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Miller Smith v Miller Smith (No 2) [2009] EWHC 3623 (Fam)

Application by wife for delay in pronouncing decree absolute pending conclusion of the ancillary relief proceedings. Application refused.

The background to the case can be found in a previous Court of Appeal judgment available on Family Law Week here. In this application, the wife was seeking the delay, broadly, on the grounds that, on the husband's suggestion, she had cancelled her BUPA insurance and not paid into a private pension on the assurances that she could benefit from the husband's company schemes and that she would suffer prejudice and detriment if the ancillary relief proceedings progressed after the decree absolute had been made. In a previous hearing, the matter was adjourned to allow the wife's advisers to conduct further enquiries but the husband also reiterated undertakings concerning the health insurance and pensions.

In this application, counsel for the wife contended that that the court had a discretionary power to delay the making of a decree absolute and that the facts of this case justified using such a power, since the wife faced a significant loss of pensions rights, in order to permit a full investigation into the husband's undertakings. Baker J reviews the MCA and case law, including Dart v Dart, and finds that the court does have a discretionary power under its inherent jurisdiction to delay or stay an application to make a decree absolute but that can only be exercised if special or exceptional circumstances are established. He then dismisses the application as no advantage could be demonstrated from delaying the application. There is also discussion concerning costs given that the proceedings derived from a TOLATA application under the CPR; it was determined that costs should follow the event.


[2009] EWHC 3623 (Fam) No. F008002301

Royal Courts of Justice
Wednesday,  7th  December 2009


B E T W E E N :

MILLER-SMITH (Applicant)

-  and  -

MILLER-SMITH (Respondent)


Transcribed by BEVERLEY F. NUNNERY & CO
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MR. J. WILSON (instructed by Mishcon de Reya)  appeared on behalf of the Applicant.

MR. J. TURNER QC (instructed by Stowe Family Law) appeared on behalf of the Respondent.

(As approved by the Judge)
The judge gives for the judgment to be reported as transcribed.


1. This is an application by the wife in these proceedings for an order that any application for the decree nisi made on 9th October 2009 to be made absolute should be adjourned until the determination of the wife's application dated 19th November 2009 for an order that the decree nisi will not be made absolute until the conclusion of the ancillary relief issues as between the parties.

2. The adjournment application  came initially before Sir Andrew Kirkwood, sitting as a Deputy Judge of the Family Division, on 25th November 2009.  The learned Deputy Judge adjourned the application to 2nd December when it came before me, sitting as the Applications Judge in the Division.  The matter effectively proceeded on that day as a hearing of the substantive application by the wife for an order that the decree nisi not be made absolute until the conclusion of the ancillary relief proceedings.  That application is opposed by the husband on the grounds that it is misconceived in terms of jurisdiction and without substantive merit.

3. I am grateful to both counsel for their helpful position statements, which I have read, together with bundles provided by both sides, including an affidavit from the wife in support of her application, and a number of authorities supplied by each counsel.  I heard all submissions from both counsel on 2nd December over about two-and-a-half hours and reserved judgment until today.

4. The husband is aged 70 and the wife aged 44.  This is the husband's second marriage.  He has three adult children from his first marriage and five grandchildren.  The wife was not previously married.  The parties met when both worked at ICI.  The husband was the Chairman of that company until December 2001.  He also became Chairman of Scottish Power Plc in April 2000.  The wife, a qualified lawyer, was the company secretary to ICI until made redundant in October 2003.  The parties married on 26th June 2004, having cohabited for about six months beforehand.  There are no children of this marriage.

5. It is the wife's case that the husband took control over her financial matters during the marriage.  In particular, she asserts that he suggested that she should cancel her existing BUPA private medical assurance as she would, as his wife, be covered under the ICI BUPA scheme for directors, which extended to ex-directors such as the husband.  In addition, she states that he suggested that she did not need to worry about putting a private pension in place because in the event of his death she would receive as his widow a pension from the company pension scheme, of which he was a member, in the sum of £120,000 per year, index linked.

6. The parties separated in January 2008.  The total length of the marriage was therefore three-and-a-half years.  On 16th May 2008 the husband petitioned for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973.  The wife defended the suit, asserting that she had not behaved in a way that the husband could not reasonably be expected to live with her and that, in any event, the marriage had not irretrievably broken down.  Her answer did not include a cross-petition for divorce.  Prior to the hearing of the defended divorce the husband invited the wife to agree to a sale of the former matrimonial home -- a substantial property in London -- on the basis that a sale was inevitable, given the breakdown of the marriage, the size of the property and the condition of the property market at that time.  The wife refused to agree to the sale.  In view of the fact that she was defending the divorce suit, and that an order for sale in the ancillary relief proceedings under the Matrimonial Causes Act could only be made following a final order, the husband issued an application under the Trusts of Land and Appointments of Trustees Act 1996 ("TOLATA") seeking an order for sale under that legislation.  The wife opposed the application.  The contested final hearing took place before Mr. Recorder Sapsford QC on 5th June 2009.  By an order dated 31st July 2009, at the end of that hearing, a sale of the property was ordered, with a direction for vacant possession to be given by the wife upon completion.  In October 2009 the divorce suit was heard as a defended cause.  After a hearing lasting five days the court found that the marriage had irretrievably broken down and that the husband could not reasonably be expected to live with the wife.  Thus a decree nisi was granted to the husband on 9th October 2009.  Orders for costs were make against the wife in both the TOLATA proceedings and the defended divorce.

7. The wife appealed the Recorder's decision on the TOLATA application.  Judgment on that appeal was handed down by the Court of Appeal, coincidentally, on the morning of 2nd December, the date of the hearing before me. The appeal against the Recorder's decision was dismissed.  Giving the lead judgment in the Court of Appeal, Wilson LJ stated, inter alia, at paragraph 18, that

"confronted with an application under TOLATA between separated spouses, the court should embark upon the discretionary exercise by asking itself whether the issue raised by the application could reasonably be left to be resolved within an application for ancillary relief following divorce."  

In this case the Court of Appeal concluded that

"the time frame until possible, indeed perhaps probable, determination of the parties' claim for ancillary relief did not represent a delay tolerable in all the circumstances." (paragraph 19) 

Foremost among the factors that led the Court of Appeal to reach that conclusion were: (a) the fact that the wife had defended the divorce; and (b) the very high mortgage instalments on the matrimonial home.

8. Thus the background to this application before me to postpone the making absolute of the decree nisi on the husband's petition is a history of litigation between the parties which has already been characterised by a considerable element of delay, although it is only fair to repeat the observation of Wilson LJ in the Court of Appeal that

"the driver behind the wife's defence of the suit, however unfortunate, may have been less a cynical attempt to obstruct the husband than the beating of a wounded heart."

9. Meanwhile, on 20th October the wife issued her application for ancillary relief.  The first appointment of that application has been fixed for April 2010.  No detailed information about the parties' financial assets  has been put before me, but an outline of the position is as follows.  The principal asset of the parties is the former matrimonial home, the subject of the TOLATA proceedings, which has a value of somewhere between £10 million and £14 million.  There is an enormous mortgage of £7 million securing the property, with annual repayments exceeding £200,000.  In total, the parties' non-pension assets are worth about £7 million, including the beneficial interest in the matrimonial home, of which £4 million is in the husband's name and £3 million in the wife's name. 

10. When one turns to pensions there is a much wider disparity.  The wife has a modest pension fund of about £75,000, whereas the husband, approaching the end of his successful business career, has a fund in excess of £3.7 million under a final salary scheme.  It is the wife's case that she has always been told by the husband that, in the fullness of time she would have the benefit of the widow's pension attached to his company's pension scheme, which will be worth about £120,000 per annum gross.  On that basis she says that she did not keep up her own pension provision.  In addition, she was also told that she should be able to rely upon the husband's private health care insurance and so did not keep up her own.  It is asserted that, other things being equal, if she ceases to be the husband's spouse, she will lose the potential rights to pension provision and health care insurance to which she is currently entitled.  It is said that this would constitute a very significant prejudice to her. 

11. On 22nd October 2009 the wife's solicitors wrote to the husband's solicitors stating:

"Our client requests that your client defers seeking the decree absolute until financial claims, including housing, pension and income, have been determined.  Please confirm this is agreed."

On 11th November 2009 the husband's solicitors replied:

"Mr. Miller-Smith has contacted the pension trustees in respect of his pension with the company and they have confirmed to him that upon pronouncement of the decree absolute your client will no longer benefit from his pension upon his death.  However, Mr. Miller-Smith is able to nominate your client as a dependent, even if she is no longer married to him and as for as long as she remains so nominated she will benefit from his pension in the event of his death.  Mr. Miller-Smith does not accept that the risk of the loss of pension rights will be a justification for delay of decree absolute in the present case, given the totality of the financial resources available and all the other circumstances of the case, but he is nevertheless prepared to file with the court a formal undertaking to the effect that he will take all necessary steps prior to decree absolute to nominate your client to receive the benefit under his company pension in the event that he should die before an enforceable order resolving your client's claims for financial and ancillary relief has been made in the divorce proceedings between the two of them, unless he has prior to his death been released by the court from his undertaking in respect of this nomination."

In response to a request for clarification by the wife's solicitors, the husband's solicitors wrote again on 17th November, stating:

"Our client was advised that he can elect for your client as a dependent to receive the benefit from his pension identical to that which she would receive as his widow and he is prepared to do so pending the outcome of the ancillary relief proceedings."

In a further exchange of correspondence the husband's solicitors indicated that in those circumstances their client was not prepared to delay the decree absolute. 

12. On 19th November the wife's solicitors therefore issued an application for an order that any application for the decree nisi to be made absolute should be adjourned pending determination of the wife's ancillary relief claims,  returnable at the first appointment on 15th April 2010.  The issue of that application did not, of course, operate as any form of stay on the decree absolute and, the husband's solicitors having refused to give any form of interim undertaking to refrain from making the decree absolute, the wife's solicitors applied on short notice to Sir Andrew Kirkwood for an order that any application for the decree nisi to be made absolute should be adjourned until the first appointment.  That application was supported by an affidavit sworn by the wife on 19th November 2009, which concludes:

"Charles is aged 70 and I  believe that this is a relevant factor to take into consideration in my application.  While I married Charles realising the risks involved in marrying someone 25 years older than me, these concerns were assuaged and delayed by Charles' manifold assurances, both prior to and during the marriage, that I would be financially taken care of in the event of his death and my personal trust in his financial wisdom and expertise.  I believe there are special circumstances in this case which make it just that the decree absolute be deferred."

13. Before the hearing before Sir Andrew Kirkwood letters were produced from the company pensions team stating that (a) if the member is not married they can nominate an individual to receive a dependent pension equivalent to the spouse pension provided to a legal spouse (letter 17th November 2009); (b) it is possible to nominate a dependent to receive a percentage of the total spouse pension (letter 24th November 2009); and (c) the current spouse pension payable from the pension fund if the husband predeceases the wife currently amounts to £120,723 per annum, ibid.

14. At the hearing before Sir Andrew Kirkwood there was some argument on the question whether further information about the details of the pension scheme and the health insurance scheme should be obtained.  The learned deputy judge therefore adjourned the application for seven days to allow the wife's solicitors to have an opportunity to conduct enquiries.  He also ordered the husband to pay the costs of the application.  In subsequent correspondence the husband reiterated his undertaking to nominate the wife as his dependent under the company pension scheme until the resolution of the ancillary relief proceedings.  As for health insurance, it has emerged that the husband's cover under his existing company scheme will terminate on 31st December 2009.  Consequently, the husband through his solicitors indicated that he has taken out two new policies: one for his benefit and the other for the wife's benefit, providing "similar cover to that previously received".  Furthermore, letters of authority were signed by the husband authorising the pensions team and BUPA to release information concerning the respective schemes to the wife and her solicitors.  These authorities have been received by the respective companies.  After a delay of a few days (attributable to a misunderstanding between the solicitors), the wife's solicitors wrote on 1st December to the company pensions team seeking further information, including a copy of the trust deed and scheme rules.  No reply had been received to that letter by the time of the hearing before me.

The Position of the Parties
15. Mr. Wilson's position, set out in his written document and developed in clear and careful oral submissions, was as follows.  The wife's primary position was that the matter should be stood out for a further seven days to enable her solicitors to complete their enquiries.  In the event, however, I had an opportunity to hear and consider full argument on the merits of the wife's main application, namely to make an order preventing the husband from seeking a decree absolute pending the resolution of the financial proceedings.  I was able to allow the parties ample time to develop their arguments -- more time than had been indicated in the wife's application as to the probable length of the hearing of her main application.  I am satisfied that all parties were able to deploy all arguments on these matters in the hearing before me.  On that main application Mr. Wilson contended that the court has a discretionary power under its inherent jurisdiction to delay the making of a decree absolute.  He relied on the decisions of the Court of Appeal in England v England (1980) 10 Family Law 86 and Dart v Dart (unreported, 27th October 1995).  Mr. Wilson contended that, on the facts of this case, the court should exercise its discretion so as to make such an order.  He submitted that the wife does face very significant prejudice and detriment if a decree nisi is made absolute.  She would, he added, face a very significant loss of pension unless the husband's undertakings are copper-bottomed, which were still being investigated.  He argued that it was vital that this point was clarified properly.  Mr. Wilson accepted that the jurisdiction can only be exercised in special or exceptional circumstances.  He asserted that his client was not seeking to be obstructive.  He accepted that, in the event of the husband's death, the wife would have a claim under the inheritance provisions of the Family and Dependents Act 1975, but that prior to that such a claim would involve very considerable expense and difficulty for her and would be likely to bring her into conflict with her stepchildren which, unhappily, is something that has already occurred during the marriage.

16. In reply Mr. Turner made three broad points. First, he submitted that there is no power under the inherent jurisdiction to make an order delaying a decree absolute.  Secondly, in the alternative, he argued that if there is such a jurisdiction it should be exercised only sparingly.  Thirdly, he submitted that on the facts of this case an order was unnecessary.  The husband had offered clear undertakings about the pension and health insurance.  Furthermore, any losses that might accrue to the wife in the event of the husband dying, leaving her without a pension or health cover, could be adequately met out of his other substantial assets.

The Law
17. The Matrimonial Causes Act 1973, as amended, contains various provisions about proceedings after the decree nisi -- in particular, sections 8, 9, 10 and 10A.  Thus, for example, where a petitioner has failed to apply for a decree absolute, section 9(1) provides that any time after the expiration of three months from the earliest date on which the petitioner could have made such an application, the party against whom the decree nisi was granted may make an application to the court and on that application the court has a wide range of powers as defined in section 9(1).  More pertinent to the present case is the power under section 10(2) to (4).  These provisions give a statutory right to a respondent to a petition under section 1(2)(d) or (e), described by Mr. Turner as the "no fault" grounds, in contrast to the "fault" grounds under section 1(2)(a) to (c), including the ground of unreasonable behaviour relied on against the wife in this case, to apply for consideration of his or her financial position.  On such an application the court (1) shall not make the decree absolute unless it is satisfied (a) that the petitioner should not be required to make any financial provision for the respondent, or (b) that the financial provision made by the petitioner for the respondent is reasonable and fair and the best that can be made in the circumstances (section 10(3)), but (2) may, if it thinks it fit, make the decree absolute, notwithstanding the requirements of section 10(3) if (a) it appears that there are circumstances making it desirable that the decree should be made absolute without delay, and (b) the court has obtained a satisfactory undertaking from the petitioner that he will make any such financial provision for the respondent as the court may approve. [emphasis added]

18. In addition, by section 10A (inserted into the Matrimonial Causes Act 1973 by the Divorce (Religious Marriages) Act 2003), in cases involving marriages conducted according to certain defined religious usages, the court has a statutory discretion to order that a decree nisi should not be made absolute until the parties have made a declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages.

19. Those are the statutory powers laid down in the Matrimonial Causes Act 1973 available to the court to make an order delaying a decree absolute.  There is, however, authority to support the existence of a power under the inherent jurisdiction of the High Court to delay a decree absolute.  In England v England (unfortunately reported only in summary form) (1980) 10 Family Law 86, the Court of Appeal upheld an appeal by a wife against an order of a judge who, on granting a decree nisi on her undefended petition, had ordered that the decree was not to be made absolute until a maintenance order had been made in favour of the children.  In giving the lead judgment of the Court of Appeal, Brandon LJ stated:

"It was contended for the wife on this appeal that there were no circumstances in which the court had power to delay the making absolute of a decree nisi.  I do not accept that contention.  It is, in my view, clear beyond doubt that the court has the power to do that in the exercise of its inherent jurisdiction where there are special circumstances which make it just that it should be done."

On the facts of that case, however, the Court of Appeal held that the judge had erred in making the order and allowed the petitioner wife's appeal.

20. The two authorities quoted by Brandon LJ in support of the principle quoted above date from the days before the Divorce Reform Act 1969, namely Bromberg v Bromberg [1962] 1 WLR 1143 and Parks v Parks [1971] 1 WLR 1481.  The former is a very brief note of a decision of a judge at first instance who simply agreed with the submission of the late Mr Joseph Jackson on an ex parte application.  The latter is the decision of the Court of Appeal, of which the opening words of the judgment of Lord Denning MR are:

"This is the first case that has come before this court under the Divorce Reform Act 1969."

In that case the court, without reference to any authorities, upheld an order (made as it happens by Brandon J, as he then was) staying the making absolute of a decree nisi obtained under section 1(2)(e) on the basis of an agreement for ancillary relief which was allegedly vitiated by material non-disclosure.

21. Mr. Turner submitted in this hearing that this was not a strong line of authority, although shortage of time prevented him from developing that argument as thoroughly as he might have wished.  He contended, however, that it was inappropriate for the court to use its inherent jurisdiction to buttress and support statutory powers in matrimonial proceedings, citing the decision of the House of Lords in Richards v Richards [1984] AC 174 in support of that proposition.  Mr. Turner submitted that the Matrimonial Causes Act 1973, as amended, provides carefully crafted statutory provisions specifying the circumstances in which a decree absolute can be delayed and that in those circumstances it was wrong for the court to invoke its inherent jurisdiction to extend that power to other circumstances. 

22. Mr. Wilson, however, drew my attention to the unreported decision of the Court of Appeal in Dart v Dart (27th October 1995) in which Butler-Sloss LJ (as she then was) quoted the passage from Brandon LJ's judgment in England cited above and commented as follows:

"Consequently, one starts from the proposition that the husband has the right to a decree absolute after the appropriate period from decree nisi, and that period has now elapsed.  In the normal course of events he would be able to make the decree absolute unless the wife is able to show special circumstances to defer it.  At the end of the day it is an exercise of the discretion of the trial judge, but that exercise of discretion weights the granting of the decree absolute against the special circumstances very heavily in favour of the grant.  It is not a balancing exercise in the ordinary sense."

In Dart the Court of Appeal considered, and rejected, several arguments which were said to constitute sufficient reason for delay of the decree absolute.  Amongst those arguments was the possibility that the husband might die before decree absolute and as a result the wife might be worse off.          Butler-Sloss LJ pointed out that

"If, in fact, the husband did die, the Inheritance Act 1975 would meet the legitimate aspirations of this wife in a very similar way to an ancillary relief application."

23. Acknowledging that Mr. Turner did not have an opportunity to elaborate as fully as he might have wished on his argument, I conclude nevertheless on the authority of two Court of Appeal decisions that there is a discretionary power under the inherent jurisdiction to delay or stay an application to make a decree absolute, but this jurisdiction can only be exercised if the respondent is able to establish special or exceptional circumstances.

24. I therefore turn to consider whether the wife has proved the existence in this case of special or exceptional circumstances that justify the exercise of the court's discretionary power under the inherent jurisdiction to delay the making of the decree absolute.  I conclude that she has not demonstrated the existence of such special or exceptional circumstances for the following reasons.

25. The focus of the wife's concern is that if the decree is made absolute and the husband dies, she will lose financial benefits that she would have enjoyed had they still been married.  It cannot of course be asserted that this necessarily gives her a right to resist the decree absolute.  Financial disadvantage is not a ground for refusing a divorce and the statutory obligation at one stage imposed on a court when considering an application for ancillary relief to strive to put the parties in the position they would have been in had the marriage not broken down has long been abandoned.  If, however, a respondent can establish that she would suffer a financial or other disadvantage if the petitioner dies after the decree absolute for which she could not receive compensation, it is possible that the delay of the decree absolute under the inherent jurisdiction may be ordered.

26. In this case, in my judgment, no such risk of  disadvantage arises.  First, the husband has offered a comprehensive undertaking in respect of both the pension and the health insurance cover.  The precise terms of the undertaking were refined in the course of the oral submissions and are now as follows.  The husband will not apply to have the decree made absolute until seven days after (a) health insurance cover has been effected, providing the wife with benefits similar to those enjoyed by her under the previous BUPA policy and proof of such cover has been provided to her solicitor; and (b) he has nominated the wife to receive pension benefits under the company pension scheme of a sum equivalent to those that would have been paid to her on his death if she had remained his wife.  It is agreed that this undertaking will remain in force until the conclusion of the ancillary relief proceedings or prior further order. 

27. Mr. Wilson sought to persuade me that the undertaking in respect of the pension benefits is not "copper-bottomed" in the sense that there is no guarantee that the trustees of the pension fund would accept the nomination and that for that reason there should be an adjournment to await the replies to his instructing solicitor's letter to the pensions team.  I cannot see, however, how any answers from the pensions team will help the wife extract stronger undertakings from the husband.  Either the trustees of the pension fund will accept the nomination or they will not.  There is nothing so far as I am aware that the husband can do about it beyond making the nomination.  Furthermore, there is in fact no reason to believe that they will refuse the nomination.  Mr. Wilson was unable to my mind to demonstrate any advantage to be gained from a further adjournment.  Nor do I attach any significance to the enquiry made by the husband to be inferred from the letter from the pensions team, dated 24th November, as to whether it was possible to nominate a dependent to receive a percentage of the total spousal pension.  In my judgment, that is a perfectly reasonable enquiry for the husband to make.  It may, for example, inform his approach to meeting the wife's ultimate ancillary relief claim.  The fact is that the husband's undertaking as offered to the court is to nominate the wife to receive a dependent pension equivalent in value to the pension paid to a legal spouse.

28. The wife's case for a stay of the decree absolute might be stronger if she were able to demonstrate that, in the event of the trustees refusing to accept the nomination and the husband dying before the conclusion of the ancillary relief proceedings, she would be unable to recover reasonable compensation for the loss of pension benefits out of his estate.  She would, of course, in these circumstances have a claim under the Inheritance Act, and could in effect pursue the same claim that would have been available to her in the ancillary relief proceedings.  In assessing whether the husband's estate would be sufficient to meet such a claim, the court does not at this point have to embark on a detailed analysis of the husband's financial position.  It is sufficient to note that at that point the wife would be assured of keeping her share of the beneficial interest in the matrimonial home, which may be in dispute in the ancillary relief proceedings, to the value of about £3 million, and would be able to pursue a claim for further provision against the husband's estate which would be worth at least a further £3 million.  In all the circumstances, including the comparatively short duration of the marriage, the wife's own earning capacity, and the parties' relative contributions to the marriage, it seems to me impossible to argue that there would not be sufficient resources to meet the wife's reasonable claims.  I acknowledge that litigation under the Inheritance Act would incur costs and cause anxiety, but not in my judgment significantly more than will be caused by a fully contested ancillary relief claim.

29. So far as the health policy is concerned, Mr. Wilson raises the point that the husband's offer is only to provide similar cover to that which he has provided under the existing scheme.  He says that the wife is entitled to equivalent cover.  I consider the husband's offered undertaking to be perfectly reasonable.  The difference is certainly no reason to delay the decree absolute.

30. In the circumstances I reject Mr. Wilson's submissions that the wife faces very significant prejudice and detriment if the decree nisi is made absolute.  In my judgment, given the undertaking now offered and the substantial resources available in the husband's estate in the event of his death, the risk is minimal and certainly insufficient to justify denying the petitioner the right to have his decree made absolute. 

31. Accordingly, the respondent's application is refused.

MR. TURNER:   My Lord, I am sure Mr. Wilson and I will be able, between us, to draft the appropriate undertakings and order to reflect what your Lordship has said.  Do I apprehend from your Lordship's judgment that your Lordship is saying that the husband should now be entitled to obtain his decree absolute?

MR. JUSTICE BAKER:  Well, subject to the undertakings.

MR. TURNER:  Subject to the undertakings, yes, of course.  He does not have to wait till April.


MR. TURNER:  I understand, yes.

MR. JUSTICE BAKER:  Is that not clear?

MR. TURNER:  I think it is.  I just wanted to make absolutely sure so that we can incorporate that out of an abundance of caution in the order.  My Lord, the only remaining matter is the question of the costs of the hearing before your Lordship.

MR. JUSTICE BAKER:  Yes.  Before we get to that point, the order will be upon the undertakings, as proffered by you and recited by me.


MR. JUSTICE BAKER:  The application for a stay -- is that the right way of putting it?


MR. JUSTICE BAKER:  The application for a stay of the decree absolute is refused.  All right?  I would be grateful if one of you -- it may be, Mr. Wilson, it would be easier if it is you who does it -- could draw up a short order to that effect.  Thank you very much.  So, upon the undertakings recited, application by respondent for a stay of decree absolute is refused.  What do you say about the costs, Mr. Turner?

MR. TURNER:  My Lord, this is not one of those cases dealt with under the Ancillary Relief Rules where there is no presumption.

MR. JUSTICE BAKER:  Well, subject to hearing Mr. Wilson, I am with  you on that.

MR. TURNER:  It is a Part 44 application, where the presumption is the other way, that costs follow the event.

MR. JUSTICE BAKER:  So it is not an application covered by the ancillary relief regime?

MR. TURNER:  No.  It is a straightforward Part 44 costs application which are engaged in relation to this sort of application, and therefore the presumption is that costs follow the event and we submit there is no good reason for displacing that presumption -- subject to anything my friend says and my response to that.

MR. JUSTICE BAKER:  Thank you.  Mr. Wilson?

MR. WILSON:  Well, my Lord, I have to accept that this is not covered by the no order as to costs regime and that costs will normally follow the event.

MR. JUSTICE BAKER:  Yes, I think that is right, Mr. Wilson.

MR. WILSON:  My Lord, obviously my learned friend has won this application.  Costs are, of course, a matter of discretion for the court.


MR. WILSON:  Your Lordship has heard the arguments.  They were arguments that involved an evolving undertaking and an evolving situation in relation to what was known at the time.


MR. WILSON:  And arguments as to the law, which your Lordship rejected so far as my learned friend is concerned.


MR. WILSON:  In those circumstances, my Lord, I would submit that the appropriate order is no order.

MR. JUSTICE BAKER:  Yes.  Well, Mr. Wilson, it is first of all right that the undertaking did evolve in the course of the hearing but not in my view so significantly as to affect my discretion on costs in your favour.  Equally it is right that I was against Mr. Turner on one of his submissions -- the existence of the jurisdiction -- but very clearly with him on his other submissions.  So in those circumstances, Mr. Wilson, my view is that costs must follow the event and I make an order that your client should pay the costs of this application.  What order do you want me to make about that, if any?

MR. WILSON:  Well, in the past it has been costs to be subject to a detailed assessment, if not agreed, on the standard basis.


MR. TURNER:  I seek no more than that, my Lord.

MR. JUSTICE BAKER:  Right.  So the order is that the respondent do pay the petitioner's costs of this application, to be assessed on the standard basis?

MR. TURNER:   On the standard basis if not agreed. 

MR. JUSTICE WILSON:  On the standard basis, if not agreed.  Thank you very much.

MR. WILSON:  My Lord, there is one further matter.


MR. WILSON:  And that is that I am instructed to ask for permission to appeal the order that your Lordship has made, and to seek a stay of the execution of the order pending the hearing of that appeal.  My Lord, there are obviously the issues of law as to jurisdiction, on which your Lordship has found in my favour, but as a matter of the exercise of that discretion, there is an order made which has the effect of changing my client's status by bringing into place a decree absolute at an earlier stage than she has sought and there are the points that I made in my submissions to your Lordship last Wednesday in relation to how that discretion should be exercise.  So in those circumstances I would ask you for permission to appeal.

MR. JUSTICE BAKER:  Thank you, Mr. Wilson.  I refuse your application for permission to appeal.  In my judgment this was a very clear decision on the exercise of the discretion and I do not consider that the issues of law which you raise by themselves justify the giving of permission. So I refuse that application.

So far as a stay is concerned, of course, your client is to some extent covered by the terms of the undertaking which give seven days -- give you a leeway of seven days -- after receipt of the notice about the pension benefits.  So in those circumstances I consider -- unless there is anything else you want to say -- that you are adequately covered and that if you wish to pursue this matter further you must make an application in the appropriate terms to the Court of Appeal.

MR. WILSON:  So be it, my Lord.

MR. JUSTICE BAKER:  Thank you.

MR. TURNER:  I am most grateful, my Lord.

MR. JUSTICE BAKER:  Application for permission and stay refused.  Mr. Wilson, I would be very grateful if you could draw that order up. It is not something that needs to be done in the next few minutes if you have other matters to attend to; but at some point in the first part of this week, I would be very grateful.

MR. WILSON:  My Lord, yes.  I would want to consult with my learned friend over the precise terms of the undertaking --

MR. JUSTICE BAKER:  Absolutely.

MR. WILSON:  -- before I set it down on paper.

MR. JUSTICE BAKER:  The position is you may have observed that I was reading out a judgment.  It is not in a form which I can hand down at the moment.  But in the event that for any reason a transcript is required, there will be no difficulty about that being done at relatively short notice.

MR. WILSON:  Thank you very much, my Lord.

MR. JUSTICE BAKER:  I think I should retain these papers for the moment in the event that I have to tidy up the transcript for any reason.  Thank you.