Thursday, 12 January 2012

Brevity – the soul of judicial discretion, and what’s wrong with equality anyway?

The problem with most appeal reports on family finance cases is that they concern cases which fall into a relatively exclusive category – ones where there's enough to go round! The reality is that the overwhelming majority of clients in practice are looking at dividing a pot which is insufficient to provide in full for what they each need for the future. Practitioners have to advise not on how to divide a surplus but how to manage two deficits!
Moor J has allowed the report to be published on bailii and early on he explains what the case was like: "This case was difficult for the District Judge and it has been difficult for me. There is simply insufficient capital and income available to cater for the needs of both parties." There's a terrible familiarity about that for most people separating and for their lawyers.
"The court has to be fair to both parties but, in one sense, the only way to do that is to balance the unfairness." I've always referred to this as 'the equality of misery principle'. The closest thing to justice most courts can manage is to ensure that both parties leave court feeling fed up!
The virtue of brevity
For the second time in recent days, an appeal judge has commented on the fact that the judge at first instance is not necessarily going to be exhaustive or detailed in his judgment. If it's a brief judgment, that doesn't mean it's appellable. Moor J quotes Thorpe LJ from 2003 when he said, "The more experienced the judge, the more likely it is that he may display the virtue of brevity. Certainly, it is not incumbent upon the judge to adopt some formula for judgment or simply to parrot statutory provisions. For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions."
This is the second time in a matter of weeks that Thorpe LJ has been quoted. Munby LJ quoted him in a children case recently when he said, "the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?" Thorpe LJ had previously observed that one should not ignore the "seniority and experience" of the particular judge, the "huge virtue in brevity of judgment", and that the "more experienced the judge the more likely it is that he may display the virtue of brevity." I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons."
How the case played out
This was a Husband's appeal against an order by which the Wife got 70% of the matrimonial home, which was, as is normally the case, by far the largest asset. The Wife was also to be paid maintenance of £500 per month for four years, but without a bar on extending the term. It was a long marriage, with the children of the family now close to independence. The appeal was allowed, with the following reasons being given:
(a) It does not sufficiently reason the very significant departure from equality that is the effect of the order. Indeed, the judgment does not mention the need to justify a departure from equality.
(b) In so far as there is a needs justification for departure, it does not explain how the resulting capital order will fairly meet the needs of both parties, as opposed to the Wife alone.
(c) It does not adequately explain the interplay between the periodical payments order and the capital order.
It's perhaps the first of these which is most important. Where there's a long marriage, the court needs to explain expressly why an equal division of the assets would not be fair. As Moor J said, the inequality of income may well be the reason but the judge needs to say so if that's what it is. What's more, the judge has to take both parties difficulties into account. All too often, husbands feel that it's the wife's hardships which have the greater influence with the court. The judge at first instance simply didn't explain how the Husband would be able to live separately here. Both parties need to be able to live independently of the other. An order which doesn't provide for this falls foul of one of my other principles, "the park bench principle", which holds that an order which has the effect of leaving one party to sleep on a park bench falls foul of the court's duty to make such order as is just and reasonable in all the circumstances of the case.
The upshot of all this was that on appeal, the court dismissed the Wife's claim for maintenance, saving the Husband at least £24,000 over a four year period.
Lessons to be learned
  1. If the judge deals with the case in short order, that doesn't mean he/she hasn't dealt with it adequately. You need a lot more than that in order to have a successful appeal.
  2. At the end of a long marriage, equality of outcome should be regarded as justice, unless there's a clear reason that it isn't. To give one party the lion's share of the assets and leave the other with a continuing maintenance burden is going to be extraordinarily hard to justify.

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