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Brisset v Brissett [2009] EWCA Civ 679

Second appeal by husband against an order in ancillary relief proceedings which he claimed included an element of double counting. Appeal allowed.

The couple had married in 1964 and separated in 2004 aged 69 and 72. They had attempted to reach agreement on an equal share but were unable to translate that into figures with an acceptable lump sum. The district judge set that sum at £35,356 but the husband appealed to the circuit judge, on the grounds that the district judge had double counted an element allowed for the disparity between the couple’s incomes post-separation. The circuit judge refused that appeal but also communicated with the district judge orally and in writing about the double-counting.

In this appeal Wilson LJ, giving the lead judgment, had to consider first whether a second appeal was justified. He concluded that the circuit judge should not have communicated with the district judge about the substance of the appeal which in effect meant that the district judge “was allowed to participate in the dismissal of an appeal” from himself. He then stated that he should consider the appeal instead. He concluded that the district judge had been double-counting as 

"in achieving an equal division between the parties of the capital which they held at the time of the hearing, he was already taking account of the fact that, as a result of the husband’s higher income during the period, the wife had been required to expend greater capital than he had expended in order for her to have achieved a level of overall expenditure (at least) equal to his."

He then reduced the lump sum by £12,500.


Neutral Citation Number: [2009] EWCA Civ 679
Case No: B4/2009/0163
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/07/2009

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ANN BRISSET (Respondent)

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Miss Rachel Spicer (instructed by Andrew Jackson, Solicitors, Hull) appeared pro bono for the Appellant.
Miss Maria Scotland (instructed by the Bar Pro Bono Unit) appeared for the Respondent.

Hearing date: 30 June 2009
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Lord Justice Wilson:
1. A husband (as I will call him notwithstanding the pronouncement of a decree absolute of divorce) appeals against an order made in proceedings for ancillary relief by His Honour Judge Sleeman sitting as if in the Reigate County Court on 21 May 2008. The judge’s order was to dismiss the husband’s appeal against an order for ancillary relief made by District Judge Beck dated 10 January 2008. In both courts the husband and the wife (as I will call her) appeared in person. In our court they were represented by Miss Rachel Spicer and Miss Maria Scotland respectively, both of whom appeared pro bono.

2. We heard the appeal on 30 June 2009. Short though the hearing before us was, the performance of both counsel was outstanding. Indeed the hearing was short because counsel’s submissions, written and oral, were so clear, so succinct and so realistic. At the end we announced our decision, namely to allow the husband’s appeal; and we indicated that we would give our reasons in written judgments, of which Sedley LJ has invited me to deliver the first.

3. The husband is now aged 69 and the wife is now aged 72. Both are retired. The marriage was celebrated in 1964 and broke down in 2004.

4. “The parties’ own agreed approach to this case”, said the district judge accurately, “is that their respective capital and income should be divided, as far as possible, in equal shares, so as to ensure that they are, as near as may be, in the same position in retirement”. But they could not entirely agree upon the translation into figures of their agreement in principle that, of course on a clean break basis, the division between them should be equal. They agreed that the matrimonial home, of which the wife remained and still remains in occupation, should be sold and that the net proceeds of sale should be divided equally; and they agreed upon the proportions of a substantial pension sharing order in favour of the wife. They even agreed that equality demanded the payment by the husband to the wife of a balancing lump sum. The disagreement before the district judge was as to its size. In the event the district judge decided that the amount of the lump sum thus payable should be £35,356.

5. The basis of the husband’s unsuccessful appeal to the circuit judge was to the effect that the lump sum of £35,356 was too high. He made various complaints about the course which the hearing before the district judge had taken but in particular he complained that there had been an element of double-counting in the district judge’s calculations, which had allegedly vitiated his final figure of £35,356. In this court all the husband’s complaints other than in relation to double-counting have fallen away.

6. Before I address the complaint of double-counting I need to address what was, with respect to him, the inappropriate way in which the circuit judge prepared for, and conducted, the appeal.

7. Upon issue of the husband’s notice of appeal against the district judge’s order, the court file was placed before the circuit judge for directions. On 6 February 2008 he made some entirely appropriate directions but he also endorsed on the file:

“Please refer these papers to Judge Beck for his comments. Please refer back to me afterwards.”

The reference precipitated a letter from the district judge to the circuit judge dated 7 February 2008. In eleven paragraphs the district judge provided the circuit judge with background information about the hearing and took issue with many of the husband’s grounds of appeal: for example that the latter had been prejudiced by the wife’s service of a schedule upon him only on the morning of the second and final day of the hearing; and that the district judge had reached his decision and written his judgment during the four weeks between the first and second days of the hearing, prior to his allegedly reading all of it out at the end of the second day.

8. In the letter the district judge also wrote that he did not think that he had been guilty of double-counting but that he would check that point following the submission for his approval of the draft official transcript of his judgment. It is relevant to a tangential feature, linked to the double-counting, which I will explain in [14] below that I should set out parts of two paragraphs of the district judge’s letter, as follows:

“3. The parties’ own agreed approach to the case was that their capital and incomes should be divided equally, as far as possible …

4. The wife … was in any event seeking adjustments from complete equality because of various contributions … She wanted 52% of net proceeds of [the home] and other adjustments … and an equalisation payment so as to reflect the disparity in incomes between separation in 2004 and final hearing. The differences between the two sides were therefore difficult, despite the agreed starting point, and mathematical.”

9. We have the benefit of an official transcript not only of the circuit judge’s judgment on 21 May 2008 but of all the exchanges during that hearing. At its outset the circuit judge handed to each party a photocopy of the district judge’s letter to him dated 7 February 2008 and, perhaps because it was handwritten, he also read it out so that, in his words, both parties would have an opportunity to comment on it. Then the circuit judge added the following:

“I have spoken to Judge Beck today because I wanted to be sure that he did check his transcript and his figures and he assures me that he did check his figures when he approved the transcript and in his view there has been no double-counting, and so that I think is where you and he disagree, Mr Brisset, so I just thought you ought to know that.”

10. Thereupon the hearing proceeded and the circuit judge delivered a short judgment. He addressed and rejected all the husband’s grounds of appeal. In relation to the late service of the wife’s schedule, the circuit judge said:

“I agree that was unsatisfactory but District Judge Beck says that Mr Brisset was not disadvantaged by only seeing the wife’s statement on the day and I quote [from the letter dated 7 February 2008] ‘We went through it in detail and I made sure he had time to assemble her figures’.”

In relation to the allegation that the district judge had reached his decision prior to the second day of the hearing, the circuit judge, again referring to the letter dated 7 February 2008, said:

“The district judge says he had dictated a detailed note of the chronology and issues but he did not make his core findings and final calculations until day two.”

Later the circuit judge said:

“Mr Brisset’s main complaint is that there has been an element of double-counting by the district judge.”

After making one particular reference to the figures which he considered to demonstrate the invalidity of the complaint, the circuit judge added:

“Further I have spoken with the district judge today and he has confirmed to me that, when he received the transcript, he checked all his figures to ensure there had been no double-counting as alleged.”

11. It was wrong for the circuit judge to have communicated with the district judge, at first in writing and then orally, about the substance of the appeal. Having done so, he was clearly correct to have informed the parties so fully and so clearly about the content of the communications; but he should not have allowed them to occur in the first place. Indeed, as I have demonstrated, he used the district judge’s comments as reasons for the dismissal of the appeal. It is no exaggeration to state that District Judge Beck was allowed to participate in the dismissal of an appeal from District Judge Beck. No doubt in county courts in which circuit judges and district judges work in close proximity, develop close working relationships and perhaps have coffee and lunch together, they will develop the habit of discussing cases of mutual interest or perceived difficulty and may find themselves tempted to discuss even appeals from the latter to the former. But, just as we do here in relation to appeals from our colleagues in the High Court, the circuit judge must build a Chinese wall between himself and the district judge in relation to a pending appeal. I would recognise only one exception to that principle. Advocates are nowadays encouraged to invite a trial judge to amplify judgments in which they consider that he has failed to address issues or to explain his reasoning: Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531, per Arden LJ, at [41]. In a case in which a litigant has been appearing in person it would be permissible for an appellate judge who perceives a possible defect of that character to extend to the district judge the invitation to amplify which, had the litigant been represented, his advocate might have extended. Patently, however, the enquiries of the district judge made by the circuit judge in the present case do not fall within that exceptional category.

12. It follows that the conduct of the appeal on the part of the circuit judge was procedurally improper and that in this court we should therefore step into his shoes and conduct the husband’s appeal from the district judge. Irrespective, however, of the procedural impropriety, I would have suggested, for reasons which I will now explain, that the circuit judge was wrong in principle to have rejected the husband’s complaint about double-counting and that the husband’s appeal to this court should be allowed.

13. The issue in relation to double-counting arises out of the wife’s request to the district judge for (in the terms of his letter dated 7 February 2008) “an equalisation payment so as to reflect the disparity in incomes between separation in 2004 and final hearing”. It is entirely clear from the letter, quoted at [8] above, that such was an adjustment which the wife sought and which the husband resisted.

14. At this preliminary stage of the discussion of double-counting I should mention a tangential feature. Sometimes trial judges whose decisions are subject to a pending appeal are so disturbed at what they consider, for example by reference to the notice of appeal, to be the proposed misrepresentations of the appellant that they are motivated to write to the appellate court in order to correct them. I have personal experience in this regard. When a judge of the Family Division, I was once – as it happens, it was in relation to the father’s appeal to this court against directions of mine in Re T cited above – so angry at what I regarded as the forensic misconduct of his lawyers in relation to the appeal in the light of matters which had occurred before me, that I drafted a letter for me to send to this court. Fortunately I showed the draft to Dame Elizabeth Butler-Sloss P and I accepted her unequivocal advice not to send it. In the present case, having studied the judgment, [2009] EWCA Civ 314, by which on 24 February 2009 I granted permission to the husband to appeal to this court, District Judge Beck wrote a letter dated 4 June 2009 to the husband’s solicitors in which he purported to set out the “correct position” and asked that it should be made clear to this court. The gist of the letter was that the agreement between the parties, which they asked him to translate into figures, “was not only for the equal division of capital and income as at the date of hearing but also for the equal division of capital and income from the date of separation”. It was unwise of the district judge to send the letter at all. But it was particularly unfortunate in that the lapse of time has, so I am convinced, played tricks upon his memory: for it is plain both from his judgment itself and, as I have already suggested, from paragraphs 3 and 4 of his letter to the circuit judge dated 7 February 2008, quoted at [8] above, that the request for an equalisation payment so as to reflect the disparity of income during the four years following the separation [“the period”] emanated from the wife and was disputed in principle by the husband.

15. Neither party has challenged the initial conclusion of the district judge that a strictly equal division of the capital which they held at the time of the hearing was to be achieved by the husband’s payment to the wife of a balancing lump sum of £80,356 or, in that he had made a payment of £60,000 on account between the first and second days of it, of £20,356. How, then, did the district judge reach a final figure of £35,356? He did so by:

(a) ultimately acceding to the wife’s contention that the husband had had a higher income than her own during the period, with the result that she had had to expend greater capital than him during the period; in this respect the district judge added £25,000; and
(b) ultimately acceding to the husband’s cross-contention that, if disparity of income during the period was to be taken into account, so too should disparity of expenditure and that the wife’s expenditure during the period had exceeded his own; in this respect the district judge deducted £10,000.

Thus the net effect of the district judge’s allowance for the disparity of income was to increase the amount of the lump sum by £15,000.

16. The district judge explained his approach to the issue in relation to disparity as follows:

“51. The wife says she should be compensated for the fact that she has lost out on a material amount of income and has been forced to top up her income, by drawing down on her capital. I think she is right about this.

76. … I think the wife’s complaint that she has lost out on income since separation is reasonably justified. I think it is perfectly clear that were it not for the money that she had in the Abbey she would have been pressing [for] maintenance pending suit.

77. … it is correct to say that her share of the residual capital has been depleted by the fact that she had had to draw on her capital, in order to maintain her standard of living. Doing the best I can and recognizing there was a material difference between the two sides’ income, I think that the wife is entitled to a ‘compensatory’ item here, of £25,000 …”

17. The husband argued before the circuit judge, and Miss Spicer argued before us, that, in adding a net figure of £15,000 to the lump sum by reference to disparity of income during the period, the district judge was guilty of double-counting. In relation to the argument Miss Scotland expressed neutrality, which must mean that she considered herself unable to mount an active defence of the district judge’s approach. I am convinced that Miss Spicer’s argument is correct. But, having read all the exchanges which took place before the circuit judge, I wish to express my sympathy for him in this respect: for the husband did not properly explain the basis of his argument to him.

18. The district judge was guilty of double-counting because, in achieving an equal division between the parties of the capital which they held at the time of the hearing, he was already taking account of the fact that, as a result of the husband’s higher income during the period, the wife had been required to expend greater capital than he had expended in order for her to have achieved a level of overall expenditure (at least) equal to his. Had the wife not expended such greater capital, the amount of her capital at the time  of the hearing would have been higher and the requisite balancing payment by the husband would have been reduced, perhaps even to nil; or, indeed, the balancing payment might have fallen to be made by her to him. If I may put the same point in converse terms, the result of the wife’s greater expenditure of capital during the period was to reduce the amount of her capital in comparison with that of the husband at the time of the hearing and thus to enlarge the size of the balancing payment to be made by him to her.

19. Application of the sharing principle, as explained by this court in Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246, at [64] to [67], initially requires identification, and generally also valuation, of the parties’ assets as at the time of the substantive hearing. Consideration may well then have to be given to the source of the assets – often of course they represent accumulated income – and to the time when they were acquired, whether prior to the marriage, during the marriage or following the separation. Indeed consideration may also have to be given to assets which one or other party once held but no longer holds at the time of the hearing, including in respect of their source, of the circumstances in which they ceased to be held and of the time when they ceased to be held. An overlapping enquiry is occasionally required when, say, a wife alleges that the husband has wantonly dissipated his resources (which may include income as well as capital) and that they should therefore notionally be reattributed to him: see Vaughan v Vaughan [2007] EWCA Civ 1085, [2008] 1 FLR 1108, at [14]. Generally speaking, however, application of the sharing principle does not require the court to conduct the exercise (in which, as District Judge Beck frankly admitted in his judgment, both the parties and also to some extent he himself had, on the first day of the hearing, become “completely bogged down”) of charting the disparity of income during the years following separation. Generally speaking, the essential exercise of sharing the currently held assets, whether in equal or in unequal proportions, already neatly caters for such disparity.

20. Thus the district judge’s calculation of the amount of the balancing lump sum payable by the husband to the wife included an error of double-counting, to the prejudice of the husband, in the net sum of £15,000.

21. At the hearing Miss Scotland valiantly strove to avoid defeat by an application for permission to adduce fresh evidence arising following the hearing before the circuit judge, which was said to show that, contrary to their agreed aspiration as presented to the district judge, the wife’s current income has turned out to be somewhat lower than that of the husband. Such evidence did not come near to justifying the re-opening of the balance of the district judge’s determination in accordance with the principles set out in Myerson v Myerson [2009] EWCA Civ 282, [2009] 2 FLR 147. But there was a second string to Miss Scotland’s bow, which secured a little solace for the wife. The parties have recently achieved a belated exchange of contracts for the sale of the matrimonial home. In the light of her continued residence there the wife undertook to the district judge to assume sole responsibility for payment of outgoings referable to it, which would no doubt include the cost of works of ordinary maintenance. The wife’s proposed fresh evidence, however, also included material which appeared to suggest that, in order to achieve the sale, she had recently made payments of almost £7000 for works extending beyond ordinary maintenance, of which (argued Miss Scotland) the husband, as the joint owner entitled to one half of the net proceeds, should therefore bear one half. I pointed out to Miss Scotland that the normal route to recompense for such expenditure would be through the liberty granted by the district judge to apply to himself under s. 24A(2) of the Matrimonial Causes Act 1973 for further directions consequential upon his order for sale of the home. But, pressed by my Lord, Sedley LJ, to seek to obviate further litigation, the husband, with the advantage of Miss Spicer’s advice, offered to pay £2,500 to the wife in full and final settlement of all claims of that character; and the wife accepted the offer.

22. Thus it was that we arrived at the conclusion that the requisite net adjustment of the district judge’s lump sum order against the husband was a reduction of £12,500 to £22,856; and we so ordered.

Lord Justice Jacob:
23. I agree with both judgments.

24. I would add this. There can be few judges who view with equanimity being reversed on appeal. But once she or he has given judgment (subject to being asked for clarification or to deal with a point which ought to have been dealt with) a judge who has given judgment has finished with the case. She or he may take the private view, if reversed, “Lord forgive them for they know not what they do”. But what a judge cannot do is get involved in the appeal process itself. That is what happened here, albeit with the best of intentions. It was a mistake which vitiated the appeal process itself.

Lord Justice Sedley:
25. I agree with the judgment of Lord Justice Wilson, not least in relation to the high standard of representation and advocacy before this court. I take the liberty of adding to it because it touches on important questions of judicial independence and impartiality.

26. It is (though it was not always) a feature of our legal system that a judgment must speak for itself. This is one of the reasons why importance is attached to the giving of explicit reasons for judicial decisions. A corollary of the requirement is that appellate or reviewing courts will treat the judge’s reasons as limited to those given in support of his or her judgment. Lord Justice Wilson has described the limited instances in which a judgment, once delivered, can be formally clarified or even amplified. But, however it is composed, a judgment is the complete public record of a court’s reasons for its decision.

27. It follows that an appellate or reviewing court cannot properly take into account matters which have been separately advanced by the judge by way of justification of his or her decision. Although Judge Sleeman acted with complete propriety in disclosing what had passed between him and District Judge Beck, both of them, in my respectful judgment, had acted unjudicially in discussing the case in the various ways described by Lord Justice Wilson. The self-contradiction which resulted is not what rendered the exchanges objectionable, but it illustrates one of the many reasons why such exchanges are off limits.

28. It undoubtedly requires self-restraint, as Lord Justice Wilson has vividly described from his own experience, to let an appeal proceed or be opposed on a basis which, as the judge concerned, one knows to be false. But the judge below has, for better or for worse, no right to be heard. He or she must leave it to the advocates to ensure that, so far as the terms of his or her judgment or the formal court documents do not themselves keep the record straight, the superior court is not misled. The professional duty of candour resting on counsel and solicitors is correspondingly high. (Because with litigants in person such a duty is more problematical, superior courts tend to be even more cautious about criticising lower tribunals at the instance of unrepresented parties.)

29. The transactions between district and circuit judge in the present case made it incumbent on this court to take a fresh look at the district judge’s reasoning, which might otherwise not have warranted a second appeal. The outcome was clear – so clear as to underscore how such transactions can cloud the judicial function. The collegiality which is an essential part of judicial life cannot be allowed to intrude into the forensic space which necessarily separates lower tribunals from those with oversight of their decisions.