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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Westbury v Sampson [2001] EWCA Civ 407 (23 March 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/407.html Cite as: [2002] 1 FLR 166, [2001] 2 FCR 210, [2002] Fam Law 15, [2001] EWCA Civ 407 |
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1996 W 139 |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE GRAHAM JONES
(sitting as a High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SEDLEY
and
MR JUSTICE BODEY
____________________
Rodney Alec John WESTBURY | Appellant |
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| - and - |
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John Richard SAMPSON | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
J. Cohen Q.C. (instructed by Messrs Blake Lapthorn for the Respondent)
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR. JUSTICE BODEY :
variability
of a lump sum order by instalments.
valuable
property "The Manor House" and also ran an antiques business together.
various
financial issues arising.
Various
other matters were covered and the entire package was expressed as a "clean break".
value
of "The Manor House" was taken as being about £275,000 which, after
various
deductions for the mortgage and so on was reduced to an anticipated equity of about £118,000.
view
to buying into "The Manor House" and living there with the wife. That was in fact the main way in which the wife was expected to have been able to come by a capital sum to assist her in paying out the claimant .
vary
the consent order but later, for some reason which is unclear, withdrew it. Certainly the Judgement below mentions negotiations going on during 1993, with the aim of redefining the Wife's financial obligation to the Claimant, so that may have had something to do with her holding back from further recourse to the Court.
vary
it, those negotiations having come to nothing.
vary
the consent order, the claimant terminated his retainer with the Defendant - being of the
view
that Counsel briefed by the Defendant for that hearing had not fought his corner sufficiently strongly.
vary
the consent order was finally resolved by Judge Shawcross on 24th October, 1995 when he acceded to her application. He found the husband's presentation to be honest and reliable, but the wife's to be dishonest & unreliable as to her income from the antique business.
value
of "The Manor House" and by the overall reduction in the equity, made it just and necessary for the amount of the second instalment of the lump sum (£40,000) to be
varied
downwards. He did therefore so reduce the £40,000 namely to £25,000, of which the wife had already paid the first £2,500, leaving £22,500 still to be paid.
varying
the overall quantum of such an order would appear to be in some doubt; but in my judgement, the cases of Tilley
v
Tilley 1979 10 Fam Law 89 and Penrose
v
Penrose 1994 2 FLR 621 make it clear that the jurisdiction created by S31(1) MCA 1973 (below) not only empowers the Court to re-timetable / adjust the amounts of individual instalments, but also to
vary,
suspend or discharge the principal sum itself, provided always that this latter power is used particularly sparingly, given the importance of finality in matters of capital provision.
viz
£6,000 odd) were directed by the order of Judge Shawcross to be used to pay off the wife's liability to a builder who had been doing work at the house shortly before September 1990 and who had obtained a Charging Order over the house. The remainder of the net proceeds (ie £12,000 odd) were ordered to be paid to the Claimant. The final balance of the redefined lump sum due to the Claimant (i.e. £10,000 odd) was to be found & paid by the wife out of whatever resources she had and / or with the help of her family.
variation
application, by about £17,500 (being £42,5000 less £25,000). The Wife too was, incidentally, worse off having been expected to come away from the proceedings with about £75,500 worth of equity (£118,000 less £42,500 paid to the Claimant) and having in fact come away:- with £30,000 worth of business liabilities taken care of and with a (presumably) debt-free business of unknown
value;
but with no capital sum, and with an obligation to find the last £10,000 of the Claimant's redefined lump sum, as just mentioned.
variability
of lump sum orders payable by instalments under S.31 Matrimonial Causes Act 1973 – see below.
variability
of lump sum orders by instalments.
vary
or discharge [an order for the payment of a lump sum by instalments] or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended".
vary
any lump sum order worded as being payable by instalments.
variation,
so that the wife could not get out of her obligations.
variability
of such an order. The Claimant says that the Defendant, an experienced matrimonial Solicitor, well knew that he was anxious about finality and that if he (the Defendant) had only been aware of the
variability
point, then he (the Defendant) would have realised that he (the Claimant) could not have known about it, unless advised of its existence. However, the Defendant would have known that he would be meeting the Claimant at court the next day, when the whole question of settlement was going to be considered in detail with the help of experienced Counsel.
variability
point and would not have done so unless asked. If asked, she said that she would have advised that all orders are capable of being altered on appeal, for example in the event of an unforeseen change of circumstances.
variability]
to have been given, even if it was not sought? I do not think so. As I have already said, there was every reason to think that the order made by consent would be implemented without difficulty. There was ample equity in The Manor House. Everyone, including [the Claimant] expected that the £40,000 would be easily realised, I am satisfied. In all the circumstances advice as to
variation
of the order was not called for; and it was certainly not negligent in my judgment not to
volunteer
it."
variation
of the order.... an experienced Clerk was left with Counsel and Counsel was an experienced and competent family practitioner. Furthermore, it was not [the Defendant] but Counsel who drafted the consent order…..".
variation
application was sufficiently foreseeable; nor that the failure to give the advice in question was causative of loss.
variation
application by the wife was reasonably foreseeable, particularly given her track-record of alleged 'trickiness' and that such reasonably foreseeable loss which in fact occurred was caused by the Defendant's failure to be aware of and advise him about S31(1) of the Act.
valuation
of £275,000 used for the purposes of reaching the compromise.
vary
under that Section and an application for leave to appeal out of time. This is an argument which has considerable force.
vulnerable
to being upset by way of an application by the wife to the Court of Appeal for leave to appeal out of time.
v
Calouri 1988 AC 20, Lord Brandon of Oakbrook at p. 43A to E formulated these conditions as follows: "……A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision... provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, on which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or
very
likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case... [The] fourth condition is that the grant of leave to appeal out of time should not prejudice third-parties who have acquired, in good faith and for
valuable
consideration, interests in property which is the subject matter of the relevant order".
variation
applications under S31, on the other hand, there are no such preconditions. The only guidance as to the exercise of the power contained in S31(1) is to be found in S 31(7) whereby "... in exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare [of any child of the family] and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates..."
very
similar considerations ought in practice to be applied under S31 as those laid down in Barder, at any rate as regards
varying
the overall quantum of a lump sum order by instalments (as distinct from re-timing or 're-calibrating' the instalments).
very
significantly, and / or for cogent reasons rendering it quite unjust or impracticable to hold the payer to the overall quantum of the order originally made.
vulnerable
to the risk of being reopened - either by an application to
vary
or else by application for leave to appeal out of time - if the circumstances changed enough, if the justice of the case so required and if the wife moved reasonably promptly.
variation
application under S31 regarding an instalment order would (or might) have met with a rather more 'broad brush' approach than would (or might) have been applied by the Court of Appeal on an application for leave to appeal out of time against an order for a single lump sum. (There was however no reason to anticipate that any such application would be made, and good reason to think that it would not).
very
difficult to see circumstances in which the Court of Appeal would not grant leave to appeal out of time as regards an order for a single lump sum but in which the justice of the case would nevertheless justify a
variation
of the overall quantum of a lump sum by instalments. Comparable public policy considerations as mentioned above are relevant to each type of application if the overall quantum of a lump sum order by instalments is 'under attack'; and it would be logical and just for a similar approach to be applied regardless of the differing procedural routes involved.
very
case. However that presupposes that the wife would have been just as slow in getting to the Court of Appeal (had she needed to do so) as she was in mounting her application to
vary,
which – although this can only be speculative – would surely have been seen as most improbable, if the point had in fact been addressed on the 4th September 1990.
v Heard 1995 1 FLR 1970) and I am by no means persuaded, particularly if the wife here had applied more promptly to the Court of Appeal to seek leave, that the Court of Appeal would not have granted her application, given that the available resources had reduced or were reducing to such an extent that for a combination of reasons, she was (as found by Judge Shawcross) quite unable to pay the full amount which she had earlier agreed to pay, at a time when the anticipated circumstances were wholly different from the circumstances as they in fact turned out.
LORD JUSTICE SEDLEY: I agree.
LORD JUSTICE SCHIEMANN: I also agree.