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
(MRS JUSTICE ELEANOR KING)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th June 2009

Lord Justice Thorpe:

1. On 19 June, having considered the application for permission to appeal, and certainly the first of the three submitted bundles, I refused permission for reasons that were typed by my clerk. I draw attention to the one typo in paragraph three, where 'particularly' emerges as 'partly'. In expressing my conclusions, I did have the advantage of a skeleton argument from Mr Lewis Marks QC, dated 2 June. That of course is not an aid for which the Rules provide, but it is something that not uncommonly results when a respondent gets wind of a paper application to the court.
2. This afternoon we have heard from Mr Mostyn QC who has renewed the application and orally urged and extended the points in his skeleton argument. He emphasises that were any relief granted this afternoon, it would be used immediately as a passport into the Court of Appeal mediation scheme. Of course it would only be a partial passport, for entry to the scheme would depend upon the concurrence of the respondent to this application. But nonetheless, for us to set up a potential mediation is in itself, if not an encouragement, at least some pressure upon the respondent to resist the temptation to refuse mediation without proper consideration and maybe even reason. So that is a consideration that was not before me on 19 June.
3. Mr Mostyn's principal point is that it is perverse, legally incorrect and demonstrably unfair for the judge to order a lump sum of £5 million against the wife on effectively the sole ground that the husband can demonstrate that on a professional valuation his huge emotional and financial investment in a Liverpool property now stands at a financial minus of £10 million. Mr Mostyn says that such a valuation presupposes an immediate crystallisation by sale. That is the one eventuality that we all know is exceptionally unlikely to result, since the husband has said in evidence that he will trade his way out of the present low point if it be his last act on earth. Mr Mostyn emphasises that really nothing has changed since, this is a let building with high class tenants who are bound by the same contracts and covenants and who will continue to pay the same rents as are provided for or as will be determined. Accordingly the reduction in the assumed basis of valuation from, I think, 20 to 12 year receipts is purely a notional intellectual exercise on the part of professional valuers. So Mr Mostyn asserts that the obvious solution at trial was to bind the wife into the future fortune of the development, whether it be recovery or whether it be ruin.
4. Mr Mostyn says that this is the point that really does need to be considered by the court, although he faces squarely the difficulty that this case was never run below and he accepts that in consequence there may be ultimately some costs penalties. He also seeks to run a point which does not much attract me, as to the proper approach to non-matrimonial property. He accepts that paragraph 66 of the judgment to the court in Charman [2007] EWCA Civ 503 appears to give guidance and he asserts against that only a decision at first instance by Burton J. So it does not seem to me that he can run with that in the Court of Appeal.
5. He also wants to argue that due regard should have been paid to the Californian law, these being Californians who are non-domiciled habitual residents in this jurisdiction, again a point not run below, a point which seems to me on the facts of this case unlikely to go far. However, pending the decision of this court in Granatino, to be handed down later this week, perhaps the point should be allowed to survive for consideration in the light of that judgment.
6. Finally, Mr Mostyn seeks to raise a question of general application as to post-separation dequest, again a point not taken below. This is another instance of a litigant fighting a case at trial with one legal architect of the argument and then coming to this court, dissatisfied with the outcome below, having engaged a different architect and advocate who seeks to advance substantial arguments just never put below. It is a tendency that is unattractive and to be deprecated, but I accept that in the end if justice requires it the points have to be investigated and costs penalties devised.
7. So after all that summarisation I would with some hesitation grant permission, directing that the resulting appeal be not listed before the Michaelmas at the earliest. Letters of invitation must be sent by the Court Office to the parties to enter the Court of Appeal mediation scheme, and the parties must report immediately to the Court Office, or perhaps the Court Office is inevitably informed immediately of their response to the invitation. Assuming that the court then appoints a mediator or mediators, I would direct that the parties be under an obligation to report progress to the Court Office at each significant stage and in any event at least on an eight week frequency.

Lord Justice Longmore:

8. I agree.

Mr Justice Bodey:

9. I too agree.

Order: Application granted