England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(His Honour Judge Coningsby QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 17th April 2002

1. LADY JUSTICE HALE: This is a renewed application by a former husband against orders made in ancillary relief proceedings following a divorce. I hope he will forgive me for calling him "the husband" and his former wife "the wife". This would be a second appeal. The original order was made by District Judge Freeborough on 25th April 2001 in the Croydon County Court. The district judge heard the case over three days. The husband appealed to His Honour Judge Coningsby QC, who dismissed his appeal on 7th February 2002.
2. At the time of the hearing before the district judge the wife was aged 51 and the husband 58. They married in 1979. The district judge described their standard of living as "frugal", as indeed it must have been for the assets which they have between them to have been accumulated. The wife worked as a nurse, and was still working at the time as a sister in a well known private hospital in London. That employment was pensionable and her pension had a transfer value. The husband worked as an engineer and was a chartered company secretary, but he has a chronic heart condition and is severely visually impaired as a result of diabetes. His income comes from pensions relating to his disability and investments.
3. They have two children: Anna, who is a medical student, and Andrew, who was studying for his A-levels but intending to pursue higher education in due course. They divorced in the year 2000. Nevertheless, they were then, and still are, both living in the former matrimonial home. The district judge described an atmosphere of mutual suspicion and acrimony.
4. Much of the evidence before the district judge was directed at each party's allegations of non-disclosure of the full picture of their assets. The district judge rejected the husband's allegations against the wife, but found clear evidence of non-disclosure by the husband. He calculated that they had some £938,441 worth of assets between them. These included four residential properties: 57 Ash Tree Way, which was the former matrimonial home; 11 Clarendon Road; 72 Spring Lane; and 71 Stretton Road. The district judge also found that the husband held a substantial sum in cash amounting to over £188,000. He also held that the husband was beneficially entitled to accounts held in the name of his sister amounting to some £89,000 and to other accounts in Sri Lanka amounting to over £20,000. The wife, on the other hand, had various building society accounts amounting to some £84,600. They both had a variety of shares: nearly £16,000 in the husband's name, over £33,000 in the wife's name, and nearly £7,000 jointly owned.
5. The district judge regarded this as a long marriage in which they had both made a major contribution to the accumulation of the family assets. After considering the decision of the House of Lords in White v White [2001] 1 AC 596, he decided on a clean break with an equal division of the capital he had identified, leaving each to look to their own resources to support themselves thereafter. The outcome therefore gave them both assets totalling around £469,000. He did this by ordering that the wife, in addition to her other assets, was to have the former matrimonial home and 71 Stretton Road, the jointly owned shares and a balancing lump sum payment of some £37,600. The husband, therefore, was to have 11 Clarendon Road and 72 Spring Lane; the cash that the judge found him to have, less the lump sum; the accounts held by his sister and the other Sri Lankan accounts, and his own shares.
6. On appeal before His Honour Judge Coningsby the husband argued, firstly, that the district judge should not have made an equal division. Secondly, he made a large number of specific points. Some of these were attacking the district judge's findings of fact: for example, in relation to the Sri Lankan accounts; the wife's allegedly fraudulent activities; the wife's alleged concealment of assets; the wife putting small sums into savings accounts for the children, and so on. He also said that some of the assets had been double-counted. The circuit judge went carefully into each of these, as the district judge had done, and found no reason to disagree with the district judge's findings of fact.
7. But the main points raised by the husband were his considerable disability, his need for appropriate housing and care as a result, and the treatment of their present and future expected incomes. The circuit judge took the view (as is indeed apparent from the judgment) that the district judge was fully aware of the husband's disability. He was aware that the husband would need to rehouse himself, but he could do so out of the capital assets which he would have after the settlement. He would also be able to use those assets to provide an income to supplement his disability pensions and thus look after himself.
8. The main argument put forward by Mr Todd in this application is much the same. Everything has to be looked at, of course, in the light of the husband's disability, and there will be a considerable disparity in their future incomes from pensions and/or earnings. He argues that the capital value of the wife's future pension entitlements, and in particular the lump sum element of that, should have been taken into account. He argues that it was plainly wrong not to do so, because this was an asset which the wife had accumulated as a result of her work during the marriage. The contributions that she had made to her pension entitlement should therefore be taken into account just as should savings or houses acquired by similar contributions over the years. He makes various other detailed points about what should have been taken into account.
9. He also argues that it is significant that the husband was acting in person, both before the district judge and the circuit judge. He had had three local firms of solicitors acting for him at various times before the hearing before the district judge, and the circuit judge described these as local firms regularly involved in family law work. He had other solicitors acting for him before the hearing before the circuit judge, although they applied to be removed from the record only one week before. Mr Todd says that there were good reasons for the husband parting company with each of those firms of solicitors. A litigant in person should not be treated any better than a litigant who has the benefit of legal representation, but certainly should not be treated any worse; and particular care should be taken with the determination of assets and, in particular, the use of schedules of assets in those circumstances. He argues that two insurance policies - relatively modest insurance policies, the bonus notices for which appear in the bundle - do not appear to have been taken into account in the assets schedule. Allied to that may be also the point made by Mr Todd, on instructions from his client, that, as a disabled, severely visually impaired black man, he felt at considerable disadvantage in court in opposition to a young white barrister.
10. Mr Todd, also on instructions, makes some points about the factual findings made by the district judge and urges his client's view that he cannot live anywhere other than the current matrimonial home. He is therefore unable to make an offer to implement any part of the orders made, which have now been considered in full by two experienced members of the judiciary. That is the difficulty that Mr Todd faces. In urging this application upon me, he has said everything that could possibly be said. He has said it with great common sense, with great moderation, and most attractively.
11. This would be a second appeal. It is not enough to show that an appeal would have a real, as opposed to a fanciful, prospect of success. In those circumstances section 55 of the Access to Justice Act 1999 requires him to show an important point of principle or practice, or some other compelling reason why the appeal should be heard by this Court. Any judge situated as I am currently situated is only too well aware of the stern warning given by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 against this Court seeking to interfere in the distributions of assets made by the lower courts. I take Mr Todd's point that this is not, if he were to succeed in all his arguments, necessarily to be regarded as a fine tuning point, but nevertheless it is still a case in which two judges heard the case at considerable length, in considerable detail, and with great care. It is deeply unjust to the person who has the benefit of that consideration to have that benefit put at risk and to be subjected to a further hearing going over much of the same ground unless there is a real point of principle or practice.
12. The difficulty that Mr Todd faces is that the treatment of pension entitlements in the distribution of family assets upon divorce is a discretionary matter which may be approached in a variety of different ways. Nothing I say here establishes any particular principle. Nevertheless, one way of looking at it is that the whole idea of an equal division of the assets available today and a clean break is that thereafter the parties go their separate ways and support themselves from their own resources. That is the view that the circuit judge took. That approach obviously has to yield to other factors: for example, where one of the parties will not be able to provide for his or her own and, in particular, their children's needs without more - whether that "more" is in the shape of a larger share of the capital assets or whether it is in the shape of future income provision. On the facts found, with which this Court simply cannot interfere, that is not the position here; so that is not a good reason to interfere with the distribution.
13. Where the expectation is that each party will be looking to their own income resources for the future, then it may be appropriate to leave that income to be provided by the pensions that they then, or in the future, will have in payment. There is nothing at all in the law to suggest that the court's powers to redistribute family assets on the point of divorce should be used in such a way as to secure continuing equality in their incomes in the future. Indeed, a statutory provision which was at least arguably designed to produce that result was expressly repealed by Parliament in 1984. Since then it has not been the law that the object of the exercise is to achieve, so far as practicable, the result which would have been achieved had the parties not been divorced, i.e. their continuing to share the same standard of living and the same level of income. I appreciate that there may well come a time when this whole matter may need to be looked at again by this Court. But that is not this case, and I do particularly bear in mind the possible injustice to the other party to these proceedings were they to be allowed to drag on and expend even more of the couple's resources than they already have.
14. I also bear in mind that there were very considerable factual disputes between the parties which were determined with, in my judgment, considerable care by the district judge. On the evidence before me, the district judge went to a great deal of trouble to ensure that the husband received a fair trial and a fair hearing in the context of his disabilities. There is nothing at all to suggest that he was treated less favourably either because of his disabilities or for any other reason. The factual matters, for example, relating to the insurance policies to which Mr Todd draws attention may well be the subject of a factual dispute, and it would be quite wrong for me to speculate about that and what the outcome would have been had they been pursued when they should have been pursued.
15. So for all those reasons I do not consider that it is open to me to grant permission to appeal in this case. The application must be dismissed.
Order: application for permission to appeal dismissed.