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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
MR JUSTICE MOSTYN
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LADY JUSTICE BLACK
SIR DAVID KEENE
||- and -
Mr Richard Dew (instructed by Taylor Wessing) for the Applicant
Mr Max Lewis (instructed by Moss Fallon solicitors) for the 1st Respondent
The 2nd Respondent provided a skeleton argument but was neither present or represented at the hearing
Hearing date: 26th February 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
BLACK LJ :
- This is an appeal brought by the trustees of a post-nuptial settlement ("the trustees") against an order of Mostyn J, made on 25 June 2014, varying that settlement by way of ancillary relief following a divorce between the spouses (hereafter "the wife" and "the husband"). The husband and the wife are the respondents to the appeal.
The terms of the settlement
- The settlement (hereafter "the trust") was established on 21 April 2009. I shall summarise the main provisions, albeit in simplified terms.
- The trust property was (and still is) a farmhouse ("the trust fund"). The principal beneficiary was the husband. The settlor, as defined at the start of the trust deed, was his father and mother. It appears elsewhere in the draft as if the draftsman might have proceeded upon the basis that the settlor was his father alone; nothing turns on this. The husband's father is one of the trustees. The discretionary beneficiaries are the settlor's children and remoter descendants and those added pursuant to a power under clause 3 to add to the discretionary beneficiaries. The trust period is 80 years from the date of the settlement or such earlier date as the trustees should specify.
- By clause 4, the trustees were given power to appoint the whole or part of the capital and income of the trust fund on trust for all or any of the discretionary beneficiaries in such shares as they may appoint in accordance with the rules of appointment which were set out in the trust deed.
- Subject to clause 4, the trust property and any income of it was to be held on trust to pay the income to the husband during his life, and it was declared that "the making of any land or building comprised within the Trust Fund available for occupation by the Principal Beneficiary shall be a purpose of this trust". The trustees were given power to transfer the farmhouse to the husband or raise money from it and apply that for his benefit "in such manner as [they] shall in their absolute discretion think fit". Subject to that, they were given powers to apply the trust fund for the maintenance, education or benefit of one or more of the discretionary beneficiaries.
- At the expiration of the trust period, the capital and income of the trust fund was to be held on trust for the husband's brother, his children and remoter issue.
- Before Mostyn J, the trustees argued that the trust was not a nuptial settlement or, if it was, that the only nuptial element which was capable of variation under section 24(1)(c) of the Matrimonial Causes Act 1973 was the husband's right to occupy the farmhouse. The judge found against them on both points. In making his finding that the trust was a nuptial settlement, he relied upon a letter written by the settlor to his bank in December 2007 with a view to having the farmhouse released from a mortgage affecting it. In that letter, the settlor spoke of "the transfer of [the farmhouse] into trust to make provision for a home there for our younger son …and his wife". In finding that the court's powers extended to the whole trust fund rather than just the husband's right to occupy, Mostyn J relied upon the clause giving the trustees power to advance all of the property to the husband. These findings were not appealed. The focus of the appeal was the specific order made by the judge under section 24(1)(c) which it was said was wrong in that it exceeded the proper ambit of his discretion or failed to balance the relevant factors properly.
The judge's order
- Mostyn J ordered that the husband personally should pay to the wife a lump sum of £7,500. That has been paid and there is no debate about it.
- He varied the trust to provide, in essence, as follows:
i) a sum of £23,000 was to be paid to the wife absolutely;
ii) a sum of £134,000 was to be provided for the benefit of the wife for life, to be held by independent trustees, with the wife entitled to use the capital sum for or towards the purchase of a property for her occupation and having the benefit of the income during her lifetime.
- A period of six months was allowed for the sum of £134,000 to be provided, and the order permitted it to be provided otherwise than from the assets of the trust and, with the agreement of the wife, on terms other than those set out by the judge.
- There was no need for the judge to make any orders about other assets. The order simply recited arrangements made between the parties about them.
- The husband and wife first met in 1999. They are now in their mid forties. They lived together in the husband's parents' home from 2002 then married in 2003. They have one child who is now of primary school age.
- The husband's family were described by Mostyn J as being "of great wealth". They own property and there are family businesses. The year after the husband and wife were married, the husband's parents gave them a derelict property, which they made into an attractive house, using their own efforts and borrowed money. It was sold the following year and, after debts were paid off, the surplus was used in three ways. Some was lent to the family enterprises. Some was spent on the farmhouse which was to be a home for the husband and the wife, and which was then, in the pre-settlement days, owned by the husband's family; the wife contributed a further £5,000 herself to the improvements to it. Some was, as the judge put it, "spent by the parties on buying things and living".
- It was in 2005 that the parties moved into the farmhouse. They separated in 2012 and decree nisi of divorce was pronounced in the spring of 2013.
- A joint residence arrangement was reached between the husband and the wife in relation to their child. By the time of the hearing before Mostyn J, the wife was dividing her time between the farmhouse, in which she lived when the child was in her care, and her parents' spare room in Oxfordshire where she lived when the child was with the husband.
- The husband adopted a child after the breakdown of the marriage. He also has had a further child by a new partner. At the time of the hearing, he and his partner were living with the children in a property owned by his family, but he said that it was too small for a family with three children and he wished to move back to live in the farmhouse, which the trust would make available for him. Leaving pensions to one side, the only capital asset he owned personally was a plot of land with a net value, after subtraction of notional capital gains tax, of just under £38,000.
- The husband's income from all sources, including welfare benefits, was said to be just under £3,000 per month. He is by profession a copywriter but the judge said that did not "tell the whole story by any means". He works in the family enterprises and is a shareholder in and director of the company set up to undertake developments of family property. Commenting on the benefits to the husband of his family's situation, the judge said that "although there is no sense of entitlement on his part, his position in terms of financial security is absolutely secured".
- The wife has also formed a new relationship. Mostyn J said that her new partner was about to buy a home for £500,000. The wife said that she was not going to live with him, but the judge said that it was "perfectly clear that the relationship is strong" and that it was the wife's hope that it would continue. Mostyn J accepted that, despite the relationship, it was necessary for the wife to purchase her own accommodation, but he factored the existence of the relationship into his thinking about the wife's capital needs.
- The wife's plan was to purchase a property where she could live, as could her child when with her. She wanted to be near to her family and friends in Oxfordshire which Mostyn J thought was not unreasonable (judgment §67). As can be seen from the documentation that was before Mostyn J, the wife's case was that to acquire a suitable property would cost approximately £300,000 (see, for example, the wife's statement of January 2014 at §81). She sought provision from the husband/the trust.
- The wife had certain assets of her own. By the time she met the husband, she had already bought her own home and she still owns that property which is rented out. Taking the figures as they were at the time of the hearing before Mostyn J, it has an equity of nearly £200,000. Borrowing against it, she had bought a second property which has a negative equity of £5,890. Notional capital gains tax, if both properties were to be sold, would be just over £26,000. She had £3,675 in a bank account. She owed her father £84,000 which he had lent to her for the costs of the ancillary relief and children proceedings; this represented most of her father's savings and the judge thought it understandable that she wished to repay him. Taking all of this into account, Mostyn J worked upon the basis that, net of debts, the wife's capital was £87,160 (judgment §63). She also had pension entitlements which would benefit her in the future, as did the husband, hers being rather larger than his but neither party having particularly ample provision; indeed Mostyn J described the husband's pension fund as "microscopic".
- The wife is a journalist by profession. She and the husband ran a company together, but since separation, the wife has begun her own business. Mostyn J did not make any finding as to her past or future earnings. She was not seeking periodical payments but her case was that she had no meaningful mortgage capacity (see her statement of January 2014 at §70). It appears, from the way in which he approached the wife's needs and resources (see particularly §61 et seq of the judgment) that Mostyn J accepted that.
The judge's reasoning
- A picture emerges from Mostyn J's judgment of how the farmhouse came to be available to the parties and of what those involved understood and intended about it. He found that the wife did not see the trust deed until after the marriage was over, but that she knew before that that the property was not owned by her and her husband, and that it was intended that it would stay in the family, reverting to the family estate after they had finished living in it. He found that had the marriage not broken down, the parties would probably have continued to live in the farmhouse until very old age.
- He rejected the evidence of the husband's family that the property was needed for farming purposes, pointing out that it would not have been available for that purpose if the marriage had worked out, nor would it be available now if the husband and his new family were to live there as intended.
- Having found that the trust was a nuptial settlement, he considered what variation of it would be appropriate. He said that "the intention of the settler and the knowledge of the parties that ultimately the value of the settlement would revert to the estate, must be given heavy respect", referring to what the husband's father wrote to the bank manager, at the time when the trust was being conceived, to the effect that the point of putting the house in trust was to ensure that in the long term it remained available as a farm or estate asset (§52). But on the other hand, he reminded himself that the property was the parties' matrimonial home for a long time, citing Lord Nicholls in Miller v Miller  UKHL  2 AC 618 at §22 where he considered the difference between matrimonial property and other property. Mostyn J observed (§54) that he had to:
"resolve the familiar tension between balancing the right to share matrimonial property of which the most important element is the matrimonial home, however provided, with the fact that there is a trust here and the intention of the trust was, as the husband's father clearly stated, to ensure that in the long term the property remained available as a farm or estate asset."
- Mostyn J took the value of the farmhouse as agreed between the parties (£325,000) which would produce a net value of £314,000 after allowing for notional costs of sale. He observed that if there were no trust complications, the starting point under the sharing principle, subject to the question of need, would be that the wife would receive half of its value, £157,000. However, in light of the trust complication, his analysis did not stop there.
- He determined first that the wife should receive a total of £30,500 outright. This was made up of (1) £23,000 from the trust by way of variation to reflect the money that she had put into the farmhouse, namely £5,000 from her personal resources and £18,000 being half of the parties' joint contributions (see §56 of the judgment), and (2) £7,500 from the husband personally, being one half of the £15,000 that the parties had lent to the family enterprises, in return for which she was to transfer to the husband any debt due to her from that family company (see §58).
- A key paragraph in the judgment is §60 where the judge explained his reasoning for varying the trust to make provision for the use of further capital by the wife for life. He said:
"Now, in my judgment justice in this case, reflecting the sharing principle in relation to the core element of matrimonial property and, at the same time, the existence of the trust and its purpose, entitles the wife to a further award, but not on an outright basis from the trust. Half of the net value of [the farmhouse] is £157,000. She will be getting £23,000 outright, so that leaves £134,000. That sum will be extracted from the trust and appointed to the wife, but on the terms of a life tenancy. There will be independent trustees, no power of advancement, and on her death the sum will revert to the estate. The details will need to be sorted out in circumstances which I will mention. It therefore follows that the trust will be varied to create a wife's fund, of which £23,000 will be outright and £134,000 will be on the life tenancy terms which I have mentioned."
- Mostyn J then went on to consider whether that would meet the wife's needs. She would have just over £87,000 of her own plus £30,500 outright from the husband and the trust. The fund made available for life from the trust would bring her capital up to just over £250,000. It can be seen from §67 that the judge did not consider that this was in any way generous provision for her and it was certainly less than she had said she needed. He said that he would have had his doubts as to whether it was enough for her to acquire accommodation had she been "assuredly single" but taking into account her relationship, he found it to be sufficient to meet her needs.
- Mostyn J alluded at the end of his judgment to the possibility of alternative means being found to provide the funds required for the wife. His order allowed 6 months for the sum of £134,000 to be found and permitted it to be provided other than from the assets of the trust.
The nature of the appeal
- The trustees challenged both of the orders that the judge made in respect of the trust. In short, they argued that it was not open to him to exercise his discretion in this way, submitting that the order failed to take account of the needs of the children, the interests of the other beneficiaries under the trust, the intention of the settlor that the property would not be sold, the husband's needs (particularly for housing), and the wife's ability to provide for herself from her own or other assets. The judge was in error, they said, in making an order which, given that the trust had no other means to raise the sums required, would necessitate the sale of the farmhouse which should be a home for the husband and his children.
- The grounds of appeal also criticised the judge for wrongly proceeding on the basis that the husband's family would satisfy the order so as to avoid the farmhouse being sold, or at least placing improper pressure on them to do so.
- Mr Dew's skeleton argument on behalf of the trustees made a further complaint which was not in the grounds of appeal, namely that the order that the judge made had not been canvassed properly with the parties.
- As the only order that was made against the husband directly was for the payment of the lump sum of £7,500 and that had been paid, the husband did not himself appeal or appear on the appeal. However, a skeleton argument was filed on his behalf which lent support to the position of the trustees.
The judge's judgment in relation to permission to appeal
- Dealing with the application made to him, in the circumstances described by my Lord, Lord Justice Jackson, for permission to appeal, Mostyn J made a particularly full response to the complaints made by the trustees ("the second judgment"). For the most part, it is unnecessary to refer to that judgment here but a handful of matters do need to be extracted from it and it will be convenient to do that as I discuss the grounds of appeal.
- As is material to the question of the treatment of post-nuptial settlements, section 24(1) of the Matrimonial Causes Act 1973 provides:
"(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say –
(c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage, other than one in the form of a pension arrangement (within the meaning of section 25D below);
(d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement, other than one in the form of a pension arrangement (within the meaning of section 25D below)"
- Counsel were agreed that the principles on which the section 24(1)(c) power should be exercised in a case such as this are set out in Ben Hashem v Ali Shayif  EWHC 2380. They did not seek to persuade us to alter the formulation of them in that case by the then Munby J in any way. Their argument was rather about what was a proper application of the principles in the present case.
- In Ben Hashem, Munby J surveyed the relevant authorities, then summarised the principles as follows:
"290. Surveying all this learning, identifying what is of enduring significance whilst ruthlessly jettisoning what has become more or less irrelevant in modern conditions, I can perhaps summarise matters as follows:
i) The court's discretion under section 24(1)(c) is both unfettered and, in theory, unlimited. As Miss Parker put it, no limit on the extent of the power to vary or on the form any variation can take is specified, so it is within the court's powers to vary (at one end of the scale) by wholly excluding a beneficiary from a settlement, to (at the other end) transferring some asset or other to a non-beneficiary free from all trusts. She points to E v E (Financial Provision)  2 FLR 233 and C v C (Variation of Post-Nuptial Settlement: Company Shares)  EWHC 1222 (Fam),  2 FLR 493, as illustrations of property held on trust being transferred free from any trusts to the applicant, in E v E a sum of £50,000 and in C v C shares in a Cayman company.
ii) That said, the starting point is section 25 of the 1973 Act, so the court must, in the usual way, have regard to all the circumstances of the case and, in particular, to the matters listed in section 25(2)(a)-(h).
iii) The objective to be achieved is a result which, as far as it is possible to make it, is one fair to both sides, looking to the effect of the order considered as a whole.
iv) The settlement ought not to be interfered with further than is necessary to achieve that purpose, in other words to do justice between the parties.
v) Specifically, the court ought to be very slow to deprive innocent third parties of their rights under the settlement. If their interests are to be adversely affected then the court, looking at the wider picture, will normally seek to ensure that they receive some benefit which, even if not pecuniary, is approximately equivalent, so that they do not suffer substantial injury. As Sheldon J put it in the passage in Cartwright which I have already quoted: "if and in so far as [the variation] would affect the interests of the child, it should be permitted only if, after taking into account all the terms of the intended order, all monetary considerations and any other relevant factors, however intangible, it can be said, on the while, to be for their benefit or, at least, not to their disadvantage."
- Munby J continued:
"291. Miss Parker submitted that the central theme which permeates these authorities is that it is permissible for the court to invade third party interests within the confines of the trust structure, but only to the extent that fairness so requires. It is acknowledged that in the generality of cases, the court should indeed be slow to do so. Broadly speaking, I accept that submission.
292. Moreover, as she rightly points out, the court always retains a discretion as to the extent of any variation. Even in circumstances where the court could quite properly vary a post-nuptial settlement so as to transfer (say) the matrimonial home to a wife free from any trusts, it may nonetheless direct some less intrusive form of variation, such as to transfer the property to the wife for life and thereafter to the other beneficiaries, to confirm the right to remain in occupation indefinitely without any form of transfer, or to direct that the applicant has a right to remain in occupation until (say) other orders made have been complied with. All of this depends, of course, as she says, on the court's views as to what is fair on the facts, as it finds them, of the particular case."
- In a slightly later passage upon which Mr Dew for the trustees relied, he said:
"300. Miss Evans-Gordon for her part submits that any legitimate variation could not require the introduction of new property from outside the settlement as would be necessary to pay the mortgage and other outgoings. I agree. …."
- The only other authority to which I need refer is Thomas v Thomas 1995] 2 FLR 668 to which we were taken for its summary, at page 670, of the principles that apply where a spouse may have access to resources but no absolute entitlement to them. I will quote that whole passage but it is the latter half of it which is important:
The discretionary powers conferred on the court by the amended ss 23-25A of the Matrimonial Causes Act 1973 to redistribute the assets of spouses are almost limitless. That represents an acknowledgement by Parliament that if justice is to be achieved between spouses at divorce the court must be equipped, in a society where the forms of wealth-holding are diverse and often sophisticated, to penetrate outer forms and get to the heart of ownership. For their part, the judges who administer this jurisdiction have traditionally accepted the Shakespearean principle that 'it is excellent to have a giant's strength but tyrannous to use it like a giant'. The precise boundaries of that judicial self-restraint have never been rigidly defined – nor could they be, if the jurisdiction is to retain its flexibility. But certain principles emerge from the authorities. One is that the court is not obliged to limit its orders exclusively to resources of capital or income which are shown actually to exist. The availability of unidentified resources may, for example, be inferred from a spouse's expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example, of a beneficiary under a discretionary trust or someone who is dependent on the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case. There are bound to be instances where the boundary between improper pressure and judicious encouragement proves to be a fine one, and it will require attention to the particular circumstances of each case to see whether it has been crossed."
Discussion of the arguments advanced by the trustees by way of appeal
Order not canvassed with the parties
- I can deal shortly with the complaint that Mostyn J made an order which had not been properly canvassed with the parties. Mostyn J rejected this "comprehensively" in his second judgment on the basis that he had raised the possibility of a variation of this type on the first day of the hearing and nobody asked for an adjournment to deal with it. I agree with him that there is nothing in this complaint. The hearing had been listed for four days, and all but the judgment was concluded on the first day, so there would have been time to return to the matter after reflection and preparation of further argument but that opportunity was not sought.
Wrong approach to the trust and to the wife's entitlement
- I turn to Mr Dew's points as to the substance of the order. He submitted that in his dealings with the trust, the judge had not applied the principles set out in the case of Ben Hashem. Mr Dew's focus was particularly upon the judge's treatment of the intention of the settlor that the farmhouse should be kept in the estate and benefit future generations, and upon the adverse impact of the judge's order upon the husband and children and upon other beneficiaries of the trust.
- Mr Dew's submission proceeded upon the basis that the husband and children, all of whom were beneficiaries under the trust, needed the farmhouse as a home and would be wrongly deprived of it because the judge's order meant that it would have to be sold, the trust having no other way in which to make the required provision. Not only was this contrary to the intention of the settlor, it also left the husband, in his submission, without a proper home. In addition, he argued that the other beneficiaries of the trust would be deprived of real financial benefit by the sale of the property and the postponement of their interests behind those of the wife for such a long period as to amount, for all practical purposes, to them being extinguished.
- In Mr Dew's submission, Mostyn J approached matters on the wrong basis, seeking to provide the wife with a share of the assets when he should have proceeded upon the basis of her needs. If he had dealt with matters in that way, he would, in Mr Dew's submission, have concluded that the wife could meet her needs from her own resources, in the form of her own capital and income or by relying on her new partner, and there was no need to vary the trust.
- The breadth of the discretion to vary a nuptial settlement is considerable, including the power to exclude a beneficiary entirely from the settlement and to transfer an asset to a non-beneficiary free from all trusts (Ben Hashem §290(i)). In theory, therefore, it is wide enough to encompass the order that Mostyn J made. The appeal can only succeed if the exercise of the discretion in this case was flawed.
- The starting point for the exercise of the discretion is section 25 of the Matrimonial Causes Act 1973, as Munby J pointed out in Ben Hashem (§286 and §290(ii)), and the objective is a result that is fair to both sides (ibid §290(iii)) and which does not interfere with the settlement more than is necessary to do justice between the parties (ibid §290(iv)).
- Mostyn J started his consideration of what order, if any, to make with the sharing principle. I would not have started there. In this case, it was need which was likely to be more influential, specifically the need for accommodation. Mostyn J did deal with need, but later on in his judgment. I turn to it first. In considering it, it is important to remember that not only did the wife herself need accommodation, the child also needed somewhere to stay with the wife and, furthermore, did not need to be burdened with anxiety about the wife's living circumstances at other times.
- Mostyn J accepted as reasonable the wife's desire to live near her family in Oxfordshire. He appears also to have accepted her case as to the cost of a suitable property there; this was not the focus of any argument on appeal and nor was Mostyn J's analysis of the wife's own capital situation as it then was. Similarly, the arguments on appeal did not focus upon the wife's earning capacity or borrowing capacity in order to seek to establish that they had been significantly under-estimated. It followed that the wife could not afford to purchase a home relying solely on her own capital and income; this is plain from the judge's calculations at §§61 and 63 of his judgment.
- Although conscious of the potential impact of the wife's new relationship upon her needs/resources, Mostyn J did not treat it as wiping out the need for the wife to buy a home of her own. The question of the relationship was explored in some depth at the hearing and the wife was cross-examined about it at length, as we can see from the second judgment. There was no request for an adjournment so that the man concerned could come to give evidence or for any further disclosure on the subject. It was very much a matter for Mostyn J to determine, in the light of all the information that he had, how he thought the relationship would be likely to develop and what impact it had on the wife's resources/needs. I will return in the following paragraph to the way in which he did factor it into the equation. All that needs to be said at present is that I would not interfere with his assessment that the wife's housing needs were not satisfied by this route. It follows that the trustees' argument that the wife had the capacity to provide for herself from her own resources (financial or other) cannot succeed.
- Mostyn J's consideration of how much was required to provide for the wife was carried out in the context of a cross-check of the figures that he had provisionally in mind as a result of his sharing analysis but it serves perfectly well to demonstrate the level of provision that he found was needed. He totted up the sums that the wife had herself, what she would receive outright by way of his proposed order, and what he had in mind that she should have by way of a life interest, reaching a total of just over £250,000. It is clear that he viewed this as possibly not enough for her housing purposes, as we can see from §67 of the judgment where he said he was doubtful whether it would be enough "if [she] were assuredly single". However, it was this figure that he took for the purposes of his order, because it was at this point that he factored in the existence of the wife's new relationship, adopting the pragmatic solution of treating it as a justification for limiting the provision that he made for the wife, notwithstanding his doubts as to whether it was sufficient for her housing needs. It was a delicate balance that he had to strike and, in my view, this court should not interfere with his approach on this point.
- As for the husband's needs, Mostyn J was well aware that the plan on his side was for him and his new family to live in the farmhouse (see §42 of his judgment, for example). He did not accept that it was necessary for them to do so, nor even regard it as a hardship/disadvantage to the estate, or to the husband and the children, if there were to be a sale, as he said in the second judgment. As for the estate, he rejected, and in my view was entitled to reject, the assertion that the farmhouse was crucial to the farm; the intended use of the property as a permanent family home fatally undermined that line of argument. As for the husband and the children, they were, in fact, housed elsewhere in family property. Mostyn J acknowledged that that home (from which it seems they have since moved back to the farmhouse) might be "somewhat cramped", but he had few options as to how to provide for everyone's needs and it appears he did not consider this unworkable. In his second judgment, he balanced this disadvantage to the husband with the disadvantage to the wife that she would not be able to live in a property of any particular value either (§19). It was very much a matter for him to determine, on his assessment of the evidence, what the husband's reasonable needs for accommodation were and how they would be satisfied, and I would not interfere with his conclusions on the subject which could, perhaps, be summarised as being that the family would provide, even if the farmhouse was sold. It is worth noting in this regard that the husband's father said in oral evidence (page 96 of the transcript) that the family expect "all family members, all those who are supporting the family" to live rent free. Furthermore, I do not know to what extent it would assist, but it should not be ignored that the life interest awarded to the wife will not use up the whole of the proceeds of sale of the farmhouse and the funds left over will be available to put towards the husband's accommodation in whatever way the trustees think fit.
- In the light of his conclusions about the parties' respective needs and resources, in my view, Mostyn J had no choice but to turn to the trust in order to provide for the wife and he was entitled to do so. The question becomes whether the order that he made failed to pay sufficient regard to what might be called compendiously "the trust considerations". The judgment leaves one in no doubt that Mostyn J gave full attention to these considerations. He said that he gave "heavy respect" to "the intention of the settlor and the knowledge of the parties that ultimately the value of the settlement would revert to the estate" and it is apparent from his judgment, both in terms of what he said and what he ordered, that this was not merely lip-service. He referred in §54 to the tension that the court had to resolve and in §55 acknowledged that the case was not a straightforward case because of the "trust complications". In the paragraphs that followed, his efforts to provide for the wife, whilst still respecting the existence and purpose of the trust, are clear. And his choice, at §60, of a life interest rather than an outright payment in respect of the bulk of the money that was to come from the trust, reflected that this was not a straightforward ancillary relief situation.
- Did the order nonetheless breach the principles as set out in Ben Hashem? In my view, it did not.
- The trustees' complaints must be evaluated in the light of the terms of the trust and the practical realities of how it would operate. I would make a number of observations in this regard. First, it is material to note that, had she remained married to the husband, although not a beneficiary of the trust herself, the wife would have enjoyed the benefit of the trust property for life by virtue of her occupation of it with the husband as the family home. Unlikely as it might have been in practice, in theory she could even have been added by the trustees as a discretionary beneficiary of the trust and an appointment made in her favour. The judge's order could be said to build upon this foundation in that it enabled her (and the child whilst with her) to continue to be housed in accommodation purchased with the assistance of an appropriate proportion of the trust funds, the balance being left available for the husband's needs. Secondly, although the beneficiaries other than the husband and the children had the chance of benefiting from the power of appointment in clause 4 of the trust, this gave rise to no entitlement and they would, in any event, have been likely to have to wait for a long time before they could hope to benefit. The entire trust property was used to house the husband and wife during the marriage and, given a free hand, the trustees would use it now to house the husband and his new family, so the beneficiaries could expect nothing until the husband's death. In real life rather than legal theory, a life interest to the wife (who is of similar age to the husband) does not therefore prejudice them materially. Thirdly, it cannot be ignored that there were powers under the trust to transfer the property to the husband for his absolute use and benefit, thus depriving the other beneficiaries, and the husband's brother and his issue as remaindermen, of their chance of benefit. In the event that the husband chose to sell the property thereafter, it would be lost to the estate as well.
- To my mind, these points show that the detriment to third parties from the variation of the trust should not be overstated, and nor should the weight to be given to the settlor's intentions in setting up the trust. I do not think it can be said that innocent third parties have been inappropriately deprived of their rights under the settlement, nor do I consider that the settlement has been varied with an inappropriate disregard for the intentions of the settler or further than was necessary to make provision for the wife and the child (also a beneficiary) when with her. The route chosen by Mostyn J was the least intrusive available. The trust had no assets other than the farmhouse and, having no income, had no way in which to raise money against the property. Mostyn J did not fall into the trap of requiring new property to be introduced into the trust in order to fund the payment to the wife (see below for my discussion of the trustees' argument about improper reliance on the husband's family). His order was to be met from the assets of the trust and the trustees' complaint is, in reality, about the fact that there was no alternative way to satisfy the order here than a sale of the trust property.
- It is right to say that Mostyn J took into account that the property had been the parties' home for a long time and he appears to have thought that by virtue of this it had some claim to be treated as matrimonial property, despite the fact that it had come from the husband's family and was held in trust. However, in the course of his discussion of the point, he expressly acknowledged (§54) that the trust property was not the product of the parties' endeavours, except to the extent that they had contributed to the improvement of it. In any event, whatever the merits of an attack upon Mostyn J's use of sharing principles (about which I do not express a concluded view), his order was supported by the parallel, and in my view much more important, reasoning based upon need. If confirmation of the importance of this strand of reasoning were to be needed, it is present in the second judgment from which it can be seen that Mostyn J had had clearly in mind, in formulating his order, the objective of enabling "[the wife] to be housed properly with [her child] for the periods when [the child] is with her" (§14).
Reliance on the husband's family
- Mr Dew complained that there was no evidence to justify the judge proceeding on the basis that the husband's family would make sums available so that the farmhouse did not have to be sold and that he wrongly relied upon them to meet the order or put pressure on them to do so.
- The first thing to observe is that there were a number of facts which were not in dispute and which at the very least justified the judge giving the family the chance to avoid the sale. They included the early gift of the derelict property to the husband and wife and the later provision of the farmhouse for life, the provision of alternative accommodation for the husband and his new partner after the breakdown of the marriage, the transfer of a farm of significant value to the husband's brother (whether or not unencumbered or realisable), and the existence of family enterprises in which the husband worked.
- Secondly, and more fundamentally, the judge did not require the family to put up the money, he merely gave them the option to do so, recognising that they may not do so and the farmhouse may have to be sold.
- In my view, the judge's approach was therefore faithful to the principles set out in Thomas v Thomas. He had regard to the potential availability of resources from elsewhere but I do not think it can even be said that his order was judicious encouragement to the family, let alone improper pressure. It simply provided a choice.
- In all the circumstances, I would therefore dismiss the appeal. I would also express my agreement with the judgment of Lord Justice Jackson, which I have seen in draft.
- I agree that this appeal should be dismissed for the reasons stated by Lady Justice Black.
- In the course of the appeal counsel asked the court to consider Mr Justice Mostyn's second judgment, in which he dealt with the question of permission to appeal: Re P  EWHC 2990 (Fam). The judge expressed displeasure that the appellants were (until the judge discovered what was going on) pursuing an application for permission directly to the Court of Appeal without reference to himself.
- The judge quoted the following passage from paragraph 52.3.4 of the notes to the White Book (2014 edition), which sets out five reasons why an appellant should, in the first instance, apply to the court below:
"(a) The judge below is fully seised of the matter and so the application will take minimal time. Indeed the judge may have already decided that the case raises questions fit for appeal.
(b) An application at this stage involves neither party in additional cost.
(c) No harm is done if the application fails. The litigant enjoys two bites at the cherry.
(d) If the application succeeds and the litigant subsequently decides to appeal, they avoid the expensive and time-consuming permission stage in the Appeal Court.
(e) No harm is done if the application succeeds but the litigant subsequently decides not to appeal."
- After referring to the nature of claims for financial remedy or ancillary relief, the judge said this at :
"It is therefore my clear view that in the future, in the field of ancillary relief at the very least, an application for permission to appeal must always be made to the judge at first instance before an approach is made to the Court of Appeal."
- Mr Dew says that paragraph  of Re P is being treated by the Family Bar as a mandatory direction that applications for permission to appeal must always be made in the first instance to the lower court. He submits that, although that was so under the old rules, it is no longer the case under the present form of CPR Part 52. See rule 52.3 (2) and Practice Direction 52A, paragraph 4.1. Mr Dew requests that we clarify the position in our judgments.
- I must confess at once that, when the earlier version of the rules was in force, I was the editor in the White Book team who was responsible for Part 52. Indeed I am the author of the note in paragraph 52.3.4, which has appeared in successive editions of the White Book and which the judge has quoted.
- In my view, even under the current rules, it is still good practice for any party contemplating an appeal in the first instance to seek permission from the lower court. Ideally the party should do so when the judge delivers or hands down judgment. This is for the five reasons set out in paragraph 52.3.4 of the White Book commentary.
- On the other hand there is no longer a rule requiring the appellant to apply to the lower court for permission. Therefore the need to apply to the court below is no longer a mandatory requirement, merely a matter of good practice.
- These observations apply both to family cases and to civil litigation generally.
Sir David Keene:
- I agree with both judgments.
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