England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(THE PRESIDENT OF THE FAMILY DIVISION, SIR MARK POTTER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd July 2008

Lord Justice Thorpe:

1. Mr Singleton QC applies for permission to appeal an order made by the President at the conclusion of a hearing in January 2008. The order itself was not perfected until April. The President anticipated an application for permission. He extended time. The application was first addressed to him. He refused it, giving unusually detailed reasons for so doing, which are to be found at 12(1) of our bundle. The application was then renewed to this court and was refused on paper by my Lord, Wilson LJ, on 23 May 2008; again he gave detailed reasons for his conclusions. His reasoning was directed towards a skeleton argument that had been written by Mr Singleton and Ms Hussey of 11 March. Mr Singleton has submitted a supplemental skeleton of 16 July, which is directed more to criticism of Wilson LJ's refusal. So this morning has been the conventional oral review, with a thirty-minute time estimate. We have, in recognition of the care and skill with which Mr Singleton has written his submissions, allowed him more or less double the allotted time to expand and develop his skeleton argument.
2. Mr Singleton has said that this is, above all, a compensation case, and the outcome is an order that provides only for (inaudible). That is, in the end, on analysis, a submission that this is a quantum appeal advanced on the basis that the order is tens of thousands of pounds too low and therefore an order that was plainly wrong.
3. In evaluating that submission, I sketch in in barest terms some of the essential background. The parties graduated from Oxbridge in the same year, 1985, and the husband swiftly joined the well-known firm Gouldens, where he remains to this day, albeit that Gouldens now practises within an international firm, Jones Day. The husband achieved partnership in 1994, which was the year of birth of the elder child. The wife, post-graduation, worked in personnel and achieved promotion in 1993. But there was an agreement, essentially on the husband's terms but nonetheless consensual, that she would give up work to bear and bring up the children.
4. Sadly the marriage broke down, and the petition was presented in 2001, and issues of ancillary relief were addressed, and fortunately compromised, on the basis that the wife retained the final matrimonial home and, together with other assets, achieved a capital clean break that gave her approximately 60% of the available capital. She also had substantial periodical payments of £33,000 per annum for herself, and for each of her children £24,000 per annum plus school fees and BUPA benefits. At the time of their consent, however, the husband's net income was £340,000 per annum, and 34% of that went to meeting the maintenance and education costs of the children.
5. There was some variation in 2005. They had inserted a complex RPI provision, but inevitably, with the passage of time, with continuing inflation, with the encouragement of judgments in this court and in the House of Lords, the wife made an application under section 31.7 of the Matrimonial Causes Act 1973 for an increase in the consent order. It was that application that the President determined in the judgment that he delivered on 29 January 2008.
6. The case for the wife was, it seems to me, extremely ambitiously presented. She advanced a budget for herself of £102,000 per annum. It would be to multiply her current provision by a factor of approximately three. In addition she sought a compensation premium of £28,000 a year. That seems to me a pretty arbitrary figure, and it may be that it resulted from a round case that she should receive £130,000 a year. It may well be that that overambitious presentation provoked the President to sharpen his red pencil when he came to the assessment of her budget. For he pared the £102,000 down to £58,500, and he pared the £28,000 down to £6,500, to arrive at an award of £65,000 a year which, whether fortuitously or no, represents precisely 50% of what she had sought. The question is whether that outcome is so low as to be arguably plainly wrong.
7. Mr Singleton has advanced some very sophisticated arguments, but in the end I conceive that his strongest attack is in relation to compensation by a glance across to the outcome in the case of McFarlane v McFarlane [2004] EWCA Civ 872. He says that this £6,500 is really derisory; when allowance is made for the costs of the wife's retraining which the President said should happen over the next twenty-four months. The cost of that, when extracted from the £6,500, reduces the compensation ordered to only some £2,300.
8. I see some force in that, and certainly Mrs McFarlane was more generously dealt with in this court and in the House of Lords. But I think it is to be stressed that Mrs McFarlane brought to the court her post-dissolution application in its first form, and it was quantified in the Principal Registry, re-quantified in the Division, quantified for a third time in the Court of Appeal, and ultimately quantified for the fourth time in the House of Lords.
9. Here the President was simply taking an application under section 31.7. It was not a case in which there was any suggestion on either side that the parties could achieve a clean break by capitalization. It was simply a question of how far continuing periodical payments should be uplifted. The President, towards the end of his judgment, noted that the figure of £65,000 to the wife, plus the additional burden for the children, would account for 32% of the husband's current enlarged net income of £470,000. So it was more or less in line with what had emerged from the consent order of 28 June 2001.
10. The President was clearly looking forward to what can be anticipated as the big future issue, namely capitalization and a clean break. The husband, although only forty-three, has an extremely responsible position that demands long hours and frequent travel. So it seems reasonable to anticipate that this high level of earned income has got maybe a future of around ten or twelve years; and somewhere within that span it is reasonably to be anticipated that there will be a section 31.7 application that seeks not just upward variation but also capitalization. And the President on one or two occasions, as it were, parked difficult issues for further investigation at that future stage.
11. Of course, if the President had awarded the wife at this stage a greater sum by way of compensation uplift, that, despite the observations of Lord Nicholls in Miller v Miller [2005] EWCA Civ 984 and McFarlane, would have some bearing on the debate at the trial of the future issue. The burden of contributing to the capitalization pot under the present regime rests squarely on the husband, and that is the factor which I think can be borne in mind when answering the ultimate question: is this award so low as to be plainly wrong? I am in no doubt that it was at the bottom of the bracket, but I am not persuaded that it has failed to land within the bracket, and would accordingly justify the granting of an appeal in a case which raises no point of principle, a case in which it cannot be said the President misdirected himself in law, and a case that would proceed purely as a quantum appeal
12. So, for all those reasons, I have reached the conclusion that the paper refusals of the President and of Wilson LJ should be supported.

Lord Justice Rix:

13. I agree.

Order: Application refused.