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Finch v Baker [2021] EWCA Civ 72

This was a 2nd appeal in a financial provision case. Moylan LJ gave the only substantive judgment. The appeal was dismissed.


The DJ's decision was given in January 2019. Leave to appeal on limited grounds was granted by Roberts J. The appeal was heard in September 2019 by HHJ Brownlow, who allowed the appeal and reduced the husband's lump sum and pension share. However, with leave of King LJ she further appealed to the Court of Appeal. The Court of Appeal dismissed her 2nd appeal. The principal issue of interest is the approach to pension valuation evidence.

The report on pensions had been obtained in March 2018 based on gross benefits calculated in October 2017. The husband was about 67 and the wife 55 when the case came before the DJ. The principal pension asset was the wife's BBC pension. When Roberts J considered the permission to appeal leading counsel for the wife was asked whether he was applying to adduce fresh evidence and he said no. The judge at the first appeal, asked for confirmation that he was to consider the appeal on the basis of the information before the DJ and this was agreed. When he delivered his draft judgment to the parties' requests for clarification were put in on behalf of the wife and by the wife herself, which the judge characterised as an impermissible attempt to reargue the appeal. In those arguments it was suggested that he should have updated information. He declined to change his judgment. It was too late to be raising arguments about the adequacy of the agreed report.

When the matter came before the Court of Appeal there was a late request (although not a formal application) for permission to file further evidence about the pension value and tax consequences. The court agreed to consider it "de bene esse". It transpired that it was not a report by a pensions expert and indeed many of the calculations about the tax effects of the order were done by the wife herself and had not been raised in the courts below. The Court declined to consider the material both because it was too late to seek to adduce further evidence (given the opportunities to do before the lower court) and  because this was not expert evidence.

The court noted that a solution proposed on behalf of the wife that the court should have decided how much should be paid to the husband is not permitted by the statute. The court must fix the percentage in the order.

Moylan LJ also noted that the effect of s34 Welfare and Reform Pensions Act 1999 is to delay the implementation date of the order and it may be delayed further if there is any delay in the granting of decree absolute (s24B(2) MCA 1973 and by any appeal brought within time Regn 9 of The Divorce etc. (Pensions) Regulations 2000 (SI 2000/1123). Therefore there is always the possibility that when implemented the order will have a different effect. He noted that this was

"another example of the court's powers under the MCA 1973 being exercised in a broad, discretionary manner and not necessarily with the expectation of achieving mathematical precision."

In dismissing the wife's appeal Moylan LJ also observed that the DJ decided that the husband's conduct was not such that it would be inequitable to disregard it. The Court therefore rejected attempts to bring it back into the assessment as a "negative contribution".. Moylan LJ also rejected the suggestion that there should have been greater consideration of the parties' needs saying that the judge was able to assess the needs without extensive "banal cross-examination".

Case Summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII