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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thomas v Thomas [2002] EWCA Civ 1404 (11 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1404.html Cite as: [2002] EWCA Civ 1404

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(HIS HONOUR JUDGE CURL)

		Royal Courts of Justice Strand London WC2 Wednesday, 11th September 2002

1. LORD JUSTICE WARD: There are three matters before me today. First in point of time is an application for permission to appeal against the order of His Honour Judge Curl, made on 30th July 2001. The order made on that occasion was to dismiss the husband's appeal against the order of the district judge, which had been made on 22nd November 2000. The second application is to seek permission to appeal the order made by His Honour Judge Curl on 12th April 2002 when he dismissed the husband's application for a rehearing of the ancillary relief proceedings under order 37 Rule 1 of the County Court Rules. The third application is an application to admit in the appeal against Judge Curl's July 2001 appeal fresh evidence of the fact that the wife has since inherited a substantial sum of money.
2. I deal with the application relating to the order 37 proceedings first. The background, in a nutshell, is really this. Following the breakdown of this long marriage the parties entered into a separation agreement. Its terms were partly, and relevantly for today, that the husband would pay the wife £100 a week until various events occurred, one of which was the sale of the former matrimonial home. The second main provision of the separation agreement was that the wife would be paid £60,000 by way of a lump sum in full settlement of her claims for ancillary relief.
3. She applied to set that agreement aside. On 22nd November 2000 District Judge Hayes did so. The district judge then went on to deal with the ancillary relief application which was before him. In very rough and ready terms he found that the total assets of the parties at their house were in the order of about £440,000, and the effect of the order he made was that the wife should receive about £128,750 of that pot, which was just under 60 per cent of the cash available. In addition she would keep her pension fund which had a value of £36,630. The order left the husband with about £87,620 of the cash available but he retained his pension fund which was worth £161,500-odd. The district judge did not, as I read his judgment, fall into the error of equating those pension funds as liquid cash, but when he took them into account he concluded that the division was approximately 37.5 to the wife and the balance to the husband. The husband appealed that order and it was dismissed, as I have said, by Judge Curl on 30th July 2001. I will return to that judgment later.
4. The important event which then happened is that on 20th October 2001 the wife's father died, aged 76 years. He was known to suffer from a heart condition, was known to have been receiving a good deal of care from his daughter (the wife) and was known to be a wealthy man whose net estate appears to have been about £1.3m. It transpires that the wife is a beneficiary of his estate and will receive a sum not less than £150,000, but possibly double that. The figures are not totally clear to me at the moment.
5. Immediately the husband learnt of his former father-in-law's death he inquired of the wife's inheritance and having received some information about it brought his proceedings under order 37 for a rehearing of the ancillary relief proceedings, there being no error of the court.
6. The issue in a nutshell on that occasion was whether the wife had failed to disclose in the ancillary relief proceedings that she had as a resource which might become available to her in the reasonably foreseeable future that inheritance. I have not seen exactly what was said. The husband filed an affidavit in which he referred to his former father-in-law, and at the hearing before District Judge Hayes there was apparently cross-examination by counsel for the husband of those matters, and it was an issue before the court. It was, however, not submitted before District Judge Hayes that the prospect of inheritance was a financial resource which would become available in the reasonably foreseeable future.
7. Judge Curl, having directed himself to authorities such as Michael v Michael [1986] 2 FLR 389 which drew the distinction between resources likely to become available in the foreseeable future and a mere expectancy or hope of succession and the limited occasions when a prospect of inheritance might be of that character, the judge held that, given the evidence that was before the district judge that father was reasonably well at the time and had not seen a doctor for three months, that there was no evidence that the wife knew of the terms of the inheritance, and that there was no suggestion that the money was likely to be available in the foreseeable future, the judge concluded that the wife had not failed to give material disclosure of relevant facts. I have to say that I agree with that analysis. The material was available to the district judge and was not pursued, rightly in my judgment, as an available resource. In those circumstances it seems to me the judge was fully justified to conclude that there was no non-disclosure and accordingly no grant for setting aside the orders made in the ancillary relief proceedings on that basis.
8. I would therefore dismiss that application.
9. That leads me to the appeal against Judge Curl's order on the appeal from District Judge Hayes' order for ancillary relief. Here, in my judgment, the husband faces the difficulty that it is a second appeal. I reject Mr Berry's submission that because the county court judge exercised a fresh discretion that it does not have the character of a second appeal for the purposes of Civil Procedure Rules. That, in my judgment, is plainly wrong. There was a judgment by the district judge. There was an appeal to the circuit judge and the appeal from the circuit judge to this court is a second appeal for the purposes of CPR 52 with the consequence that permission is not to be given unless there is some important point of practice or principle, or other compelling reason to allow the matter to go further.
10. As originally constituted the main grounds of challenge to Judge Curl's approach related to essentially these matters. One was the value to be placed upon a shareholding the husband would become entitled to. I put it that way because he had inherited the shares in this business from his mother; there were apparently a thousand of them. But there were three beneficiaries, and, typically in this family (which seems to be unable to agree that today is Tuesday) they could not agree between them who should have the extra share, so that one would have 334 shares, and the other two would have only 333 shares each. So the shares were not actually in the husband's name, but it was an available resource and there was some evidence before the district judge as to the value of those shares to which he ascribed a value of £14,400-odd as I read the note.
11. The challenge to that finding is that the district judge, and in his turn the county court judge, failed to have regard to certain other factors therefore made a wrong assessment.
12. The second resource was the value of land at Heacham where again there was a challenge to the valuation of an undivided share in that particular property.
13. Third, was a complaint that the court should have brought back into account the value of a Mercedes motorcar given to the wife as a wedding anniversary present, and therefore some £16,000, one way or another, should be brought back into account. Then there was the so-called sprat to catch the mackerel, being the £100 a week the husband had been paying the wife under the separation agreement. The argument was that because the agreement was set aside there should be restitution in full, and therefore £39,000, which was the gross amount of the £100 a week, should be brought back into account.
14. Finally, there was a challenge as to the husband's use of the former matrimonial home. It seems to me that on each of those grounds the husband faces two insuperable difficulties. The first is that insofar as the judges made valuations they did so on the basis of some evidence that was before them; it is not a question of there being no evidence, there was something upon which they could make their findings, which are always difficult findings of valuation, and this court is not likely to interfere with findings of fact of that kind unless there has been grievous error obviously demonstrable. They may have been overgenerous to the wife but they are not outside the generous ambit within which different views may be taken.
15. The second insuperable difficulty is that none of those factors seem to me to give rise to important points of practice or principle. Given that this litigation has already cost the parties £120,000 when the available resources were only £440,000, I would not, for my part, allow any further litigation to eat into the assets of this family and I would not give permission to appeal on any of those grounds.
16. That leaves, however, the application to adduce the fresh evidence. The analysis seems to me to be this. The judge was correct to hold that there was no non-disclosure of the prospect of an inheritance, and right to hold that at the time the matter was before District Judge Hayes that prospect of inheritance should not have been treated as a resource likely to become available in the foreseeable future. It would not have been different, in my judgment, at the time of the appeal before the county court judge, some eight months later. But the fact now is that the expectation has crystalised and a substantial sum of money has been received, or will be received by the wife after an event which occurred just under three months after the final disposal of these proceedings before Judge Curl. The argument for the husband is thus that on Barder v Barder principles the receipt of that money is sufficiently substantial as to falsify to a fundamental assumption on which the order was based. The fundamental assumptions are, I take it for the purpose of reciting the argument, the value of the resources properly available. In his judgment on this matter Judge Curl in dealing with the order 37 application relied on dicta of Hale J (as she then was) that the event had to be unforeseen and unforeseeable, and that the inheritance following the death of her father was neither of those. That is a point which I do not believe has been fully considered by this court and may need to be considered.
17. The second point is that on Barder principles the event must have occurred within a short time of the judgment. The question is, therefore, which judgment: that of the district judge, in which event it is unlikely to satisfy the Barder requirement, or Judge Curl's judgment, in which event arguably it may? Mr Berry, who appears on the husband's behalf, submits that because the county court judge exercised a fresh discretion in judging the appeal the order is truly an order of his and that it might have been different - although I do not know if Mr Berry goes so far as to make that concession - if he had been simply reviewing District Judge Hayes' judgment of November 2000. Those short points are ones which perhaps could give rise to an important point of principle in the application of Barder v Barder which may, therefore, justify the second appeal. I am far from satisfied at the moment that Mr Berry is correct, but I am equally not satisfied that he is necessarily so wrong that the matter has no reasonable prospect of success.
18. In the result I will adjourn the application to appeal Judge Curl's order of 22nd November to be heard on notice to the wife on the two limited points relative to the application of Barder, namely the extent to which under Lord Brandon's first requirement this is properly a new event; and secondly, relative to which order, district judge or county court judge, one must judge the proximity of that new event. I confess I do so with considerable reluctance because I am deeply troubled that this litigation has gone on far too long and that we are in danger of undermining an important other principle that there has to be some finality in this process.
19. Almost as a cri de cor I add the postscript in the form of a question. Is it too much to expect of these parties that this question might be the subject of some mediation between them? If they wish the assistance of the court in that mediation the court is happy to endeavour to provide it. It would be preferable to a further extravagant waste of costs. Thus, my order is that that matter is to be listed on notice with a time estimate of an hour and a half. It should be listed before two members of this court (preferably not myself) but one with family experience, and another a Lord Justice of Appeal.
(Application granted; costs to be costs in the application).