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Family Law

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26 NOV 2014

Colborne v Colborne [2014] EWCA Civ 1488

(Court of Appeal, Black, Burnett LJJ, Ouseley J, 20 November 2014)

Financial remedies – Appeal – Consideration of CGT – Whether sufficient account had been taken of the welfare of the children – Costs – Challenge to 100% costs award in favour of the wife

The full judgment is available below.


The husband’s appeal was allowed in part and the financial remedies order was varied to take into account CGT and to take sufficient consideration of the welfare of the children.

The husband and wife were married for 18 years and had three teenage children together. They had substantial assets in the UK and Morocco. A financial remedies order was made in which the known assets were approximately £4.8m. The judge found there was no reason to depart from the principle of equality and each spouse was awarded assets of £2.8m which largely took the form of property including the matrimonial home and land in Morocco. The husband was ordered to pay the wife a lump sum of £16,000. A costs order was made against the husband.

The husband appealed both the substantive order and the costs order. He submitted that the judge had been incorrect in giving the wife all of the UK, liquid assets and leaving him with the Moroccan properties which were speculative and illiquid. It was further claimed that the order failed to make proper provision for the children. In respect of the costs order the husband submitted that it would be appropriate for him to pay for 20% of the wife’s costs. Both parties agreed that the judge should have taken into consideration £222,274 of capital gains tax payable upon the sale of the Moroccan properties.

While there was no reason to interfere with the values attributed to the parties’ assets, the judge should have taken into account the CGT liability. To that extent the calculations would be adjusted. There was also some substance to the fact that insufficient consideration was given to the provision for the two children who lived with the husband. The order would be adjusted to enable them to remain in the former matrimonial home until completion of the sale. The lump sum provision was discharged. A pension-sharing order would be varied to entitle the wife to 100% of a property in Morocco which was part of the husband’s SIPP. However, the costs order would remain in place as it had firm foundation in relation to the judge’s findings about the husband’s approach to the wife’s claim.



Neutral Citation Number: [2014] EWCA Civ 1488
Case No: B6/2014/1951

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
HIS HONOUR JUDGE OLIVER RG13D00661

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 20/11/2014

Before :

LADY JUSTICE BLACK
LORD JUSTICE BURNETT
and
MR JUSTICE OUSELEY

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Between :

COLBORNE
Appellant

- and -

COLBORNE
Respondent

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Mr Simon Calhaem (instructed under direct access) by the Appellant
Mr Nicholas Starks (instructed by Brethertons LLP) for the Respondent

Hearing date: 21st October 2014

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Judgment

Black LJ
:

The subject matter of the appeal

[1] This appeal concerns the division of capital assets on divorce and also the costs order made at the end of the ancillary relief proceedings. It turns on its own facts and does not give rise to any issues of principle.

The decision of HHJ Simon Oliver

[2] On 29 May 2014, HHJ Simon Oliver made an ancillary relief order dealing with the financial affairs of the appellant and his wife, to whom I will refer hereafter as H and W.

[3] The parties were married in July 1995, having lived together since 1986. W is now 60 years old and H is 53. They have 3 children. The eldest, a boy, is 19, and lives independently. The twins, girls, are 16. They live with H in what was the matrimonial home.

[4] In March 2013, W began divorce proceedings. Decree nisi was granted on 12 May 2014.

[5] The parties separated some time prior to the divorce but there was a dispute between them as to when. H contended that the marriage was over in 2001 and that the separation occurred then but Judge Oliver rejected that. He found that the marriage ended in 2010 although the final physical separation only took place in 2011. The marriage therefore endured for 15 years and the relationship for 24 years. The judge categorised it as a long marriage.

[6] H considered that W had made little, if any, contribution to the family. His case was that she made no financial contribution and gave him no support, that he single-handedly brought up the children, and that her conduct caused emotional and psychological trauma. The judge did not accept this. He found that W contributed equally to the marriage in so far as H allowed (§52). He was very critical of H (§11), finding that he was the one applying emotional and psychological pressure, to his daughters and to W. He said that H was “a man who expects to get what he wants” and that he would “stop at nothing to ensure that he does”. He said that the allegations H made against W were “spiteful, wicked and done deliberately to upset W, both previously and now”.

[7] Neither party was earning an income although W was in receipt of benefits. It appears that since H sold his business in 2007, realising several million pounds, the family had lived off capital. H used to be an investment banker and also worked in IT. The judge found (§41) that he was resourceful and intelligent and had no doubt that he would make “decent money” after the case was over. W “came from a background in advertising, account director and two businesses” [sic] and was doing voluntary work but the judge had no doubt that she was presently unable to work (§42). He thought she would have “the ability to bounce back in a year or so” and would want to do so and accordingly would “earn an income in the next two or three years to supplement any other income that she may have as a result of the order” that he made.

[8] The judge was asked to make a lump sum for W’s income needs but declined to do so. He saw the case as revolving around the division of the parties’ assets. That approach has not been challenged in front of us.

[9] The parties were not in agreement as to the assets for division.

[10] W’s schedule of assets put the identified net assets at just over £4,788,000 (see A15 of W’s bundle). H’s schedule of assets, as featured at A20 of W’s bundle, put them at just over £3,154,000. I note that the judge said at §19 of the judgment that the figure in H’s schedule was £3,330,000. I am not sure what accounts for the discrepancy but it is not material to the outcome of the case.

[11] The judge put the known assets at just over £4.8 million (§27).

[12] The bulk of them took the form of real property, namely the former matrimonial home in this country, land and buildings in Marrakech, and a property called The Old Post Office which is in H’s SIPP.

[13] The parties were agreed that the value of the former matrimonial home, net of borrowings and notional costs of sale, was just over £1.2 million. There was a question as to whether The Old Post Office was worth £575,000 as W said or £525,000 as H said. The judge found that it was worth £575,000 net (§26) and that finding is not challenged.

[14] There was agreement as to the value of the land in Marrakech (£160,000 net of costs of sale, see §19 of the judgment). There was, however, a significant dispute over the valuation of the two villas in Marrakech.

[15] Villa Nhehma is not yet completed; the judge recorded (§20) that H said that he needed to spend about £300,000 on it. It was nonetheless said by W to be worth £1,781,000 net. H said it was worth only £694,000, which was the sum that had been invested in it so far. The judge accepted W’s valuation (§21). He was fortified in this by what H had said in a statement (dated 14 January 2014 but unsigned, B72). There H said that, once finished, the property would have a market value estimated at €2.5 million (which the judge took to be just over £2 million) and that he estimated that £250,000 was required to finish the project.

[16] Villa Warda was ready to sell but needed a habitation licence before it could be sold. This would cost £6,000 and may take 3 months to obtain. W put the value of the property at £976,000; H put it at £702,000. In his affidavit of June 2013 in support of his application to have the freezing injunction lifted, he had put the value of the property at £1 million (C10). The judge accepted W’s valuation (§22), once again fortified by what H himself had said.

[17] The judge set out in §25 of the judgment some of the smaller assets and liabilities, namely arrears of school fees, the balance in H’s bank account and some money that came from Morocco. His figure of just over £4.8 million took these into account.

[18] The judge took the view that H had failed to make full and frank disclosure and that there were probably “missing assets” (§32). He found that H had had the sole use of in the region of £800,000 (§35). The judge identified the components of this as follows:
Proceeds of sale of 3 cars, boat and chandelier     £50,000
Unaccounted for transfers from H's bank account from £250,000 raised byway of mortgage on the former matrimonial home in August 2010 £170,000
Further remortgage in 2013 (H's share) £25,000
Monies raised from SIPP in August 2011 £160,000
Monies raised from sale of 3 Marrakech properties £320,000

[19] This list adds up to £725,000. However, Mr Starks, who represented W in front of Judge Oliver and in this court, pointed out that if account is taken of the full amount of the August 2010 mortgage, a figure of around £800,000 is correct.

[20] Adding the known and missing assets together, the judge arrived at a figure of £5.6 million for the family’s net assets.

[21] He considered the evidence under the headings in section 25(2) Matrimonial Causes Act 1973. He rejected H’s proposal that he should keep the family home for the girls and that W should have a modest home and some financial provision, the money coming from the sale of the property in Marrakech. He proceeded on the basis that the parties needed to be on an equal footing as far as a home in England was concerned so that the girls could stay with them equally (§45). He was not asked to determine where the girls should be educated but he expressed the view that they did not need to remain in private education when they had completed their GCSEs, which they were doing at the time (§46). We were told during the hearing that they have indeed now entered the state education system.

[22] The judge took the view that there was nothing to dictate a departure from an equal division of the assets. His starting point was therefore that each spouse should have assets worth £2.8 million (§55).

[23] He had to consider how the assets would be deployed to achieve that. He was not prepared to make provision for W that would require H, in whose name the Moroccan properties were, to repatriate money from Marrakech for her. He said that he could not rely upon H to do anything that would benefit W’s position (§56).

[24] The judge’s mistrust of H comes over clearly from the whole judgment. It had a foundation in H’s failure to make full and frank disclosure as revealed by his responses to W’s questionnaire of 19 September 2013 and by cross-examination. Two orders for disclosure had not produced all the material required. The judge categorised H’s failure to provide bank statements and other documentary material in response to the first order as “a wilful refusal to provide the information” (§30) and noted that he continued to refuse to answer “reasonable questions” following the second order (§31). By the first day of the hearing, documents were still missing. They were identified and some of them, 92 pages, were produced by H overnight. The judge was still not satisfied with the position and said “we only have a picture here of what H wants us to have and to see” (§32).

[25] The assets in this country were worth only just over £1.8 million which the judge felt was not going to be enough to give W either all that she was entitled to or all that she required but he decided that he could not give her assets from abroad (§57). He therefore ordered the transfer of the former matrimonial home to her so that she could sell it, house herself and pay off her debts. She would have some surplus capital from which she could provide herself with an income. In addition, he ordered the transfer to her under a pension sharing order of H’s rights under his SIPP, including in relation to The Old Post Office which would produce a monthly income, and also the payment to her of £16,000 which H had in his UK bank account.

[26] H was to retain the properties in Morocco. He also had the “missing assets” which the judge relied on to tide him over in the short term, for example enabling him to make rental payments (§59).

[27] The judge allowed only a relatively short period of time for his order to be satisfied. He gave judgment on 29 May 2014 and required that the £16,000 was to be paid to W within 7 days, the family home was to be transferred to her by 23 July 2014, and arrangements were to be in place in relation to The Old Post Office by the same date. He ordered that H was to pay W’s costs (save as stipulated) and that, pending payment of them, the sum would stand charged against such property as H may purchase in the UK.

The grounds of appeal

[28] H challenges both the ancillary relief order itself and the costs order. He already has permission to appeal the ancillary relief order. The question of whether permission should be given to appeal the costs order was left to this court; I would grant it for reasons which will appear below.

[29] As far as the ancillary relief order is concerned, H argues that the judge wrongly gave W all the liquid and UK assets, leaving him with the Moroccan properties which are speculative and illiquid. He complains that the judge overvalued the assets given to him and ignored the incidence of tax on them, as well as taking the wrong approach to the missing assets. W’s share under the order amounted to more than half of the assets, he says, when there was no justification for departing from equality. Furthermore, he complains that the order failed to make proper provision for the children, whose welfare should have been the judge’s first consideration by virtue of section 25(1) MCA 1973.

[20] As far as the award of costs in W’s favour is concerned, H accepts that his presentation left something to be desired and therefore concedes that it would be appropriate for him to pay 20% of W’s costs but argues that an order for 100% was wrong.

H’s alternative proposal

[31] As part of his appeal, H advances alternative proposals which he invites this court to consider substituting for the judge’s order.

[32] Prior to the appeal hearing he had offered to accept a reversal of Judge Oliver’s order so that he transfer all the Moroccan assets to W and retain all the UK assets himself. The principal proposal advanced on his behalf at the appeal hearing involves the sale of the former matrimonial home forthwith, with the net proceeds being divided equally save that the sum of £75,000 from the proceeds would be transferred to him to support the twins until they complete their education to first degree level. Thereafter, any residue of the £75,000 would be divided equally between the parties. The Moroccan properties would be marketed forthwith and the net proceeds divided equally and The Old Post Office would be the subject of a pension sharing order resulting in the parties sharing equally in it.

[33] In the alternative, rather than the Moroccan properties being marketed and the proceeds divided, he proposes that W should have Villa Nhehma and the land and he would keep Villa Warda. Examination of the grounds of appeal

What were the relevant assets

[34] A consideration of the grounds of appeal begins, most conveniently, with a consideration of the value of the assets, known and missing.

[35] The difference in the parties’ valuations of the known assets arose because of their difference of opinion over the Moroccan properties. The judge was without any expert evidence to assist him on this issue. He took the view that H could, and should, have provided proper valuations for these properties and had only himself to blame if inferences were drawn from documents that he had produced (§23).

[36] H argues that it was, in fact, the fault of both parties that the court’s direction for valuation by a single joint expert was never complied with. In his skeleton argument, his counsel, Mr Calhaem (who represented H before us but not before Judge Oliver, at which hearing H was in person), identified three examples of the problems that faced the parties in complying, according to H. His first example concerned a problem with an expert proposed by W who was found not to be qualified, his second example concerned the costs of the valuation, and thirdly, he said that there was no guarantee that the report would be available in time for the final hearing. It is argued that the difficulties arose because of a failure to comply with FPR Rule 25 and PD25B §8.1, which deals with obtaining information in advance from the expert about matters such as the timing and cost of the report. Both parties were, of course, expected to comply with that provision as both were to instruct the expert, but H seeks to imply that W is more blameworthy because she was represented whereas he was not.

[37] I am not persuaded that the judge was wrong to conclude that H was responsible for the lack of valuation evidence or unfair in the way in which he treated the value of the Moroccan properties. Mr Calhaem’s three examples do not withstand scrutiny. The first can be quickly despatched. The issue over the unqualified valuer arose in October 2013 (see H’s email of 11 October 2013 at B39). It was a matter of history by the time the court directed, on 8 January 2014, that a completely different organisation should act as single joint valuer.

[38] The second and third are also without substance. The 8 January 2014 order required the named single joint expert to report by 24 February 2014, therefore in good time for the final hearing. Either it had to be complied with, which would mean paying the valuer, or an application had to be made for it to be varied. W was content to comply but unable to discharge the valuer’s fees alone and H, who on the judge’s findings had access to the parties’ capital and who had been ordered in September 2013 to share the cost equally (B28), refused to pay (see his email of 25 February 2014 at E7). He did not pursue his suggestion that he could get Savills or Aylesford to value the properties for no fee. He asserted instead that W would agree with his valuations. The last communication that I can find in the bundle on the subject is W’s solicitors’ letter to H of 8 May 2014 (E12) which set out the values that W was prepared to agree, those values being in line with W’s case as presented to the judge. As the judge observed, they were based upon what H himself had said during the course of the proceedings.

[39] Whilst, for these reasons, there is no cause to dislodge the values adopted by the judge for the Moroccan properties, the parties are agreed that he should have taken into account capital gains tax of £222,274 which would be payable on the sale of the properties at these values. To that extent, the judge’s figure for the total assets needs to be adjusted.

[40] The other dispute as to the assets for division was related to the judge’s treatment of the £800,000 of “missing assets”. An important support for the judge’s finding in this respect was his view that H had failed to make full and frank disclosure. Part of H’s challenge to the judge’s approach is based upon his argument that information was not sought from him about the relevant matters during the disclosure process and he was questioned for the first time in the witness box when he was in no position to provide the answers which he could otherwise have given.

[41] This aspect of the appeal is illuminated by a general understanding of how H approached the ancillary relief case.

[42] He showed his disregard for proper process by disposing, in breach of the court order of 8 January 2014, of the proceeds of sale of two apartments that he had sold in Morocco, as the judge found.

[43] As for disclosure in the months preceding the hearing, it must be remembered that it is the duty of a party to make “full, frank and clear disclosure of all [his] financial and other relevant circumstances” as Form E warns. This is irrespective of the questions asked by the other side. Furthermore, H could hardly have been in any doubt, from the outset, that he would need to provide explanations for his use of family assets. W had made plain in her Form E that her case was that H would do what he could to put assets beyond her reach and that he had already disposed of some funds without accounting for them (see, for example, C43).

[44] H is right to say that there was only one questionnaire put to him by W but there were several missed opportunities for him to provide his answers to it. Quite apart from the fact that he could have answered spontaneously, he could have answered in response to the court order of 29 September 2013 (B28), or in response to the court order of 8 January 2014 which had a penal notice attached (B49), or following the service of an application for his committal (B52) or following the hearing that resulted at which Judge Oliver warned him that if he did not provide information, he would assume that he was hiding something (G2). His response to a significant number of the questions asked of him in the questionnaire was initially a bald “No” or “No. Not necessary.” (D9) and it remained deficient, even if slightly less bald (see the responses at D11 and the annotated versions of the questionnaire identifying deficiencies at D15 and D41). The gaps in his disclosure included proper information about his SIPP, for example. The importance of the information about the SIPP cannot have been overlooked by H, given that there was a specific provision about it in the 20 September 2013 order (§3) and he was expressly ordered again to comply with that in the January 2014 order. He was asked in the questionnaire to provide two years’ accounts for the SIPP but only provided a document relating to the period ended 31 May 2012 and then only during the hearing. Tax returns might have assisted in understanding the position, and were requested, but H failed to disclose all those sought. The process by which he extracted approximately £160,000 from the SIPP remained unclear, as did the question of how the rental income from The Old Post Office was dealt with. Indeed, even during the appeal hearing, H advanced a new case in relation to the SIPP, namely that of the £160,000 said to be owed to the SIPP, £100,000 was not in fact part of the SIPP at all.

[45] It is no surprise, in circumstances such as these, that W’s lawyers concluded that there was no point in putting further questions to H about the assets and that progress would only be made at the hearing during cross-examination. As for H, I find it difficult to accept that he would not have known that he might have to answer questions about sizeable payments out of disclosed bank accounts. D36 to D39 show that over a period of a little over a month and a half (from 28 August 2010 to 18 October 2010), 6 transfers of £10,000 were made from the bank account into which H had just paid the £250,000 of mortgage money and £60,012 of “foreign currency” was paid out. Questions were highly likely to follow. All in all, the judge was entitled to be sceptical, in my view, about H’s explanation for his failure to account for where the money had gone.

[46] The position is similar in relation to the account which was credited with £157,586 related to the SIPP on 1 August 2011 (G23). On the one sheet statement available, there are 6 transfers out of £10,000 and 4 of £5,000 between 1 August 2011 and 12 October 2011.

[47] H’s explanation as to what had happened to the £800,000 was that it had been used for matters such as school fees, overdrafts, bills, mortgage arrears, living expenses, and possibly Morocco.

[48] A detailed analysis of what had become of the money and what remained was not possible on the material available to the court and, having concluded that H had had a large amount of money and not provided a clear explanation as to where it had gone, the judge was entitled to conclude that he still had some of it. I am not persuaded that he was wrong to work on the basis, as he did at §59, that at least £170,000 remained. The first of the £800,000 had come into H’s hands in August 2010, a few months less than 4 years before the hearing. H put his income needs at nearly £115,000 per annum, including school fees, in his Form E. Even allowing for one off payments of arrears and so on, the judge’s figure does not therefore seem unreasonable.

[49] Mr Calhaem argues that it would only have been appropriate to add back the £800,000 if it was established that H had wantonly dissipated it. This is largely an arid argument with no impact on the outcome even if it is correct. I will return to the question of H’s use of the money at the end of this judgment in the context of the judge’s pension sharing order but I am presently concerned with the argument that the £800,000 should not have formed part of the judge’s figure for the assets. In arriving at his overall figure of approximately £5.5 million, the judge did add in the £800,000 which he described as “money that is either undisclosed or which has been used by H and which he has had the benefit of” (§§36 and 37 of the judgment). However, this additional £800,000 had no impact on the provision made by the judge for W. The £1.8 million worth of assets that he gave to her represented significantly less than half of the assets, even net of the £800,000 and taking account of the CGT of £222,274 that should have been deducted in relation to the Moroccan property (£5.5 million - £800,000 - £222,274 = £4,477,726 ÷ 2 = £2,238,863).

Unfair distribution of the assets

[50] H argues that the judge’s order failed to respect the Wells v Wells [2002] 2 FLR 97 line of authorities in that he gave him only risky, illiquid, overseas assets, giving W the entirety of the UK assets, and that this was particularly inappropriate given that he has responsibility for the children.

[51] I am not persuaded that the judge made any error of this type. The principal reason why he took the course that he did was that he found himself unable to trust H to enable W to realise the overseas assets. H points out that there would have been alternative means of safeguarding her position, for instance by securing her share against his assets in this country or making the transfer of the former matrimonial home to him conditional on her claims first being satisfied. However, the judge saw these parties give evidence and determined how his discretion should be exercised on the facts of this case. He was in a much better position to evaluate the various factors in play than is this court and there was adequate material supporting the order upon which he settled. It would be wrong to overplay the potential difficulty for H in raising money by selling the overseas properties. He had achieved the sale of three properties in Morocco shortly before and during the proceedings and, although he said in oral evidence that the remaining investments were speculative, he also said that it was a good time to sell a property there and that a quick way to do so would be to offer it at a favourable rate (see the transcript at P175). The judge’s order gave him over £850,000 more than W so favoured him sufficiently to take account of any disadvantages flowing from the nature of the property making up his share.

Failure to give first consideration to the welfare of the children

[52] The judge proceeded on the basis that both parties needed to have a house in England where the girls could stay with them equally. There was sufficient capital available for this to be achieved and I would not criticise it as a longer term objective. However, when it comes to the short term, I think there is some substance in H’s complaint that the judge failed to give sufficient consideration to the welfare of the children in the aftermath of his order.

[53] The fact was that the girls’ home was with H in the former matrimonial home. Alternative arrangements would need to be made for them upon sale. Under the judge’s order, H will have to realise some of the overseas assets in order to purchase another property. This will inevitably take time to achieve. The judge appears to have assumed that meanwhile he could rent a property. That may be so as a temporary measure but the tight timetable imposed by the judge does not seem to me to make proper allowance for the practicalities.

[54] I would adjust the order so as to enable H and the girls to remain in the house for rather longer so that H can take steps to sell Villa Warda (if that is how he proposes to raise capital) and to obtain alternative temporary/longer term accommodation in England for the family. In my view, the appropriate order would be for the former matrimonial home to be sold, with W having conduct of the sale, but with H and the girls entitled to remain in the property until completion which will not be expected to take place until the February half term 2015 unless H agrees. This should provide H with some time to make practical arrangements here and in Morocco and should also ensure that the girls’ move takes place at a point during the school year when they can accommodate it. It can be assumed that income needs will be catered for in the interim from the monies that the judge found remained from the £800,000. The relatively short delay involved will not prevent W from paying off her debts and moving into more satisfactory accommodation within a reasonable time.

[55] The judge’s order provided for the payment of a lump sum of £16,000 by H to W. This was cash then acknowledged to remain from the £800,000. It has since been spent by H in day to day living expenses and I would therefore discharge that provision.

The order in relation to the SIPP

[56] I would also amend the judge’s order in relation to the SIPP. There remains considerable uncertainty about the SIPP. There was no difficulty, in my view, with the judge making a pension sharing order enabling W to take over H’s rights in respect of The Old Post Office. However, I am concerned about the judge’s treatment of the £160,000 cash borrowed from the SIPP by H. His order gives the benefit of all H’s rights under the SIPP to W and it seems to me that this must include not just The Old Post Office but also whatever sum H owes to the pension fund. This arrangement seems to me to contain the seeds of yet more potential disputes between the parties as issues over what H is to repay to the fund are ironed out. For two reasons, it seems to me also to be unfair to H. Furthermore, I am not at all sure that it was what the judge had in mind when planning the provision he would make for W.

[57] To explain why I say this, I need to return to the judge’s analysis of the position in relation to the £800,000. He proceeded on the basis that there remained of that money at least £170,000. He placed reliance on that sum, which was derived from the money transferred following the larger of the two mortgages, as a resource for H and the children for the immediate future, for example for rental payments. What of the balance of the £800,000, that is to say £630,000, of which the £160,000 borrowed from the SIPP formed part? As H has had no income, a not insignificant part of that balance must properly have been used for living expenses for himself and the girls, school fees and the like. There is a real question mark over whether it would be right to expect H now to pay sums expended in this way (which may include some or all of the £160,000) back into the family pot; that is my first reason for perceiving an unfairness to H. True it is that W is getting less than a half share of the assets and it could be argued that this £160,000 should be repaid in order to bring her nearer to equality. However, as I have set out above, the uneven distribution of value in H’s favour is part of the answer to H’s complaint that his share of the assets is made up of the overseas property. That is my second reason for perceiving unfairness – the £160,000 cannot play its part in that if it has to be repaid to W.

[58] I said that I was not at all sure that the judge had the repayment of the £160,000 for W’s benefit in mind when he devised his order. His workings out in this respect can be found in §58. He referred there to the former matrimonial home (worth £1.2 million), The Old Post Office (worth £575,000) and the £16,000 remaining in H’s bank account. He made no express mention of the £160,000 owed to the SIPP although he did conclude the paragraph by indicating that there needed to be “a pension sharing order to the tune of 100%”. Immediately before this, he spoke in terms of W getting about £1.8 million and one might have expected him also to have given a revised figure to take account of the repayment into the SIPP of a sum as significant as £160,000 had he had that in mind.

[59] For all these reasons, I would modify the pension sharing order in relation to the SIPP so as to entitle W to 100% of the benefit of The Old Post Office but no part of any other capital owed to the fund. The question arose during the appeal hearing of how H had been able to draw rental income from The Old Post Office and what the tax consequences of this were. For the avoidance of doubt, I would make plain that this is a matter that must be addressed by H alone and in such a way as to ensure that W’s interest in respect of The Old Post Office is not adversely affected.

Costs

[60] W’s costs were in the region of £60,000. The judge ordered that H should pay them because of the way in which he had approached the litigation, including making a wholly inadequate offer of £250,000 and failing to make proper disclosure (see §15 and §63 et seq of the judgment).

[61] The general rule in financial remedy proceedings such as these is that there is no order for costs (FPR 2010 Rule 28.3(6)). H accepts that his conduct permitted a departure from this but argues that the costs awarded to W should reflect the increase in those costs occasioned by him, which he puts at 20%. It is submitted that the judge failed to take account of the impact that his costs order would have on H and the children and further that it was unfair to order that the amount be charged against H’s property, although it is not argued that the judge lacked power so to do.

[62] Having reviewed the progress of this litigation in some detail in order to deal with the appeal against the judge’s substantive order, it seems to me plain that H’s attitude to it ruled out any possibility of a settlement and greatly increased W’s costs. The judge cannot, in my view, be faulted for deciding that his behaviour should be reflected in a costs order. However, some costs would have had to be incurred even if H had been entirely cooperative and I accept Mr Calhaem’s argument that the order should reflect the actual impact of his approach. H’s approach did not generate the entirety of W’s costs. It did, however, increase them significantly. I would not therefore support the judge’s order for H to pay 100% of the relevant costs but would substitute an order for payment of 80%. In the absence of any argument over whether the judge had power to make the order that he did for the debt to stand charged against such property as H may acquire here, I would not interfere with the order which had a firm foundation in the judge’s findings about H’s attitude to W’s claims.

Conclusion

[63] For my part, I would accordingly allow the appeal to the limited extent that I have explained in this judgment and invite counsel to draw up an order reflecting the adjustments needed to the judge’s order.

Burnett LJ:

[64] I agree.

Ouseley J:

[65] I also agree.

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