Alpha Garden CourtFamily Law Week Email Subscription

Home > Judgments > 2017 archive

Crowther v Crowther [2017] EWCA Civ 2698

The Court of Appeal allows the Husband’s appeal following financial remedy proceedings and remits the case for a re-hearing. The questioning of the Husband by the judge went beyond assisting a litigant in person wife to present her case. The process at Final Hearing was therefore inadvertently unfair because the husband had no advance warning of the point then raised and so was unable to present his own case in order to meet it.

The parties had endured protracted financial remedy proceedings in relation to a single issue: the future of the Family Home. The Family Home, it was accepted, had been purchased entirely from an inheritance the wife received following the death of her parents. It was a mortgage free four-bedroomed property worth c.£200,000. W continued to live in the property. H lived with his parents who were in their seventies. W argued that H should receive no benefit from the capital contained within the property. H sought to receive c.£100,000, i.e. equal to 50% of the value of the Family Home. 

Despite the dispute being succinctly summarised as above by McFarlane LJ, he acknowledged that HHJ Tolson QC had faced numerous complicating factors at the final hearing, including that:

• Both parties were vulnerable from a mental health perspective. W had appeared in person throughout the proceedings. At earlier directions hearings her presentation had been of sufficient concern to raise questions of capacity. Time was then spent attempting to assess W's capacity and engage the Official Solicitor. Attempts were also made for W to receive legal aid. The appeal does not consider the detail of these avenues, but observes that the result was that W remained in the same position as at the beginning; namely not lacking capacity but continuing to act in person.

• W's position was heavily focussed upon her account of her own past, and the role of H in her past, and also the role of other sources. As a result her position was focussed upon the history and she described the impact of this upon her. McFarlane LJ explained that 'she is preoccupied by these matters and the unfairness of the events that she has encountered in her life to the extent that she really cannot see that the husband is entitled to have any claim against her now [3].' W argued primarily that H was not entitled to any claim over the Family Home because it represented her inheritance from her parents.

• H was also vulnerable as 'He presented to the court, as he does to all the world, as a physically disabled man…[4].' H was confined to a wheelchair and the court described him as 'very limited in his ability to look after himself or engage in anything approaching a normal life because of those limitations [4].' McFarlane LJ explained that 'In the course of the proceedings the husband was assessed, both by an orthopaedic surgeon and by a psychiatrist, and the resulting expert opinion was that there was really very little physical explanation for the husband's apparent disability and that there was a very significant element of functional overlay, causing him to present as… described [4].'

The latter stages of the proceedings were managed by HHJ Tolson QC, the DFJ at Oxford. At the contested final hearing, W appeared in person and H was represented by Mr Dance of counsel. After Mr Dance had undertaken examination-in-chief of H, HHJ Tolson QC indicated to W that he had a number of matters that he wished to raise of H, before W asked questions herself. HHJ Tolson QC then questioned H for 26 pages of transcript before inviting questioned from W. In the last 5 to 6 pages of transcript, the Judge asked H whether he could, as a matter of reality, actually live independently from his parents in the way he sought to on his own case. H's case was that he would move out of his parents' property and purchase a one-bedroom property nearby and live on his own there 'with little or no outside support [6].'

HHJ Tolson QC concluded in his judgment that:

• 'I cannot envisage that this solution would in fact meet [the husband's] needs. Before, however, we get to that point I express my doubts as to whether that is something which he will even undertake. It appears to me he has been an individual who for much of his life, perhaps all of it, has been dependent upon others and there is no significant body of evidence before me as to his ability to function independently…

… I do not think the solution proposed would meet [the husband's] needs. It is clear that no share of the property less than 50% would serve any useful function as far as [the husband] is concerned and of course to grant him a sale and the full 50% would not in any way reflect the contribution which [the wife] made from her family to the purchase of the property in the first place.'

• He additionally observed the mental struggle that W said she would experience if she were to move from that property.

• He ordered that H should not be awarded any of the capital.

Whilst Mr Dance raised specific points of appeal regarding the trial judge's analysis, and his approach to contribution, McFarlane LJ considered the most significant argument raised on H's behalf more broadly concerned the fairness of the process. In particular:

'The judge's questioning of the husband as to his ability to live independently introduced… for the very first time into the case a question mark over H's ability to live in that way [11].'

While s25(2)(e) MCA 1975 requires the court to consider any physical or mental disability of the parties, Mr Dance argued on H's behalf that the issue was introduced in an unfair and improper manner at the trial. Furthermore, it was argued that the Judge's questioning extended beyond the remit of s.31G(6) MFPA 1984. This was because it presented a case regarding H's ability to live independently which was not part of W's case before the court [11]. When directly asked by the appellate court, W confirmed that this was not part of her case before the court [13].

The Court of Appeal expressed professional sympathy for any judge in the not uncommon scenario where one party appears in person and the other has a strong legal team:

'… The requirement for the court to achieve a fair process by assisting the litigant in person almost inevitably draws the judge into the role of inquisitor, albeit on behalf of the litigant. It is a difficult line to tread, and if this appeal is successful I wish to be in no way critical of Judge Tolson, who on the day will, I am sure, simply have been doing his best to achieve a fair process for these parties [12].'

However, in spite of this, McFarlane LJ concluded that Mr Dance on H's behalf was right in asserting that the 'independent living point' was raised for the first time in the Judge's questions, which did unfortunately go beyond simply assisting the litigant in person to present her case, which was set on a different basis. The process was therefore inadvertently unfair because H had had no advance warning of the point being raised in order to take steps to present his own case in order to meet it [14]. The appeal was therefore allowed.

Whilst both parties had hoped for a redetermination, this was not possible on the information before the Appellate Court. The matter was therefore remitted to the family court for a rehearing.

Summary by Bethany Hardwick, barrister, St John's Chambers

Full judgment on BAILII: Crowther v. Crowther [2017] EWCA Civ 2698