England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		25 February 2004

1. LORD JUSTICE WARD: This is an unhappy situation. Mr and Mrs Sawden appear today in person. Mr Sawden has never had the benefit of legal representation, though he has had help from his McKenzie friend. Mrs Sawden was until very recently represented by solicitor and counsel, but has simply run out of money and cannot afford their services any longer. They appear today on a renewed application made by Mr Sawden for permission to appeal against the order made by HHJ Meston QC on 18th June 2003 year, when he effectively dismissed the husband's appeal from the order made by Deputy District Judge Haig-Haddow on 25th March 2003, save in one minor respect.
2. The matter came before Thorpe LJ who directed it be restored before the court to consider the application for permission and, if need be, to deal with the appeal thereafter. The order under appeal is an order made on the ancillary relief applications which were first heard by the Deputy District Judge. He ordered that a Standard Life policy, which then had a surrender value of just under £6,000, should be surrendered, or if Mrs Sawden chose to pay out Mr Sawden she should do so, but he wished Mr Sawden to get a half of the value of that policy.
3. The second important order was that Mr Sawden should transfer his interest in the matrimonial home to Mrs Sawden subject to the mortgage, but subject then to a charge, the effect of which would be to give Mr Sawden 45 per cent of the equity in that property, and the remaining 55 per cent to go to the wife. But that charge would be realised on Mrs Sawden's remarriage or her cohabitation; in the event of the home being sold at her request; on the sad event of her death; or on her ceasing to occupy the property for six months. She was given liberty to roll-over the charge on one further property if she was going to occupy it as her principal residence.
4. On the husband's appeal to HHJ Meston QC, the learned judge upheld that order, save with regard to the working out of the roll-over provisions. The judge added a term that the percentage of the charge on the second property should be to an equivalent value of 45 per cent of the equity of the former matrimonial home, and would be enforceable on the same terms as related to the matrimonial home.
5. Before us to today, the points at issue between the parties have been narrowed considerably. Mr Sawden no longer challenges the essential allocation of the net proceeds of the eventual sale of the matrimonial home as to 45 per cent to him and as to 55 per cent to Mrs Sawden. That order was made by the Deputy District Judge recognising that after the parties' separation in 1996 the house has been maintained by the hard efforts of Mrs Sawden, who had to train to become a secretary, and who has taken up employment as a secretary, and thus keep up the mortgage payments on the property and provide a home for the two children of the family: Luke, who is 28, and Leah, who is 21. So, in the light of the fact that, unhappily, Mr Sawden suffers serious ill-health and cannot work, the extra contribution made by Mrs Sawden justified, in the view of both judges, her getting a greater than 50 per cent share of the equity.
6. I am bound to say that it would have been highly unlikely that an appeal against that discretionary exercise would ever have been successful. So the points at issue today relate first to the roll-over provision, and secondly to the fact that no provision has been made in this order as to what should happen when the children leave home. Mr Sawden contends that the roll over works unfairly because if Mrs Sawden were to exercise that option and trade down, thereby releasing some surplus capital, he should have his 45 per cent of that surplus. It is not a point that I think Mrs Sawden had carefully thought about, probably for the fairly obvious reason that in her present circumstances, where her home is close to her job and close to her family, the likelihood of her wishing to move is, as a matter of reality, pretty remote. But it remains a theoretical possibility that she could do so. And when the point is put to her, she saw the force of it and was immediately inclined to agree that in the unlikely event of her selling and realising surplus capital she should pay out 45 per cent of that surplus to Mr Sawden.
7. The second point urged upon us by Mr Sawden is that it is unfair that he will not realistically ever be able to enjoy the fruits of his share in this home, to which, during the 25 years that the couple lived together, he made his contribution. He is now 58 years of age and in ill-health. Mrs Sawden is 52, and although she has suffered from depression, as many years of litigation have taken their toll upon her, she is otherwise, one hopes, in reasonable health and certainly fit to work.
8. The position of the children is that Luke is a carpenter who has recently established his own business, but is financially committed to making a success of that venture, and so he lives at home, no doubt contributing to the general expenses, and certainly, as we have been told today, doing good works in helping mother improve the property, all of which will, as to 45 per cent of it, accrue to the benefit of his father, and I hope his father will be grateful for the efforts he has made in the home. Leah is a nursery schoolteacher, who is at work but stills lives at home. Who knows what the children are going to do, though I dare say their parents hope that they will find happiness in marrying or settling down with a partner, and I dare say in the fullness of time producing grandchildren for grandma, particularly, as well as I dare say for grandfather. But that may be some years away.
9. I have to remind myself that this is technically a second appeal. Consequently, to get permission to appeal Mr Sawden has to establish that there is some important point of practice or principle at stake, or some other compelling reason as to why the Court of Appeal should grant a third hearing when two judges have carefully looked at it and given judgments which are commendable.
10. I fancy that Mr Sawden would struggle to point to any point of practice or principle, especially relating to the two matters at issue at the moment. But in an exercise which involves being fair as between husband and wife, and doing justice between them, if there appears to be the possibility of an unfairness or injustice then, for my part, I would strain the rules and find that correcting that injustice is a compelling reason why the Court of Appeal should interfere.
11. Is that the case here? In the light of Mrs Sawden's commendable acceptance that if she trades down and there is a surplus she would share the surplus, that matter can be corrected and should be corrected to reflect that sensible concession, which I hope will be gratefully accepted by Mr Sawden. It may not do him much good because he is on income support and any capital above £8,000 will mean the end of his income support, but he is entitled to say, 'A little extra money would enable me to buy some luxuries which I do not enjoy at the moment', and for my part I would give permission on that narrow ground and vary the order, noting that it is done by consent.
12. As to the position of the children, Mrs Sawden makes a powerful point that this home has been her home and the family home for many years now. Since the separation in 1996 she has struggled to maintain it for the benefit of the family. She is struggling now to maintain it for everybody's benefit. It is near work and it is near her family, and with £77,500, or thereabouts, that would be realised to her were the property to be sold at the value it held at the time of the hearings below, and with her half of the policy, she would not be in a financial position to afford any great comfort in the vicinity in which she lives. She makes the emotional point that she would like to stay where she is.
13. For my part, I see the force of that, and it is a point that attracts considerable sympathy. But we have to look at the other side of the argument as well. The other side is that Mr Sawden on the order as presently framed will not receive his money unless Mrs Sawden remarries, of which there is no hint or suggestion, or choses to sell, which again seems unlikely, given her fondness for the home. The best test of judging the fairness of these arguments is to ask oneself: what order would the court have made had the case been heard when Luke and Leah had already left home? Would the argument, 'I am deeply attached to my home', the argument advanced by Mrs Sawden, prevail over, 'I deserve to get my share of the capital out of a house to which I have made my contribution', advanced by Mr Sawden. I am bound to say that it seems to me overwhelmingly likely that the court in those circumstances would, in order to do fairness to husband and wife, have to say, sadly, 'The property has to be sold. You, Mrs Sawden, will realise enough out of it to buy some home, though not as nice a home as the one you enjoy, but you will be able to have a roof over your head, and Mr Sawden, with difficulty, might have a roof over his head.' Mrs Sawden does have at present a mortgage ability of raising £30,000, though that would diminish as time passes, and as her working life draws to its inevitable conclusion.
14. In my view, the justice here is on the husband's side. I think there is a compelling reason why we should give him permission and, having given that permission, direct that another trigger be made in this order, namely that the charge be realised in the event that both children leave home and settle independently in homes of their own.
15. So, recognising the difficulties of both parents and husband and wife, I would allow the appeal to those limited extents.
16. LORD JUSTICE MAY: This is an application which, as my Lord, Ward LJ, has said is to bring a second appeal, to which Rule 52.13 of the Civil Procedure Rules applies. That places restrictions on this court giving permission for such an appeal. I agree with my Lord, Ward LJ, that Mr Sawden struggles to satisfy the requirement of that Rule, but I also agree that, stretching a point, there is a compelling reason for the court to hear the appeal.
17. For my part, that compelling reason lies in the fact that, looked at in the round, the present order would make it a real likelihood that Mr Sawden would never have the benefit of the equity in the property which the order accords to him.
18. For that reason, I too would give permission to appeal and, having done so, I agree with the reasoning of my Lord, Ward LJ, and the order which he proposes.
19. LORD JUSTICE JONATHAN PARKER: I also agree that this is an appropriate case for a second appeal within the terms of rule 52.13 of the Civil Procedure Rules. I further agree that, for the reasons which my Lord, Ward LJ, has given, with the order which he proposes.

(ORDER: Appeal allowed. No order as to costs. Any surplus on a trade down to be split 55:45 either way; to be triggered when the children leave home and settle independently then the house must be sold, unless Mrs Sawden can buy Mr Sawden out.)