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Jones v Jones [2010] EWCA Civ 890

Wife’s application for permission to appeal Charles J’s order within ancillary relief proceedings. Permission to appeal on specified grounds granted with judicial encouragement to resolve the matter by court-led mediation.

An application by a wife for permission to appeal an order of Charles J within ancillary relief proceedings. The appeal was brought on various grounds, challenging an award by the judge on the grounds that:

(i) The award was wrongly made on the basis of need as opposed to sharing;

(ii) The judge's attribution of the value of the Husband's company at the outset of the marriage as being 60% of its value at the time of disposal was arbitrary and at odds with the evidence;

(iii) The judge was wrong in stating that the marriage represented but one third of the life of the business, when on the evidence it was half;

(iv) An award of 22% of the overall assets after a 10-year marriage where the bulk of the wealth was created during the marriage was far too low.

Permission to appeal on grounds ii., iii. and iv. was given, Thorpe LJ and Black LJ inviting the parties to consider court-led mediation pending hearing of the appeal.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers

Case No: B4/2010/0623
Neutral Citation Number: [2010] EWCA Civ 890

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 24th June 2010


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JONES Appellant

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JONES Respondent

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(DAR Transcript of
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Mr M Pointer QC & Mr G Kingscote (instructed by Mishcon De Reya) appeared on behalf of the Appellant.

Ms L Stone QC (instructed by Levison Melzer Pigott) appeared on behalf of the Respondent.
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(As Approved by the Court)
Crown Copyright©

Sir Nicholas Wall: 
1. This is an application for permission to appeal an order made by Charles J in ancillary relief proceedings which finally saw the light of day in March 2010, although it appears from the judgment that he heard the case in June and July 2009.  The application was put into the list by my Lord inter partes and we have had the advantage of hearing both Mr Martin Pointer QC and Ms Lucy Stone QC advocating their respective positions.  It is a judgment, if I may say so, of extraordinary length, running some 484 paragraphs, in a case which the parties acknowledge can be reduced to one sheet of paper and which is not particularly difficult.

2. Nonetheless, four grounds of appeal are raised by the wife.  First of all, it is said that in assessing the award for the appellant the judge computed a figure based on sharing of ?5.8 million, including costs, and a figure based on need of ?5.4 million.  He then awarded the latter; the argument is that it was wrong in principle to take the lower of the two figures in compliance with the hearing guidance which is given in the House of Lords and the Court of Appeal.  Ground 2, it is said that in respect of the respondent's company the judge's attribution of 60% of the value at the time of its disposal to the husband's pre-married endeavour was arbitrary and at odds with the evidence, particularly with the evidence of the accountants that at the time of the marriage it was worth ?3.2 million; and in conflict with other conclusions of the judge where he rejected the adoption of arbitrary percentages.  Thirdly, it is argued that the judge was wrong to state the marriage represented but one-third of the life of the business when on the evidence it equated to half; and, fourthly, an award of about 22% of the assets of the marriage after a marriage of ten years and when the bulk of the wealth created during the marriage was far too low.

3. In my judgment ground 1 is not really arguable.  The difference between ?5.8 million and ?5.4 million in the context of the assets in this case is marginal, and were that the sole ground of appeal it would be likely in my judgment that this court would refuse permission on the basis that such a discrepancy leading to a result of ?5 million based on the judge's acceptance of the lower figure, even if that was wrong, is not such as would warrant the attention of this court.

4. Furthermore, Ms Stone has taken us to a number of passages in the judgment in which it is plain that the judge accepted that the wife had undisclosed sources of income given to her by her mother, on which she could not put figure but which demonstrated the generosity of her mother towards her.  The judge also found as a fact that it appeared that that was likely to be ongoing.  In those circumstances, it seems to me at least that the discrepancy identified in ground 1, even if it exists, is not sufficient to warrant an appeal.

5. However, it does seem to me that Mr Pointer is on firmer ground when, in grounds 2, 3 and 4, and in particular grounds 2 and 4.  It seems that -- although the judgment is, as I say, very lengthy -- the judge rejected the position which both parties adopted in the proceedings.  Mr Pointer makes a very simple point in relation to it.  He says that here you have assets of the best part of ?25 million.  In paragraph 457 of his judgment the judge assesses 60% of the value of husband's company at separation as attributable to the creative years before the marriage.  Mr Pointer submits that was not a proposition argued before the judge.  He submits that is a figure which the judge has effectively plucked out of the air, that it is not justified by the evidence, and it has led to the judge effectively taking ?15 million out of the pot and giving the wife half of ?10 million; therefore ?5 million.  The submission is, therefore, that this is an error of principle, and one which plainly is not justified by the evidence.

6. On the other side, Ms Stone argues that this was a perfectly legitimate exercise of discretion by the judge.  He was perfectly entitled, having listened to all the evidence over a lengthy trial, to take that view and to come to that conclusion.  Having come to that conclusion, exercising his discretion under section 25 of the Act, he reached a conclusion and outcome which was entirely open to him.

7. As I say, it seems to me, whether or not it ultimately succeeds is another matter, but that argument is one which is open to the wife to advance to this court.  Speaking for myself, therefore, I would give permission in relation to grounds 2, 3 and 4 of the grounds of appeal.  Clearly, if ground 2 is established then the figures in ground 4 fall to be adjusted.  That is a matter which, no doubt, the full court will need to consider.

8. Therefore, speaking for myself, and expressing my gratitude for the argument we have had this morning, I would refuse permission on ground 1, but grant permission on grounds 2, 3 and 4 of the grounds of appeal. 

Lord Justice Thorpe:
9. I agree.  The outcome is that the gates into this court are open.  It does not mean that the parties have to go through the gates.  They still have the opportunity to take stock as to the proportionality of investing in an appeal which may not disturb the judge's quantification.  Mediation is offered by this court.  The court's ADR scheme is available to the parties, and, should they wish to avail themselves of a process of mediation supervised by this court, arrangements for this will be made.

Lady Justice Black:
10. I agree that there should be leave granted on grounds 2 to 4.  I particularly want to associate myself with what my Lord, Lord Justice Thorpe, has said about the other ways forward for the parties in this case, rather than spending time and money litigating in these courts.

Order:  Application granted in part.