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, FAMILY DIVISION, PRINCIPAL REGISTRY
(MR JUSTICE MUNBY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th March 2009

Lord Justice Thorpe:

1. This is an application for permission to appeal a tiny part of contentious proceedings between the parents of a child. The area of dispute that I review is a financial application brought by the mother under Schedule 1 to the Children Act 1989, which resulted in an order of a district judge on 10 May 2005. Paragraph 1 of that order required father to pay to the mother, for the benefit of the child, the lump sum of £20,000 by 29 July and, by 27 July, to settle for the benefit of the child the sum of £220,000 for the mother to use to purchase a property until the child attained the age of 21. The judgment of the District Judge apparently identifies the purpose of the £20,000 as having been to cover the mother's costs of removal and furnishing.
2. Those two sums of money were not paid in July 2005, and on 7 April 2006 the mother applied for a charging order against two properties allegedly owned by the father, with a view to enforcing what she said was the judgment debt of £240,000 arising from the District Judge's order. That application resulted in an interim charging order against one of the properties made by a district judge on 2 May 2006. The application for the interim charging order to be made final came before Munby J on 15 May 2006. He doubted whether, as a matter of law, the sum of £220,000 from the trust fund amounted to a judgment debt capable of enforcement by a charging order. He accordingly adjourned for the mother to consider her position. The matter came back before him on 26 April 2007, without much effect, and the judge re-timetabled to 4 July 2007. By that date, three further applications had been made: two by the mother for enforcement and one by the father for amendment of the terms of the order of the District Judge.
3. On 4 July the judge gave directions and then conducted a hearing on 12 November. He conducted a second hearing on 24 July 2008 and handed down a reserved judgment on 20 January 2009. That timetable suggests unacceptable delay, but in reality the delay was purposeful because the judge had to conduct at the same time welfare investigations in relation to the child, and so it was that his adjudications on finance were deliberately postponed pending determination of the welfare issues.
4. The application that the father issued on 15 June 2007 sought specific variation in relation to the obligation to settle £220,000 on trustees. The original order of the District Judge had been quite bereft of essential detail, and he sought detailed provisions as to the Deed of Settlement and the nature of the settlement, proposing specific paragraphs (a) to (h) inclusive: as to which, see page 61 of the bundle. In relation to paragraph 1 of the District Judge's order, the following amendment was sought:

"Within 14 days of exchange of contracts on the purchase of the property referred to in Clause 2 of this Order the Father shall pay to the mother…the sum of £20000 to be used for the costs of moving… and furnishing… The Mother shall account to the Father for the use of this sum and any amount used for purposes other than those specified in this Clause of this Order, or not spent or duly accounted for by authentic receipts within 4 months from the date of payment… shall be returned…to the Father."

5. In relation to the settlement, the father achieved a degree of success before Munby J. His order (as to which, see page 15 of the bundle) contained very detailed provisions of settlement and a timescale that commenced with the date of the order and ran for three months. So there the father seems to have succeeded. In relation to the obligation to pay the lump sum, he also seems to have enjoyed a measure of success in front of Munby J, because instead of a provision to pay a bare lump sum of £20,000, there emerges an obligation to pay a lump sum of £20,000.

"…for the cost of moving to the settlement property referred to in Paragraph 2 of the Order. The Mother shall provide a proper account of how the £20000 has been applied together with receipts for all items and services purchased therewith costing more than £10, and any balance not so accounted for within a reasonable time, for the cost of moving, shall be returned to the Father together with any interest that may have accrued during the payment of the sum of £20,000 to her."

6. I would have expected that, given that Munby J was rewriting the order of the District Judge, he would, as he did in relation to the trust property, have varied the date of performance. As a matter of logic, one would have expected the obligation to commence from the date of that order at the earliest, since the money was to meet the cost of removal, and there could be no removal until the purchase of the property. That could not be effected until the settlement, and the judge had allowed three forward months for settlement. However, the obligation to pay was expressed to be by 29 July 2005. That was a historic date. The judge's only explanation for his refusal to alter the date upon which the lump sum had to be paid is to be found in paragraph 26 of his judgment, when he said:

"The first point is that the father seeks to defer his obligation to pay the sum of £20,000 until contracts have been exchanged for the purchase of the property acquired in accordance with paragraph 2 of the order. This amounts to an attempt to re-write the order made by District Judge Roberts in circumstances when I can see no justification for what the father seeks. I refuse to do so."

I have difficulty with that paragraph, since the judge himself was to sanction a rewriting of the order. Once he had so sanctioned, the rewriting of the date of payment seems to me to be almost logically inevitable. So I do not entirely understand the judicial reasoning. The judge, when asked by the father for permission to appeal, simply says the application is refused:

"…because there is, in my assessment, no realistic prospect of success."

7. It seems to me that there is a realistic prospect of success, and accordingly I am going to adjourn this application to be heard on notice to the mother, with an appeal to follow if permission granted. The case will be listed in front of me as soon as possible, and I give it a time estimate of one hour. There will be at least one other judge in the constitution.
8. However, this does seem to be an enormous sledgehammer to crack a tiny nut. I would hope that the short judgment that I deliver this morning will be quickly transcribed and made available to the mother, who I understand now acts in person, in the hope that the obligation to pay the £20,000 can be expressed, more realistically, as a future date linked to the date of acquisition of the trust property.
9. I only add that Dr Pelling has made what seems to me to be a good point, that without that variation the mother might be able to claim judgment rate interest in respect of the historic period. I also record that Dr Pelling has stated the father's willingness to see the quantum of his lump sum obligation augmented by index linking, so that the £20,000 that the mother will receive in future will have the same spending power as it would have had some three years ago. That is the order that will be made.

Order: Application adjourned on notice.