Shuttleworth v Shuttleworth [2005] EWCA Civ 1769

Case No B4/2005/1464[2005] EWCA Civ 1769
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MRS JUSTICE HOGG)
Venue Royal Courts of JusticeDate Wednesday, 14th December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE SCOTT BAKER
Between
HUGH ASHTON JOHN SHUTTLEWORTHRespondent-v-
Between
ELIZABETH ANN SHUTTLEWORTHRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR V LE GRICE QC (instructed by GORDON DADDS SOLICITORS) appeared for APPLICANT for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N TWednesday, 14th December 2005

LORD JUSTICE THORPE:

[1]The financial dispute between the parties has been the subject of relatively extensive litigation, the first judgment on their dispute having been given by District Judge Bowman on 10th May 2004. There were appeals to the Family Division judge, each being dissatisfied with the outcome, and their appeals were determined by the judgment of Hogg J which was handed down on, I think, 23rd February 2005. There was an application to this court for permission to appeal that I provisionally refused on paper on 8th November 2005. Today we hear a renewed application advanced by Mr Valentine Le Grice QC in substantiation of his original skeleton argument of 30th September.[2]It is probably unnecessary to rehearse the fundamental facts. It is enough to say that the district judge divided the available capital between the parties as to 55 per cent to the wife and 45 per cent to the husband, that preference being intended to reflect the degree to which the available assets had been enhanced by the wife's greater inheritance during the course of the marriage. The appeal to the Family Division judge was, in round terms, a success for the husband in that Hogg J was persuaded to adopt an equal division of the available assets.[3]It is against that point, and that point only, that Mr Le Grice seeks permission to appeal. Of course, given his great experience in this field of the law, he has recognised from the outset the difficulty that faces him, since this is an application for a second appeal and is therefore caught by section 55 of the Access to Justice Act 1999, a section that was deliberately legislated in order to circumscribe the citizen's right of appeal guaranteeing any litigant one appeal, but ordinarily preventing the litigant from moving on to another.[4]Thus, Mr Le Grice has to demonstrate that there is an important point of principle or practice or some other compelling reason why permission should be granted. He has submitted that there is an unexplored territory for the Court of Appeal and one that has a good deal of general relevance; namely, how should inherited assets be treated in the determination of ancillary relief claims and in the application of section 25(2)? He says that the point has been, as it were, advertised by White v White [2001] AC 596, but has not yet been explored and settled by any subsequent decision of the Court of Appeal. Mr Le Grice accepts that he must also demonstrate that this case fits the bill, in the sense that it is illustrative of the general point outstanding.[5]Mr Le Grice has attacked the judgment of Hogg J in a number of respects. He asserts that she has misdirected herself in law at paragraph 79 of her judgment. Further, that she had no basis for interfering with the discretionary decision of the district judge who had not misdirected herself in law or in any other way.[6]In deference to Mr Le Grice's skilful presentation I would concede that the judge's summary of the effect of the authorities, at paragraph 79 of her judgment, is open to legitimate criticism in that her first paragraph overstates the significance of equality. She said:
"After a long marriage a judge should consider equality of division of the assets, and should only depart from equality if and to what extent there was good reasons for it..."
Had she stopped there that would have been happier, but she continued:
"...and then only in exceptional circumstances, which the court should be slow to recognise."
I think that additional phrase overstates the effect of the authorities.[7]I also accept that

the judge overstated her criticism of the district judge when, in paragraph 97, she said:

"In my view the Learned DJ was wrong and plainly wrong in the exercise of her discretion."
[8]That might suggest that this was a case in which the High Court judge concluded that the district judge had exceeded the generous ambit of discretion. However, I do not think that that is what Hogg J intended, for in the following sentence she said:
"I agree [the district judge] misinterpreted Lord Nicholls in White v White with the result she placed far too much attention and weight on the wife's inheritance and therefore her contribution."
[9]That, I believe, was the basis upon which Hogg J founded her intervention and, in my opinion, it was a legitimate intervention.[10]The absence of authority asserted by Mr Le Grice on the court's approach to the impact of substantial inheritance is self-evidently demonstrated, but is this a case that provides an appropriate vehicle for a review?[11]In his skeleton argument, produced for the purposes of the hearing, I think before the district judge, Mr Le Grice had, with an advocate's partiality, presented Mrs Shuttleworth's contribution by inheritance in such a way as allowed him to assert that it merited a division of assets of 72 per cent to her, although that was not an outcome for which he contended at trial. It was a presentation that elevated the inheritance at an early stage of the marriage of a little house in Rutland Street to major significance by reliance on the extent to which the property increased in value from its original probate value, and then tracing its proceeds of sale through into the purchase of Horsley Court to bring it out at a very high figure. That sort of approach was, I think, rightly challenged when notice of this application came to the respondent and Mr Brudenell, in a note filed in accordance with the practice, draws attention to the fact that the property was in poor condition at the date of inheritance and required substantial renovation which was funded by borrowing bonds guaranteed by the husband.[12]So there are factual areas that are not self-evident and not free from contentious argument. Furthermore, this is not a case which is dominated by the inheritance characteristic.[13]The judgment of Hogg J, following the arguable error in paragraph 97 that I have already conceded, explains in vivid, and for me convincing, terms why she did what she did and why she felt entitled to do what she did. For she went straight on, in paragraph 98, to say: both parties had made a maximum contribution in financial and personal terms to the well-being of the family; that the marriage was a partnership and joint enterprise; that the decisions were joint decisions in all spheres; that the respective inheritances were received early on in the marriage; that hers was enhanced by joint effort and decision; that purchase of the successful venture, Horsley Court, was joint; that funding was jointly decided; that the husband had invested in the property; that it was a family home; that financial contributions from the wife were modest apart from her initial capital and inheritance; and that the husband provided capital and income for the family well-being even when he had not been earning. So, as

the judge summarised in paragraph 102:

"...this marriage was a joint enterprise in every way. It is impossible to evaluate each party's contribution in money terms."
[14]In the end my response to the application is to acknowledge that, had there been no prior appeal, permission might well have been granted. But this is a case in which there has already been one appeal, that shifted the division from 55 to 50. All that is sought is to bring it back to 55. I simply do not begin to accept that the stringent obstacle defined by Parliament is satisfied in this case. I remain of the opinion that I expressed provisionally on 8th November.

LORD JUSTICE SCOTT BAKER: I agree.

ORDER

application refused