Ancillary relief – Appeals – Divorce

Richard Barry Brisset v Ann Brisset: CA (Civ Div) (Lords Justice Sedley, Jacob, Wilson): 9 July 2009

The appellant husband (H) appealed against the dismissal of his appeal against an order for ancillary relief in favour of his former wife (W).

The marriage had broken down in 2004 when both parties were in their sixties and retired. They had agreed that capital and income should be divided in equal shares on a clean-break basis. Division of the matrimonial home and pension had been agreed, and H had also acknowledged that equity required him to pay W a balancing lump sum. The amount of the lump sum had remained in dispute and a district judge had assessed it at just over £35,000. H had appealed against that figure, complaining that there had been an element of double-counting. The circuit judge hearing the appeal rejected H’s contentions. He told the parties that he had directed the district judge to provide his written comments on H’s contentions and he read these in court. He also told the parties that after receipt of the comments, he had spoken to the district judge to make sure that the figure being appealed had been checked before the transcript had been approved. On appeal, H insisted that the final lump sum figure was vitiated by an element of double-counting.

Held: The circuit judge had been wrong to communicate with the district judge about the substance of the appeal. He had used the district judge’s comments as reasons for the dismissal of the appeal and the district judge had thereby been allowed to influence the outcome of an appeal against his own decision. It was not unusual for circuit judges and district judges working in close proximity to discuss cases of mutual interest or perceived difficulty, but in relation to pending appeals the circuit judge had to build a Chinese wall between himself and the district judge. The only exception to that principle was where a party had appeared as a litigant in person before a district judge. The circuit judge was entitled to ask the district judge to amplify a judgment in the same way that advocates were encouraged to do so where they considered that a judge had failed to address issues or explain his reasoning, Re T (a child) (Contact: Alienation: Permission to Appeal), [2002] EWCA Civ 1736, [2003] 1 FLR 531 applied. The nature of the instant enquiries did not fall within that exception and therefore the circuit judge’s conduct of the appeal had been improper. Having communicated with the district judge, the circuit judge had been right to have fully informed the parties, but he should never have allowed it to happen. The instant court was required to step into his shoes and conduct the appeal afresh.

(2) The circuit judge had been wrong in principle to have rejected H’s complaint of double-counting. On the facts, the district judge had unfortunately made a mistake in his recollection of what the parties intended by the equalisation payment. He had assessed the payment on an inaccurate basis and his calculation had included an error of double-counting to the prejudice of H in the sum of £15,000, Charman v Charman [2007] EWCA Civ 503, (2007) 1 FLR 1246 and Vaughan v Vaughan [2007] EWCA Civ 1085, [2008] 1 FLR 1108 considered. Generally speaking, application of the sharing principle did not require the court to conduct the exercise of charting the disparity of income between the parties during the years of separation. The essential exercise of sharing the currently held assets, whether in equal or unequal proportions, normally catered for such disparity.

(3) (Per Sedley LJ) The judge below had, for better or for worse, no right to be heard. He had to leave it to the advocates to ensure that if the terms of the judgment or the formal court documents did not themselves keep the record straight, the superior court was not misled. The professional duty of candour resting on counsel and solicitors was therefore correspondingly high.

Appeal allowed.

Rachel Spicer (instructed by Andrew Jackson (Hull)) for the appellant; Maria Scotland (instructed by Bar Pro Bono Unit) for the respondent.