ON APPEAL FROM CHELMSFORD COUNTY COURT
HIS HONOUR JUDGE NEWTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LADY JUSTICE BLACK
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Mr Richard Todd QC and Ms Maohavi Kabra (instructed by Messrs Roger Brooker & Co) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Thorpe:
"However, in order to enable [the wife] to purchase a property suitable for herself and the children, taking into account that she has a mortgage potential of £42,000, I consider on balance that the husband should pay a lump sum £285,000. My order is that that should be payable in three months to enable the husband to consider how he may raise that money or whether he needs to consider other ways of raising it. However, I say that, in default, [The Orchard] should be placed on the market for sale and the wife is to receive £285,000 from the proceeds of sale, or 63% of the gross sale price, whichever is the greater."
That citation illustrates that the district judge was contemplating and allowing for the eventuality that the husband, in order to meet his obligation to pay a lump sum at £285,000, would have to sacrifice his home.
"However, in my judgment, doing my own analysis of the figures, it seems to me that if £285,000 was paid to [the wife], that would leave £270,000 available to the husband from the two properties, that is to say having regard to the likely net equity of the former matrimonial home and of the rental property. That is using my own experience and using the usual deductions give or take. I accept that does not take into account capital gains tax, as to which there is no evidence. On any view, there is £20,000 or slightly more available in bank accounts, which takes it to £290,000 and there is significant argument about other issues. There were a number of motorcars and other enquiries in relation to activities, which the Judge did not make findings about and which, doing the best I can, I have been unable really to get to the bottom of, having spent some time going through the papers myself."
"This is a difficult case. I do not see that the Judge got anything wrong in law. The cases were cited to her. She applied those cases."
"I refer very briefly to the case of Wagstaff because that deals largely with what one should consider when a large part of the matrimonial assets have been provided by damages for personal injury. I think that this was an appeal from a judge who had overturned the district judge's order. In deciding this, Butler-Sloss LJ quotes from Scarman LJ in Daubney, a case again with injuries. It says:
'I think that the statute is capable of no other interpretation than that damages at this class fall to be considered as part of a resources or property, as the case may be, of one of the parties to the marriage. It is the duty, of course, of the court to have regard to all the circumstances and to conduct.'
In Prichard v Cobden:
'It is common ground that damages for personal injuries recovered by a spouse shall be included in the part which is to be shared.'
In summary, as Counsel for the wife said, the damages are available to the whole family and the needs are no different than any set out in Section 25."
"I do not understand Scarman LJ [in Daubney] as saying that no part of damages awarded under the head of pain, suffering and loss of amenity should be charged by the other spouse but, if he did, then I respectfully disagree. The reasons for the availability of the capital in the hands of one spouse, together with the size of the award, are relevant factors in all the circumstances of s 25. But the capital sum awarded is not sacrosanct, nor any part of it secured against the application of the other spouse. There may be instances where the sum awarded was small, and was specifically for pain and suffering, in which it would be unsuitable to order any of it to be paid to the other spouse. In some cases, the needs of the disabled spouse may absorb all the available capital, such as the requirement of residential accommodation. [Counsel] conceded that any calculations made in respect of the capital of the parties should reflect a substantial discount for the fact that the money was received as damages. In general, the reasons for the availability of the capital by way of damages must temper the extent of, and in some instances may exclude the sharing of, such capital with the other spouse. It is important to stress yet again that each case must be considered on its own facts."
"The husband's closing position is a lump sum of £130,000, also proposing a clean break, and he suggests very latterly that I should consider a charge back."
"I acknowledge that he does need assistance and that these needs will increase as he gets older."
Lord Justice Jackson:
Lady Justice Black:
Order: Appeal dismissed