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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> X v Y [2025] EWHC 727 (Fam) (11 March 2025) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2025/727.html Cite as: [2025] EWHC 727 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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X |
Applicant |
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- and – |
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Y |
Respondent |
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Katharine Bundell (instructed by Buckles Solicitors LLP) for the Respondent
Hearing dates: 7 March 2025
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Crown Copyright ©
MR JUSTICE TROWELL :
The Background
The Law
An appeal against an exercise of discretion will succeed if the decision-maker has failed to take into account relevant matters, or has regard to irrelevant factors; or reached a decision that is plainly irrational. Otherwise, the review by an appellate court is 'at its most benign'. Even if the appeal court disagrees with the discretionary decision it cannot interfere.
From these cases, I discern the following principles in particular:
a. There is no doubt that the court is able to reverse/alter its decision at any time prior to the order being perfected;
b. For the power to be exercised does not require 'exceptional' circumstances;
c. That where the request is made on the basis of new evidence that was not before the court first time round, there needs to be good reason (in which there is a "due diligence" requirement) to depart from the finality principle (AR -v- MR);
d. The 'finality principle' is of considerable importance in financial remedies cases (not least given the costs involved) and also, in particular, after a judgment given at a final hearing;
e. The issue should be approached from the perspective (or "through the prism") of the Overriding Objective;
f. A judge considering such an application should not start "from anything like neutrality or evenly-balanced scales…the question is whether the factors favouring re-opening of the order are, in combination, sufficient to overcome the deadweight of the finality principle…together with any other factors pointing towards leaving the original order in place" (AIC Ltd).
Application of the law
a. It is obviously unfair in a needs case for the wife to take a lesser share in the proceeds of sale of the matrimonial home than the husband where, as here, the husband has just received a substantial inheritance.
b. Notwithstanding the way in which the husband's father's will is set up the court can expect the family will find a way to enable him to benefit from the inheritance.
c. The court has fallen into procedural error by not allowing the wife to challenge the husband's route to obtain a benefit from his inheritance.
a. Non-disclosure: he concludes that his finding of an 'absence of undisclosed assets' is strengthened by the new material. The new material refers to the husband as being in need and contains an email from his father requiring the executors to 'be very careful to have full control of [the husband's] portion of my will. Making sure that he cannot blow the money like he has done with Mama's and the proceeds of the sale of his house'. (That, I record, is an earlier property, not the matrimonial home.)
b. The asserted willingness of the husband's family to step in and help him: he concludes the new material does not support that. It shows relations were 'somewhat strained' and there is no 'unlimited munificence' as asserted by the wife.
c. The husband's knowledge of his inheritance prospects: the judge concludes it is not possible to develop those findings that he had previously made in any way and says that he dealt with 'the case on the basis that it was more likely than not that H would receive (or have to look to obtain) family assistance in due course given the scale of his indebtedness and his need for housing'.
35. The judge then turns to consider the change to the financial circumstance of the husband flowing from his inheritance at paragraph 41. The judge reasons as follows, and I comment in italics:
a. The husband is not likely to receive anything at all this year. That is in 2024.
b. He will receive around £43,500 from his father's nil rate tax band. This figure is dependent on other gifts made by his father and furniture in which the husband will have an interest but his stepmother will retain. It is a reasonable estimate. It is possible that it was received earlier than the judge estimated because probate was granted faster, but his estimate as to time was reasonable on the information before him. In any event this sum is consumed by the husband's outstanding costs, especially those from the Barrell application which despite winning he did not receive given he would have this extra money. Its early receipt will make no difference to this decision.
c. Beyond this, the judge says, the picture is uncertain. The figures are in a wide range from nothing to several hundred thousand pounds. This is subject to probate, where the H's stepmother is going to live, and there being no challenge to H's father's will. The husband's inheritance was by way of a will trust, as to 25% with his siblings, and subject to a life interest in the assets by his stepmother. There is a possibility of the stepmother's daughter (by a different relationship) buying out the father's estate's interest in the property the father had with stepmother, but there was also the problem that the running of the property would substantially reduce the other assets. There was to be borne in mind the substantial other assets of the stepmother which might have lightened the load.
d. As and when H does receive funds, it appears clear that they are to be put in trust. This is a reasonable assessment in the light of the information disclosed, including the emails from the father and the letter of wishes.
a. The judge recorded that there had already been substantial cross examination on the subject of family support.
b. The judge recorded that he had in the original decision already factored in support from his father being available to the husband.
c. The judge had expressed horror as to the level of costs already expended in his original decision, a further enquiry would cost more.
d. The judge worked for the purposes of the Barrell decision on the information from the probate lawyers, one of whom would be a trustee. In circumstances where there had been a trial already it was a matter for the judge whether he considered it appropriate to open up matters again for further enquiry, including (probably) the cross examination of that lawyer.
Ground 1
The only additional point to deal with here is the argument that the judge placed great weight on the belief probate would take a significant period of time to be granted. He did, think it would take longer than it did, but that was not a point on which great weight was placed. It was a factor which he considered would slow down the first payment.
Ground 2
The judge did not name interim trust payments as a way the husband might have received money, but that was one of the points that would have been considered on the re-opening which he considered and rejected.
Ground 3
The judge did not expressly consider a partial reconsideration, but that could only arise by a reopening of the decision. Either he holds to his original decision, or he changes it. Child maintenance (including applications for school fees) does of course remain open regardless of this decision.
Ground 4
The judge did not apply an 'exceptional' threshold.
Ground 5
The judge it is said misinterpreted findings as to the husband's credibility and financial situation. He did not. He did trust what the probate solicitors told him but that is not a reason to allow this appeal.
Ground 6
The 'late; disclosure of the estate summary and financial disclosure did not give rise to procedural irregularity. The disclosure was before the submissions from wife's counsel and there was no request for more time. Indeed, there was an agreement that the judge could deal with the matter on paper.
Conclusion
a. Allow the application to be brought out of time;
b. Allow permission to bring the appeal;
c. Dismiss the appeal.
Mr Justice Trowell
14 March 2025