Case No: B6/2012/1615
Neutral Citation Number: [2012] EWCA Civ 1293
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(President of the Family Division)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 8th August 2012
Before:

LORD JUSTICE THORPE
LORD JUSTICE LAWS
and
SIR STEPHEN SEDLEY

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	EVANS
	
Appellant	
	
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EVANS	

Respondent	
			
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Mr James Turner QC (instructed by Hughes Fowler Carruthers) appeared on behalf of the Appellant Mother.

Mr Martin Pointer QC (instructed by Alexiou Fisher Philipps) appeared on behalf of the Respondent Father.
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Judgment
Lord Justice Thorpe:

1.	The issue before this court today is whether the order of the President, explained in his judgment of 16 June 2012, should be set aside on the simple basis that fresh evidence now available to the court would have, or might have, led him to a different conclusion.  The first thing to be said is that the issue is an exceptionally narrow one, namely whether a decree nisi which could almost be described as stale should now be made absolute.  

2.	The essential chronology is as follows.  The wife, who is the appellant in this court, was the petitioner below.  She petitioned on 20 October 2010, and obtained a decree nisi on 20 April 2011.  Her ancillary relief claims were the subject of a trial, which took place in March 2012.  At the conclusion of the debate about quantum, the husband, who was entitled to apply for the decree to be made absolute, given the very long interval during which the wife had made no application, advanced an oral application to the trial judge for a decree absolute.   That was not dealt with specifically in the judgment handed down; accordingly, it was renewed by the husband’s advisors as part of a request to the trial judge for clarification.  The wife responded with an application for adjournment, which was granted by the judge, who said that the application for a decree absolute should be heard on 11 May.  For reasons irrelevant to this judgment, that hearing was vacated, and two days later on 9 May the President gave general directions fixing a hearing before him on 30 May for the resolution of a number of issues, including the husband’s application for the decree to be made absolute.  That that was on the agenda for 30 May was emphasised by the husband’s solicitor in a letter written to the wife’s solicitor on 25 May.

3.	The President at the hearing on 30 May received submissions from the wife’s leading counsel to the effect that the application for a decree absolute should be adjourned over to I think 25 June.  The judge rejected that submission, and made an order that the decree should be made absolute on a date which I believe to have been 3 July.  He explained himself very fully in paragraphs 79 to 81 of his reserved judgment, which was handed down in early June.

4.	On 3 July, within hours of the date on which the decree would be made absolute, this court heard Mr Howard QC for the wife apply for a stay.  The court was persuaded to grant the stay until the hearing of the permission application at the end of that week on 7 July.  In the interim, on 5 July the wife’s London solicitors obtained from lawyers in America a letter of opinion to the effect that if the decree was made absolute in advance of the retrial of the wife’s claims for ancillary relief, she would be severely prejudiced because she would lose the prospects of enforcing whatever order was made in relation to transfer of shares in an American company between husband and wife.  Accordingly, on 6 July this court was persuaded to grant permission, and the appeal was subsequently fixed for 8 August.  

5.	Mr Turner QC, who now stands in for Mr Howard, has advanced a number of submissions; the only one of which begins to attract me is that had the President had the letters of 5 July from the American lawyers, he would not have expressed himself as he did in paragraph 79 to 81 of his judgment, and indeed either would have or might have made a different order.  That is a powerful point, to which Mr Pointer QC responds by saying that all this comes very late in the day.  The wife well knew that the issue of decree absolute was to be decided by the President on 30 May.  She had so known since 9 May.  She had advising her Mr Poznanski QC, and also as her junior counsel Mr Castle, who had been the financial provision junior throughout.  If she did not choose to take the point then, it is hardly fair that she should be entitled to do so now.

6.	Mr Turner in response says of course she was not really in a position to take the point on 30 May, because as a result of fortuitous circumstance, she had been temporarily relieved of the services of her financial provision lawyers, and her leader, Mr Richard Gordon QC, had only a limited retainer, namely to focus only on issues of apparent bias.

7.	It seems to me that the principled disposal of these arguments must be to accept that the President might have made a different order, had he had before him the letters of 5 July.  That possibility is, as it were, made manifest by the fact that on 16 and 17 July, rather than dispute the validity of the opinion expressed in the letters of 5 July, the husband proposed that in addition to the amendment of the stockholders agreement which he had executed on 5 July, he would transfer to the wife a third of the shares in the American company by way of executed transfer, which would be held to her order pending the completion on her part of certain documents as to confidentiality and non-competition.  

8.	So accordingly it seems to me that as a matter of principle, we have to allow the appeal; set aside the terms set by the President for the making of the decree absolute; say that the court will exercise its own discretion, and in the exercise of that discretion allow the husband his decree absolute upon him fortifying the executed amendment to the stockholders agreement with the future execution of the transfer of one-third of the shares in the American company.  So as a matter of mechanics, as soon as he has executed the transfer in relation to a third of the shares, then the decree is to be made absolute.

Lord Justice Laws:

9.	I agree entirely.

Sir Stephen Sedley:

10.	I agree.

Order:  Appeal allowed.