Case No: B4/2009/2354

Neutral Citation Number: [2010] EWCA Civ 125
IN THE SENIOUR COURTS OF ENGLAND & WALES
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, 
FAMILY DIVISION, PRINCIPAL REGISTRY
(MR JUSTICE MOYLAN)
(LOWER COURT No: FD07D05911)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 15th January 2010

Before:

LORD JUSTICE WILSON
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Between:

	K	
Applicant	
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L	

Respondent	

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(DAR Transcript of 
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Miss Alison Ball QC (instructed by Messrs Farrell Matthews and Weir) appeared on behalf of the Applicant “husband”.

The Respondent “wife” did not appear and was not represented.

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Judgment

Lord Justice Wilson:

1.	Appeals and collateral applications are in principle heard in public in this court.  But gentlemen of the press who listen to this judgment will, I think, understand why yesterday I made an order for the anonymity of the parties and for non-disclosure of any material, such as addresses, which might lead to their public identification; for at the heart of the problems in this case lie two children who have been sexually abused and it would be very important for them that their identities be never publicised.

2.	A husband, as it will be convenient to call him notwithstanding the grant of a decree absolute of divorce, applies by Miss Ball QC, who has not previously represented him, for permission to appeal -- and for an extension of time for appealing -- against an order on his application for ancillary relief against the wife, as it will be convenient to call her, made by Mr Justice Moylan, sitting in the High Court, Family Division, on 4 June 2009.  It follows that the husband’s appellant’s notice should have been filed by 25 June 2009.  In fact, then appearing in person, the husband filed it only on 29 September 2009 and so it is more than three months out of time.  The husband is detained in Wandsworth prison and he puts forward reasons for the delay which in my view render the despatch of his application for an extension borderline. Nevertheless it seems convenient to put to one side his need for an extension of time and to concentrate on whether he should be granted substantive permission to appeal.  For any grant of permission would probably tip the balance in favour of granting the extension.  Conversely, were permission not granted, the issue of an extension would be academic.

3.	The circumstances of the present case are, I am happy to say, extremely rare.  But their extreme rarity is of no comfort whatever to the wife and her three children by a former marriage and is of no assistance whatever to the children of two of her children.  Although other features weighed heavily in the judge’s determination, the stark feature of the case is reflected in the circumstances which lead the husband, now aged 65, to be in prison.  For in 2007 he pleaded guilty to 15 counts of sexually assaulting two of the wife’s grandchildren on a number of occasions between 2004 and 2007, of taking indecent photographs of one of them and of related offences.  He was sentenced to a minimum of three years’ imprisonment and hopes to obtain parole later this year.  The judge did not accept the husband’s assertion that in fact he was guilty of sexual abuse only of one of the grandchildren and that in relation to the other he had for various reasons pleaded guilty to a charge of which he was not guilty.  The historical facts are that: 
(a) the wife was born in 1938 and is now aged 71; 
(b) the parties married in 1983 ;
(c) for the wife it was a second marriage; at that time the three children of her      first marriage were all minors and they became children of the family; 
(d) these three children all now have children of their own; 
(e) the wife’s father, who died shortly after the marriage, had given her substantial assets during his life and left her further substantial assets by will; 
(f) it was the wealth received by the wife from her father which funded the comfortable lifestyle of the family and enabled the husband to relinquish paid employment at around the time of the marriage and thereafter to pursue -- in England and also to some extent abroad -- literary and artistic interests of an essentially unremunerative kind; 
(g) at the time of the marriage or subsequently the wife transferred into their joint names their valuable home in London which she had acquired with money received from her father; 
(h) in 1987 the parties purchased in their joint names a small property abroad; 
(i) in 1993 there was a separation between them, followed by a reconciliation made pursuant to conditions which the wife demanded and to which, following the receipt of legal advice, the husband subscribed: the agreement was not only that he would transfer his interest in the home in London back to the wife but also that he thereby reiterated his previous assurance to her that, were they again to separate, he would not seek to take advantage of the fact that her wealth was far greater than his; 
(j) the husband duly joined in transferring title to the home back into the sole name of the wife; and 
(k) the husband’s sexual abuse of his two step-granddaughters was discovered in 2007, whereupon of course the separation between the parties took place, swiftly followed by the husband’s conviction and imprisonment.

4.	The wife alleged that the husband had been guilty of other gravely wrongful sexual acts in relation to her grandchildren in addition to those for which he had been convicted; and indeed that he had so acted in relation also to other children. In that regard much of her evidence came from material discovered by the police in the husband’s computer.  For example the husband had, in chat room logs, been communicating over the internet with other paedophiles and purporting to describe his sexual abuse not only of the two grandchildren but of other children including children abroad.  It was the husband’s case before the judge that much, if not most, of the content of his communications was no more than disgusting fantasy into which he had been drawn.  The judge was careful not to make findings against him in this regard across the board.  He did, however, find that the husband had sent to another person via the internet sexual photographs of the two grandchildren whom he had abused, accompanied by disclosure of their first names.  The judge also made a finding against the husband in relation to an incident which one of the wife’s daughters had raised in her written statement.  For some reason the judge declined in his judgment to spell out the daughter’s allegation, other than to say that it had occurred in Paris, when -- perhaps as a young woman? -- she had gone into the husband’s bedroom one morning.  The husband denied the incident but the judge found that it had occurred.  The daughter’s statement has not been included in the papers filed for my use but Miss Ball tells me that in essence the daughter’s allegation was that the husband had touched her breast.  It is clear that the judge considered it serious enough to be taken into account together with the gross misconduct towards the granddaughters which had largely been the subject of the criminal proceedings.

5.	The hearing before the judge proceeded for about seven days in May and June 2009.  Oral evidence was given by the wife, by the two daughters whose children the husband had abused, and by the husband himself.  Unable by then to tolerate the husband’s presence in the same room with her, the wife gave her oral evidence by video-link.  The judge found that she was a sincere witness who had been deeply traumatised by the consequences of the husband’s conduct.  She said that the husband had taken advantage of her marriage to him in order to benefit from her wealth and in particular to prey upon her children and subsequently upon her grandchildren; that the husband had betrayed her in a sickening manner; that she was struggling to come to terms with the dreadful damage which he had inflicted upon her granddaughters, the precise extent of which might not be visible for many years; and that she bitterly regretted her decision to reconcile with him in 1993.  In their evidence the two daughters expressed their devastation at the injury done to their own daughters by their step-father and explained how many of the family relationships had been fractured or infected by what he had done.  The husband, both in writing and orally, sought to stress horror and disgust at his misconduct towards the family and to chart how a terrible addiction for paedophile material and experience had taken a grip of him.  It is clear, however, that the judge did not accept all that the husband said.  The judge stated that he considered the husband to be manipulative and that he formed the clear impression that he was not being wholly truthful.

6.	The judge found that the wife’s wealth, largely represented by the home in London, amounted to about £4,300,000.  He found that the husband’s assets comprised only his half interest in the property abroad, such half interest being worth about £90,000.  The judge also found, however, that the husband was likely, within the foreseeable future, to inherit funds from his mother who, so Miss Ball tells me, is aged 94.  In that regard the husband had alleged that, although he had expected to inherit about one third of his mother’s estate, such a share amounting to no more than £100,000, he believed that his mother was on the point of entering a care home, as a result of which her resources would dwindle, and that, in the light also of her intention to make increased provision for his sister and her children by will, he no longer expected to inherit any significant sum from her.  But the husband’s sister made a statement, presumably on behalf of the wife, in which she rebutted what he had said and indeed averred that he was likely to inherit not one third but one half of their mother’s substantial estate.  Such was the evidence which the judge accepted; and in my view Miss Ball cannot successfully dislodge his preference for it.

7.	At the outset of the hearing before the judge leading counsel for the wife submitted that, in return for the transfer by the husband to the wife of his interest in the property abroad, she should pay him a lump sum of £100,000, ie fractionally more than its apparent value, but that otherwise there should be a clean break between the parties without any further transfer or payment by the wife to the husband.  Leading counsel for the husband submitted, by contrast, that, in addition to the £100,000 payable to him in consideration of relinquishment of his interest in the property abroad, the husband should receive from the wife £400,000, making a total lump sum payment of £500,000.  Counsel for the husband accepted that on any view the judge was fully entitled -- in effect bound -- to have regard to the husband’s misconduct towards the grandchildren, the children and the wife, in that it would be “inequitable to disregard it” within the meaning of s.25(2)(g) of the Matrimonial Causes Act 1973.  His submission, however, was that, in the light of the husband’s exiguous resources and the scale of the wife’s wealth, she should pay him a total lump sum of £500,000 in order to serve his “needs”, in particular his need, following release from prison, for accommodation and for a small maintenance fund in order to raise his income somewhat above the minimal level of the state retirement pension to which the husband was entitled.  In this regard it was accepted that his prospect of being able again to earn any significant sum was remote.

8.	The judge’s ultimate order was in accordance with the submissions made on behalf of the wife.  He ordered the husband to transfer to the wife his interest in the property abroad and, in respect thereof, he ordered her to pay him a lump sum of £100,000.  He duly imposed a clean break between the parties.  

9.	The judge then turned to consider an application for costs made by the wife against the husband.  The judge was told that the wife’s costs, all of which she had already paid, amounted to about £250,000; and that the husband’s costs, incurred under a public funding certificate issued on what had been intended to be the first day of the hearing, had been limited to £20,000, albeit possibly exclusive of VAT, and that in principle his liability to reimburse the Legal Services Commission in that sum would be secured by a charge upon the £100,000 which had been awarded to him.  It was the judge’s order that the husband should pay a contribution to the wife’s costs in the sum of £50,000, inclusive of VAT, and that his liability should be set against the wife’s liability to pay him the lump sum of £100,000.  The judge reminded himself that, pursuant to subparagraph (a) of rule 2.71(4) of the Family Proceedings Rules 1991, the general rule in ancillary relief proceedings is that the court will not order one party to pay the costs of another but that, pursuant to subparagraph (b), the court may so order if appropriate to do so in the light of a party’s conduct “in relation to the proceedings”.  The judge also reminded himself of the content of paragraph (5) of the rule, by which, when deciding whether to make an order for costs, the court is required to have regard to specified matters referable in effect to the conduct of the parties in relation to the proceedings.  In concluding that the husband should make the contribution to which I have referred, the judge reminded himself that:
a) prior to the start of the hearing the husband had made no proposal for settlement of his claim; 
b) even at that stage he had articulated a claim which was grossly in excess of what the judge had ultimately concluded to represent its proper size; 
c) by contrast, the wife, albeit again at the start of the hearing, had made a reasonable proposal to the husband, in line with the ultimate award, which, had it been accepted, would have saved the wife from incurring very considerable further costs; 
d) the husband had contested a number of the wife’s factual allegations in circumstances in which it had been unreasonable for him to do so; and 
e) generally the husband bore a far greater responsibility than did the wife for the continuation of the proceedings.  

10.	It was implicit in the judge’s judgment referable to costs that he considered that, in the circumstances, it would be offensive to justice for him to fail to relieve the wife from some small part of the far greater burden of costs which she had borne in respect of the husband’s controversial, and in effect misconceived, application against her for ancillary relief.

11.	Following her recent arrival in the case Miss Ball has helpfully drafted supplemental grounds of appeal and presented a lengthy skeleton argument in which, by reference to numerous authorities, she explains the various respects in which, if granted permission, she would seek to challenge both the small -- almost nominal -- size of the lump sum order and the order for costs made against the husband. 

12.	First she alleges that the proposed appeal is of general public importance in that there is a present absence of, and a need for, judicial guidance about the extent to which in proceedings for ancillary relief a spouse’s conduct should in effect override all other factors, including his needs,  even in a case in which the other spouse has ample resources and can make some contribution to service of his needs without economic pain.  In this regard Miss Ball’s industry has unearthed a call for general guidance on the proper treatment of misconduct in awards for ancillary relief made by Burton J during his too fleeting visit to the Family Division in S v S (Non Matrimonial Property: Conduct) [2006] EWHC 2793 (Fam), [2007] 1 FLR 1496, at [41].  I cannot think, however, that, even if this court had  before it a full appeal on that point, it would feel able or willing to give the sort of general guidance for which Burton J there called and for which Miss Ball now asks.  In relation to each set of facts the court has to exercise its discretion and in my view this court would be most unwise to be drawn into making a statement of principle about the sort of case in which, for example, conduct would override all other factors, including that of need, even if (which I doubt) it was possible for the court to formulate such a statement with any confidence.  My views run in parallel with those of Thorpe LJ in Clark v Clark [1999] 2 FLR 498, in which he said, at 507H:

“Judicial estimations of fair outcome reflecting gross misconduct should not be too refined or rarefied.  What would the ordinary right-thinking man or woman make of a judicial award of over £1m to a wife guilty of this degree of misconduct?”

Indeed Thorpe LJ added, at 509G, that, “the statute defines the judicial task and I am against further elaboration or overlay”.

13.	Miss Ball goes on to question whether the judge’s acknowledged entitlement in the present case to weigh the husband’s misconduct allowed him to weigh it, as she says, “punitively” and in such a way as to mark the “moral turpitude” of her client.  I find nothing in the judgment indicative of an attempt by the judge to exercise his discretion so as to punish the husband or to reflect any moral judgment upon him.  It is the tumultuous effect of the husband’s conduct upon the wife, her children and grandchildren, which, so it seems to me, is the feature most profoundly relevant to any suggestion by the husband, which he is able to raise only within proceedings for divorce which his conduct has precipitated, that the wife should contribute to the funding of his future accommodation or maintenance.  Had assets of the husband existed which the judge had ordered to be transferred to the already wealthy wife, such by contrast would no doubt have represented illegitimate punishment. 

14.	It is important, however, to note that the husband’s grave sexual misconduct within the family was far from the only factor which generated so small an award for him.  In effect all the family wealth had emanated from the wife’s side of the family and the judge rejected the faint assertions of the husband that in various ways during the marriage he had contributed to the size of her present wealth.  In particular, however, the judge decided to attach “significant weight” to the husband’s promise in 1993, made, it has to be said, in fairly general terms, that, in the event of further separation, he would not take advantage of her much greater wealth than his own.  I am not sure that, had I been the judge, I would, as he did, have described the agreement of 1993 as a further element of “conduct” on the husband’s part; but the label is irrelevant. The judge found that, had the husband not subscribed to the agreement in 1993, the reconciliation would not have been effected and thus the marriage would not have continued for a further 14 years and, for that matter, the husband would have had no opportunity to assault the wife’s grandchildren so egregiously.  In my view the judge was clearly entitled to consider that the circumstances of the agreement precluded the husband from being able to attach any significant weight to the further length of the marriage following 1993 and that, albeit that under the present law it is non-binding, his disclaimer of any intention to make financial claims against her in the event of ultimate divorce represented an important factor.

15.	This was a case of a nature beyond my experience in this field over 42 years and far removed from the reported authority (S v S  (1982) 12 Fam. Law 183) which Miss Ball describes as having the closest parallels with it.  In effect three weighty factors clashed with two others.  From one direction came the husband’s misconduct, the source of the wife’s wealth and his promise in 1993.  From the other came the husband’s needs and the size of the wife’s wealth.  It was in principle for the judge to analyse the consequences of the clash through the prism of what was fair. 

16.	In effect all Miss Ball’s subsidiary challenges to the substantive order follow a similar format: that to some matters the judge wrongly attached “excessive” or “undue” weight; that to others he wrongly attached even “significant” weight; that to others he failed to attach “significant” weight; and that to yet others he failed to have “effective” regard.  All these adjectives betray Miss Ball’s difficulty for they show that what is under proposed challenge is the amount of weight which the judge chose to attach to the various factors.  Miss Ball confirms that she is unable to suggest that the judge either entirely failed to have regard to a relevant factor or that he had regard to an irrelevant one. Questions of the weight to be attached to factors are in principle assigned to the court of trial.  Successful assault upon a discretionary decision requires a sharper point.

17.	In relation to the complaint about the order for costs, the charge is that, having taken the husband’s misconduct so heavily into account in his substantive award, the judge double-counted it in an illegitimate and illogical way when he came to consider costs.  The judge’s judgment on costs shows the fallacy of that charge.  He repeated at least three times that he could make an order for costs only by reference to “the conduct of a party in relation to the proceedings” and it is clear that, in the determination of that issue, he was having regard to conduct of an entirely different character from that which had weighed so heavily in his substantive analysis.  Of course Miss Ball complains that, in the light of the LSC charge over the lump sum to secure reimbursement of the husband’s own costs, the judge’s order for costs in favour of the wife leaves the husband with only about £30,000 out of the award of £100,000.  In my view, however, the judge was plainly entitled to consider that to make no such order for costs in favour of the wife would be to leave the burden of costs of the proceedings upon the parties in a ratio which was offensive in the light of the manner in which the husband had prosecuted his financial claims.  

18.	The basic complaint of the husband is that, upon his release from prison, he is unlikely himself to be able to fund reasonable accommodation or even a modest standard of living.  In the light, in particular, of his findings about the husband’s likely inheritance, the judge did not accept that prospect.  He added, however, that, were he to be wrong in that regard, the case remained one in which it would not be fair to require the wife to make provision for the husband’s economic needs.  I have sought to follow the example of the judge by attempting not to speak in emotive terms about the husband’s conduct.  But on any view his treatment of her family was, to adopt Miss Ball’s own word, so appalling and its legacy of misery has been so profound as plainly to have entitled the judge to reach what, in their absence, might well, notwithstanding the source of the wife’s wealth and even his promise in 1993, have been an appealable determination.

19.	It follows that I refuse permission for the appeal to proceed and make no order upon the application for an extension of time for doing so.  

Order: Application refused