We had an interesting case reported this week. The brief facts were that a husband and wife, having been unable to reach an agreement in respect of their financial matters, were asking the judge to make the decision for them. One of the key issues was how much each of them (and particularly the wife in this case) would need to be able to house themselves. The standard direction order had been made earlier in the case for each party to produce sample sales particulars for properties they thought were suitable for themselves and the other person. This is ordered in nearly every financial case where the costs of re-housing need to be considered – and that is most of them.
Anyway, both parties had hit Rightmove or something similar and found properties for themselves and the other person. The only problem was that the sales particulars the wife chose for herself were rather on the expensive side and the particulars the husband chose for her were on the cheaper side – what I like to call the ‘Castles versus Hovels’ phenomenon.
The difference between the cheapest property the wife chose and the most expensive the husband chose was £215,050.00 – which is quite a big difference. Also, the wife was then saying at the hearing that she needed £525,000 to house herself but had not produced any property details for that price point. Her cheapest produced was £585,000. In other words, she might be saying she needed that amount of money but she had nothing to back up what she was saying.
Poor judge. The wife wanted to be in Crouch End- where the cheapest property of the type she wanted seemed to be round £575,000 (not affordable) and the husband said there would be nothing in Crouch End for less than £500,000 and they would be significantly more. The wife had only looked at Crouch End – which it seems she could not afford – and the husband had gone in at the far cheaper end.
The judge heard all the evidence and what each party had to say then gave her judgment, no doubt carefully thought out. She made a comment about how unhelpful the sales particulars had been, that the wife did not appear to be able to afford her chosen area and that there needed to be a fairer distribution between the husband and wife than the wife was suggesting. The judge allowed the wife £412,000 for a house, £63,000 for her debts and she kept her pension of £66,000. The judge thought the wife would be able to house herself in or not far from the area she wanted to live – but perhaps not in the exact type of property the wife had proposed. So far, so normal.
What happened then though was that the barrister for the wife asked the court give a short adjournment to allow the wife to produce more property particulars in Crouch End, the wife clearly not being happy with the amount the judge was saying she needed. The judge did allow this and the husband appealed against the decision, saying basically that the judge had made her decision and that was that. It was final, so no second go.
So, what is the issue? An order is not a final order until the judgment is turned into an order and sealed by the court. If a party does not agree with the decision made by the court, the usual route is to appeal the decision to a higher court – but that cannot just be on the basis that one party doesn’t like the outcome. There has to be an appeal on the law i.e. the law was not applied correctly. You can’t appeal correct application of the law by the court but you don’t like the outcome.
Remember though that an order is not final until the court seals it, so what about in this case where the wife was basically asking the judge to look again before the order was finalised?
The reported case deals with the tricky area of when the court can reverse its decision before the order is drawn up or set aside an order made. Overlaid in all of this is the principle of finality. The court hears evidence, makes a decision and the book is closed with the parties moving on. Reference is made to a care case where a child had been injured and the judge thought that one parent was responsible in her preliminary judgment but by the time it got to the final judgment, the judge had changed her mind and said that she could not say for sure. Could the judge do that and reverse her decision? Yes she could. She didn’t hear further evidence. She had thought about it more and changed her view before pressing the final button.
Then you have cases where a judgment can be set aside – so not that the judge changed their mind on the facts that were presented to them but something else happened and that if the judge had known that at the time, it would most likely have affected their decision. These outside factors are fraud, material non-disclosure, certain limited types of mistake (in the legal sense of mistake) and a subsequent event, unforeseen and unforeseeable that undermines the basis on which the order was made.
Was the case described above any of these things? No, said the court. To quote Mr Justice Mostyn who was deciding the appeal “It was merely another example of counsel on behalf of a disappointed litigant seeking spuriously to try to get the judge to change her mind immediately after judgment has been delivered”. The appeal succeeded and the order would be made in the original terms of the first judge – so the wife would not get her chance to try to put more property particulars in front of the judge in an attempt to persuade her to change her decision.
What do we learn practically from this? I think the main point it to be realistic and practical when you are looking at where you are each going to be living post-divorce. Think carefully about it in terms of what is affordable. I am sure I am not alone in skipping through some lovely properties on Rightmove but proposed properties in this sort of litigation have to be rooted in practicality, with reference to the assets available and being fair to both parties in the division of assets and with a consideration of the costs of actually buying the property. Stamp Duty Land Tax, HM Land Registry fees, legal costs and costs of removal are often forgotten.
The full case report is here and remember….. no second bite of the cherry……