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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Vaughan v Vaughan [2007] EWCA Civ 1085 (02 November 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/1085.html Cite as: [2008] 1 FLR 1108, [2007] EWCA Civ 1085 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
H.H. JUDGE CORRIE
LOWER COURT NO: OX06D00101
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MUMMERY
and
LORD JUSTICE WILSON
____________________
PHILIP HOWELL VAUGHAN |
Appellant |
|
- and - |
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LUCIENNE ELIZABETH VAUGHAN |
Respondent |
____________________
Miss A. Ward (instructed by Wilsons, Salisbury) appeared on behalf of the Respondent "wife".
Hearing date: 9 August 2007.
____________________
Crown Copyright ©
Lord Justice Wilson:
SECTION A: INTRODUCTION
SECTION B: THE BACKGROUND FACTS
SECTION C: THE FINDINGS AND CONCLUSIONS OF THE DISTRICT JUDGE
"a spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably."
The only obvious caveats are that a notional re-attribution has to be conducted very cautiously, by reference only to clear evidence of dissipation (in which there is a wanton element) and that the fiction does not extend to treatment of the sums re-attributed to a spouse as cash which he can deploy in meeting his needs, for example in the purchase of accommodation. At all events the district judge's failure to despatch the issue by reference to the relevant legal principle in my view conferred upon the circuit judge an entitlement, at any rate in principle, to despatch it differently.
"… the prospect of his return to paid employment in the near future is limited. His job is as a commercial pilot and I cannot conceive of a situation where he would be fit for flying. For instance, I certainly wouldn't want him flying me anywhere. In my opinion, in fact, I would regard him as being a significant danger as a pilot not because of his potential for deliberately crashing a plane, but because of his poor concentration, his preoccupation with his difficulties and his simple attitude towards his overall difficulties. In my opinion, he is simply not fit to fly in any capacity whatsoever."
W | H | Total | |
£000 | £000 | £000 | |
Proceeds of home | 425 | 160 | 585 |
B.A. lump sum | Nil | 164 | 164 |
Liquid capital | 54 | Nil | 54 |
Total | 479 (60%) | 324 (40%) | 803 (100%) |
W | H | Total | |
£000 | £000 | £000 | |
Total | 479 | 324 | 803 |
H's pension rights | 32 | 127 | 159 |
W's pension rights | 15 | Nil | 15 |
Grand Total | 526 (54%) | 451 (46%) | 977 (100%) |
W | H | Total | |
£000 | £000 | £000 | |
Grand Total | 526 | 451 | 977 |
W's outstanding costs | (21) | (15) | (36) |
H's outstanding costs | Nil | (22) | (22) |
Net of Costs | 505 (55%) | 414 (45%) | 919 (100%) |
SECTION D: THE FINDINGS AND CONCLUSIONS OF THE CIRCUIT JUDGE
"… the simple fact [is] that the husband dissipated, without any explanation that satisfied the district judge, sums of between £100,000 and £175,000 … [W]hatever the mitigation, and irrespective of the district judge's finding that this was all part and parcel of his mental illness at the time, it remains a fact and it seems to me that the district judge was wrong in not reflecting that fact in some way."
No doubt there are cases in which the mental incapacity of the dissipating spouse is such as to render re-attribution unfair; but I agree with the circuit judge that the husband's problems were not of that severity. Unfortunately, however, the circuit judge omitted to survey, in terms of percentages of capital, the effect either of the district judge's order in the light of the fresh evidence which he received or of his own proposed substitute order in that light; and the result of his omission was that he never found it necessary to identify the sum to be re-attributed to the husband by reason of dissipation. In that re-attribution has to be conducted very cautiously and in that, following more detailed argument than we have received, the circuit judge identified the parameters of the total sum dissipated by the husband as being between £100,000 and £175,000, I propose in my calculations to adopt the minimum figure.
"[The husband] will not be fit to return to flying duties by the 8 February 2007. I cannot predict with absolute confidence a return to flying before the 8 August 2007, but there is scope to re-evaluate his progress in early January.
…
If recovery continues, it will be advisable as part of a rehabilitation plan, for [the husband] in the Spring to trial A4 ground duties to prove his fitness to resume flying.
…
Given the guarded expectation of recovery, this case does not currently satisfy the criteria for an ill-health pension."
"After a 19 month absence with a medical condition, that is protected by the [Disability Discrimination Act], there is now emerging evidence of substantial improvement. His recovery is not yet complete and the main risk to the rehabilitation plan is a setback, although this is considered unlikely providing his legal difficulties conclude as hoped. There is now a realistic prospect of a return to flying duties before the 8th August 2007. This view is supported by both his Consultant and the [Civil Aviation Authority] and welcomed by the pilot.
[The husband] is fully aware that CAA recertification depends entirely upon a full unequivocal completion of his recovery and the need for satisfactory CAA assessment 2 months after stopping medication. I agree that the end of his divorce proceedings (now rescheduled for the 3rd April) should be enormously beneficial as it is then planned to gradually discontinue his medication (over two months) under the supervision of his Consultant.
If you proceed to terminate on the 7th March, [the husband] does not meet the criteria for an ill-health pension as his health has substantially improved and there is every prospect of a full recovery and recertification by August 2007. The CAA, following discussion, have not made him long term unfit.
… [A]t some future stage a brief trial of ground duties prior to restoration of his licence would be advisable in order to reintegrate to work and help the relicencing process. A trial is not currently considered appropriate while still on treatment and given the small degree of vulnerability surrounding the finality of court proceedings."
(a) the district judge's failure to re-attribute to the husband any of the money which he had dissipated;
(b) the fresh evidence about the increase, albeit unspecified, in the value of the home; and
(c) the fresh evidence about the husband's future with B.A.
"Taking those three factors together," said the circuit judge, "I have to ask myself whether there should be some adjustment to reflect the loss of the chance, quite a substantial chance, of future maintenance, in return for the clean break which is not contested, and the fact that the wife has been deprived of the opportunity of benefiting from the money so extravagantly and inexplicably spent in such a short period by the husband while he was ill." In relation to the loss of the chance of future maintenance, the judge observed that, if the realistic prospect of the husband's return to flying at a salary of £80,000 to £100,000 p.a. were to materialise, the wife, if earning only £26,000 p.a., would have had a significant entitlement.
SECTION E: THE FURTHER EVIDENCE BEFORE THIS COURT
SECTION F: ARGUMENTS AND CONCLUSION
"That will not be paid if he goes back to flying, but if he goes back to flying he would be very much better off."
Later he said:
"If he resumes flying duties, he will have a very substantial mortgage capacity … or …, if it all goes wrong and he cannot fly again …, he will get … £164,000 … So he is able either way to house himself and in the more fortunate alternative at a rather better level than allowed for by the district judge."
W | H | Total | |
£000 | £000 | £000 | |
First 585 of home proceeds | 425 | 160 | 585 |
Balance of home proceeds | 129 | 129 | 258 |
Liquid capital | 54 | Nil | 54 |
Sum dissipated | Nil | 100 | 100 |
W's outstanding costs | (21) | (15) | (36) |
H's outstanding costs | Nil | (22) | (22) |
Total | 587 (62%) | 352 (37%) | 939 (100%) |
H's pension rights | 32 | 127 | 159 |
W's pension rights | 15 | Nil | 15 |
Grand Total | 634 (57%) | 479 (43%) | 1113 (100%) |
Lord Justice Mummery:
Lord Justice Ward: