an error of law in the ruling in July 2016. There was no procedural irregularity in the July 2012 ruling within the meaning of rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. The Tribunal Judge was entitled to deal with the application alone. There was therefore no trigger under rule 37(1)(b)and (2) to bring into question the interests of justice.

Having concluded there was an error of law in the 2016 decision there was a stark choice - either to leave the decision intact or to set it aside.

The usual fate of a decision involving an error of law was to set it aside. However, there were circumstances in which a decision would be left to stand, despite the error of law, if in the round it was essentially sound, both in fact and law.

Whilst the 2011 decision was not entirely free from ambiguity it was easy to see how it was understood as meaning F's income was to be taken as £29k up to the changeover date and £61k after that date. Looking in further detail at the statement of reasons provided, this took into account that F received £10k income PAYE and concluded £22k was being diverted with the result that in effect the CSA was to calculate the assessment based upon income of £32k. The unvaried income should be replaced by the varied income not added to it. The correct reading of the 2011 decision was F's income was £32k. The arguments for setting aside the decision heavily outweighed the argument to the contrary. On the basis that the 2016 decision reached the right decision it was not appropriate to set it aside.

M argued that she had been denied her appeal rights and the original Tribunal had failed to secure full financial disclosure from F before reaching its decision. However, M's appeal rights had been substantially delayed rather than completely exhausted. Whilst justice delayed could mean justice denied the tribunal has no power to award compensation for any breach of Article 6(1) ECHR. Any financial remedy for delay must be sought elsewhere.

M was out of time for lodging an appeal against the 2011 Tribunal decision. In principle, an application for permission to appeal to the Upper Tribunal could be admitted at any time after the expiry of the normal one month time limit, although the longer the delay the more difficult it may be to justify an extension of time. M's argument that the 2016 decision disposed of the proceedings for the purpose of the time limit was rejected. The time limit ran from the decision in 2011. 

Two further issues arose on the appeal:

1) The power of the Secretary of State to revise the decision of the Tribunal in 2013.

In revising the calculation, the CSA purported to rely on regulation 3A(1)(e) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, whilst this allows the decision-maker to revise an earlier decision at any time on the basis of official error this means departmental official error, not judicial error. The CSA's official error had been overtaken by the Tribunal's error in its liberty to apply ruling in 2012. In any event regulation 3A(1) does not apply to decisions taken on appeal by a First-tier Tribunal. The Secretary of State therefore had no power to revise a decision taken in accordance with directions given by the First-tier Tribunal and subsequently confirmed by the Tribunal on application by a party.

2) The correct procedure to be followed where there was an error is a liberty to apply application but the party disadvantaged did not appeal that ruling.

The Secretary of State might apply to the Tribunal for a set aside under rule 37 of the 2008 rules or apply to the Tribunal for permission to appeal to the Upper Tribunal under rule 38 or if the Secretary of State made an application for permission to appeal and the other parties were asked for their views then the First-tier Tribunal must set aside the decision and refer the matter for redetermination if all parties were agreed there was an error of law.

R v R & Anor [2017] EWCA Civ 1588 
W and H were divorced in Russia in 2013. W subsequently claimed financial provision from H in England under the Matrimonial Causes Act 1973, Part III. At an earlier stage H challenged the jurisdiction of the English court to make an interim maintenance order whilst he was subject to EU sanctions. His appeal was dismissed and the judgment was published in an anonymised form pursuant to a reporting restrictions order ("the Court of Appeal order").

At the final hearing before Moor J in July 2016 H applied to extend the reporting restrictions order. His application was dismissed. Moor J also discharged the reporting restriction order made by the Court of Appeal.

H appealed the discharge and also sought to appeal reporting of the fact that he had made an application for a reporting restrictions order relating to specified information ("the first specified information") and an order to restrain publication of other specific information ("the second specified information").

H argued that:

1) as a result of the second specified information, Article 2 of the ECHR was engaged.

2) the judge had erred in balancing Article 8 and Article 10 ECHR and his judgment was internally inconsistent. 

3) s97 Children Act prohibited publication of material likely to identity any child as being involved in proceedings under that Act.

Giving the lead judgment in the Court of Appeal (Sharp LJ and Hickinbottom LJ agreed) McFarlane LJ held:

1) There was no basis for an inference that Moor J found a right under Article 2 was established and no evidential basis to support such a conclusion.

2) Following Norman v Norman (which was handed down after Moor J's judgment) the principles and approach to anonymization which are applicable to the Court of Appeal in general apply in like manner to cases relation to financial provision. It will be very rare for the court to order anonymization. On appeal the principle of open justice and its importance will only be curtailed in exceptional circumstances.

Although there was a narrow focus in the short passage in Moor J's judgment, when proper account was taken of the pre-judgment submissions and allowing for aspects of forensic reality, his judgment properly balanced the issues in favour of publication with respect to the Court of Appeal proceedings and the overall outcome looked to cause minimum impairment to the principle of open justice.

H had not established that Moor J was required to strike the balance in a more restrictive manner by continuing the Court of Appeal's order. 

The order struck the balance where Moor J had determined it should be struck. It was not impossible to publish that which was permitted whilst at the same time ensuring no publication of matters which continued to be subject to an injunction.

3) Moor J made final orders in relation to the only outstanding financial issues under the Children Act in July 2016. No further hearings had taken place, none were planned and there were no outstanding applications awaiting determination by the court. The argument based on s.97 therefore failed as, following Clayton v Clayton the proceedings were not live.

Pickard v Constable [2017] EWHC 2475 (Ch)
Mrs Constable was adjudicated bankrupt on 2 October 2014. Her only significant remaining asset was her 50% share of the family home (owned jointly with Mr Constable). Mr Constable was in ill health as was Mrs Constable.

The Trustees in bankruptcy applied for an order for possession of the property. In July 2016 DJ Robinson ordered the property to be sold and for possession to be given by 1 October 2016. The Constables sought to challenge the date for giving possession. In September 2016 the District Judge stayed the matter to allow Mr Constable to provide evidence of his health and available alternative accommodation. Two statements were filed, one by Mr Constable and one by his carer.

In March 2017 the District Judge ordered the sale of the property be postponed until the death of, or, earlier permanent vacation of the property by Mr Constable with a parallel postponement of the order for possession. The Trustees appealed.

The Trustees argued the findings of the District Judge were conjecture or speculation and not open to him on the evidence and attacked the exercise of his discretion on the basis of the facts as found.

Giving judgment in the High Court, Warren J found that the correct test to apply was whether the circumstances were 'truly exceptional'. The District Judge had applied that test but the issue was whether he was entitled to reach that conclusion.

Warren J found that there were errors in the District Judge's judgment, for example the conclusion drawn about the impact of Mr Constable's health on his housing needs in the absence of proper expert evidence, in relation to the available rehousing options he had improperly put the burden of proof upon the Trustees to show that Mr Constable could manage the transition when that burden of proof fell to Mr Constable. Warren J was left with the impression that the District Judge had reached the conclusion on a 'feel' of the case not to dispossess Mr Constable, rather than deciding objectively what could properly be inferred and then asking himself whether what he could properly infer justified the conclusion.

Warren J noted that in particular the District Judge had given no reasons for drawing the conclusion that bed and breakfast accommodation (which might be offered by the local authority) would be entirely unsuitable unless the District Judge was under the impression that during the day Mr Constable would have to leave the accommodation which had not been suggested. The District Judge had further failed to properly consider the alternative of a shorter period of suspension.

Taken by themselves the errors would not justify overturning the exercise of the District Judge's discretion. However, as a whole, the evidence did not pass the threshold necessary to justify a postponement of sale the length of which the District Judge proposed.

The options available to Warren J were:

a. To order a sale and possession within a specified period.

b. To make a further order as at a but with express permission for Mr Constable to make an application for a further postponement. If such an order were made consideration had to be given to whether to restrict the permission to a change in circumstances for example if the local authority was unwilling or unable to provide suitable accommodation.

c. To remit the matter for a full rehearing.

Between option a and option b, option b was to be preferred. Restricting an application to a change of circumstances would be unsatisfactory as a judge exercising the power to vary the period of suspension would want to take into account all the relevant facts, including Mr Constable's health at the time of the application. Option b was to be preferred over option c as it appropriately placed the onus on Mr Constable to progress matters. Without restricting the application to a change of circumstances he would be able to adduce the same evidence and same arguments as if option c were adopted.

The orders for sale and possession were therefore postponed for 12 months with liberty for Mr Constable to apply to vary the date for possession and rely on such further evidence as he wishes.

Warren J warned Mr Constable that to be successful in such an application he would need to produce cogent evidence from medical experts about the potential effect of a move, cogent evidence about the non-availability of private sector accommodation, evidence of accommodation available from the local authority and full details of his and Mrs Constable's financial position.