England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-THAMES COUNTY COURT
HER HONOUR JUDGE WILLIAMS
KT 04 D00514

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/05/2008

Lord Justice Hughes :

1. We handed down our judgments in this case on 19 March 2008.
2. This short additional judgment of the court, to which we have all contributed, deals with the form of order and other consequential matters, on which we have received comprehensive written submissions from both parties.

Form of Order

3. The order as drawn up by the Court stands in need of some amendment under the slip rule in order accurately to reflect our judgments:

i) the respondent husband had a cross appeal, which was dismissed, as well as an application for leave to appeal upon an additional ground relating to valuation, which we refused;

ii) the membership of the court is mistakenly recorded.

These errors are corrected in the form of order attached to this judgment.

Buy out and valuation

4. It would not be right to provide for the husband to have the absolute right to buy the wife out of the carwash premises for £400,000 or for any figure. The valuation on which the suggested specific figure would be based is in any event too old and may be too volatile. Our judgments proceeded upon the basis of proportion of value, rather than upon precise valuation. Nor did we intend to provide for a right to buy out at half value. We do not think that it is practicable now to foretell the balance of advantage or disadvantage which may exist between the parties in the future on the issue of buy out; it is of course possible that they may agree that either one will buy the interest of the other.
5. In the event that valuation of the premises is necessary either for the implementation of paragraph 2 of our Order, or for the carrying into effect of any future agreement between the parties that either should buy the interest of the other, it is desirable to limit, if possible, the scope for unnecessary expense or dispute. We shall therefore direct that any such valuation, before costs of sale and tax due, shall be made, if there is no agreement between the parties, by a single valuer jointly appointed, or, failing joint appointment, by a valuer nominated by the President of the Royal Institute of Chartered Surveyors. We note that such a provision mirrors that contained in the lease in the event of a dispute as to rental value.

Liberty to apply

6. The provision mentioned in the last paragraph removes at least one possible cause for subsequent application to the court. It is to be hoped that no occasion for any such application will occur. If it does, we see no reason why it should not be made in the County Court where this case belongs; it must be made to a District Judge approved to try private and public family law cases.

Costs

7. The wife must have her costs in this court. She has succeeded and it is not suggested that any suitable offer had been made to her by the husband pending appeal. Whilst we were as always assisted by the submissions of both Counsel, this case did not raise the point of principle on which the application for leave to appeal was originally founded (but not granted), nor any point of general principle. Rather, it was a tricky question of quantum in a case with limited assets where costs were always going to loom large in the means of the parties. The wife was entirely free to instruct whomsoever she chose, but it does not follow that the expense of a leading silk in the ancillary relief field, plus junior, is recoverable from the paying husband. If it comes to detailed assessment, the wife's recoverable costs should be limited to those of instructing Queen's Counsel of recent (say up to 3 years) appointment, and alone.
8. In both courts below the proceedings were complicated by, and before the District Judge wholly dominated by, the wife taking unfounded points upon conduct and contribution. If the husband responded in kind, that was because she had raised the issues: they were raised in her Form E (paragraph 4.4 and associated statement) and by a subsequent 58 page schedule of allegations. Approximately three of the four days before the District Judge were spent on this topic. The issue was canvassed again by the wife before the Circuit Judge, where the hearing was completed, subject to judgment, in a single day.
9. The District Judge had ordered the wife to pay the husband's costs before him. After the wife succeeded in part in her appeal, the Circuit Judge sought to simplify the question of costs. The wife had succeeded in front of her, except on the conduct and contribution issues. She concluded that those two issues had, taken very broadly overall for both courts, accounted for about two-thirds of the total costs, whereas the other issues, on which the wife had ultimately succeeded, had accounted for the other third. She accordingly made, in place of the order of the District Judge, an order for the wife to pay the husband one third of his costs, taking both courts together. Assuming that justifiable costs should be roughly equal on each side, that would have the effect of leaving the wife with two-thirds of the total costs bill, and the husband with one-third of it. Given that the hearing before the District Judge took four days and that before the Circuit Judge one, in each case plus judgment, and given the weight of affidavit, and, for the wife even expert, evidence devoted to the conduct and contributions issues, we think that the Judge was entitled to arrive at this broad assessment of the impact of those issues on the costs in the two courts below.
10. An alternative approach would also have been justified. The order of the District Judge might have been left undisturbed in relation to the costs before him, on the grounds that the great majority of them were attributable to the conduct and contributions issue and that the wife's case was that the husband should receive nothing, whilst there might have been an order for the successful wife to recover her costs on appeal, subject to an appropriate reduction to account for her continued reliance on conduct. That form of order would be likely to lead to a broadly similar result. It would, however, have the disadvantage of being likely to require detailed assessment of two bills of costs, which would increase the overall costs burden upon both parties.
11. Neither of the parties have at any stage made any Calderbank offer which comes close enough to the final result to justify impact on the question of costs. Prior to the hearing before the District Judge, the wife offered, in effect, nothing at all. The husband's offer was somewhat more realistic, but would have deprived the wife of any rent from the carwash. Between the two hearings below, the wife made a more realistic offer than she previously had, but it was still some way less generous to the husband in terms of both capital and income than was the outcome.
12. We are satisfied that substantial justice is done, on the unusual course which this case has taken, if the order of the Circuit Judge is left undisturbed in relation to both Courts below.

Leave to appeal

13. We refuse the husband's application for leave to appeal to the House of Lords.