"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the Judge gave in this case. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the Judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of theMatrimonial Causes Act 1973 ]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the Judge by a narrow textual analysis which enables them to claim that he misdirected himself."
“2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled: i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.” i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
“(2) We repeat what Maurice Kay LJ said in para 15 of his judgment in the Grace case [2014]1 WLR 3432, as quoted above: “no judge will certify an application as [TWM] unless he is confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequences of his decision in the particular case.”
“The test for the grant of permission to appeal on an application to the Court of Appeal or to the High Court or Family Court under the first limb of the relevant sub-rule is that the appeal would have a real prospect of success”
“The discrepancy in their end position is largely due to the costs of the civil claim which the husband had incurred in seeking and failing to establish that the loan from SC was a gift and was to [the Respondent] alone even though he accepted that the monies were used for joint benefit.”
“No agreement was reached. The boat ‘Whatever’ was valued for final hearing at£88,000 (Euros 100,000). [The Respondent] agreed not to deal with the net proceeds of sale of properties without the express written consent of the [Appellant], he agreed to pay all outgoings including the mortgages on the property at Shamrock House and 14 Amyas Close.”
“The hearing on 11 January had taken more than twice the time estimate of the parties because I allowed the [Appellant] to address me on almost every line of the proposed order and in a number of respects I made orders which were contended for by the [Appellant] and opposed on behalf of the [Respondent].”
“27. I must bear in mind that the overall intention of the Court should be to achieve fairness between the parties. I bear in mind too that “in general it can be assumed that the marital partnership does not stay alive for the purpose of sharing future resources unless this is justified by need or compensation. The ultimate objective is to give each party an equal start on the road to independent living” per Baroness Hale at paragraph 144 of Miller v Miller, McFarlane v McFarlane[2006] 1 FLR 1186 . 28. There are three main distributive principles: sharing, needs and compensation, shaped by the overarching principle of fairness. Each party is entitled to an equal share of the assets of the partnership unless there is good reason to the contrary- this is the yardstick of equality which the courts have stressed must not be elevated to a rule. The rationale of White is ‘fairness’ not ‘equality’. 29. The burden of proof in civil or family cases lies upon the party making the assertion and that person must prove the assertion on the simple balance of probabilities.”
“51. The sale proceeds were to be applied to pay the costs of sale and to redeem the mortgage with the proceeds thereafter to be divided equally with the judgment sum to be paid from the wife’s share. 52. I indicate straightaway that although that sets out the distribution according to the civil claim it does not bind the matrimonial court as any money received by either party will be within the matrimonial pot and must be considered as being available for distribution as deemed appropriate by this Court. The key findings are that the loan was made to both parties and used for their joint benefit. There is no reason why the liability arising therefrom should be seen as anything other than joint. 53. The husband argues that the judgment only dealt with the original loan and not the other amounts which contribute to the overall debt. He disputed that the additional£40,000 + should be his responsibility. In his evidence it was clear that he believed the civil court has determined that he is not responsible for any of these additional sums. I disagree that any such positive finding was made, the parameters of what the judge was asked to decide are set out in paragraph 12 of the judgment – he was asked to determine whether the E160,000 was a loan or a gift and, if a loan, whether it was to W alone or joint. He found it was a joint loan. He was not asked to determine responsibility for the other sums as W had agreed that judgment should be entered for those sums anyway. This is exactly in accord with what the husband’s own solicitor indicated in his letter of the25th January 2024 which H attached to his statement about these matters. 54. H’s solicitor also underlines that W had agreed the interest even though the Recorder made a finding that interest had not been considered at the time the loan was made. Mr Thomas accepts that but says that means that interest would be chargeable from the due date of repayment which was the5th July 2018 and has been calculated on that basis. 55. In my judgment in respect of the interest and the administrative charge there is a very clear argument that these arise from the original joint loan and must be seen as joint. The parties have had the benefit of the loan, if they had borrowed money from a Bank they would have had to pay interest, now the Court has determined based on the admission of the wife, that interest is payable on this loan. It was a joint loan and the interest is therefore a joint liability too. Both parties have benefitted from the loan in being able to make investments and the interest agreed by the wife was at a commercially appropriate rate for a private loan (bank rate plus 4%), particularly as it only began to run from a date in 2018 some 2 years after the original loan. I have no hesitation in coming to that determination. 56. The same applies to the administrative charge. SC sought to protect his interest by securing a charge. There were costs in doing so. Given it was H who was alleging that it was a gift rather than a loan, he can hardly complain about the necessity of doing that, the cost of SC doing so or indeed the need for that to be seen as a joint liability. 57. The third additional sum is an additional loan of£5,200 . This was not considered within the judgment in the civil claim and therefore needs to be determined within these proceedings but perhaps with some acknowledgment that it is a loan from someone who has already loaned monies to the parties jointly. 58. W says that this money was used to carry out essential repairs on a property at 84, Maple Street under threat of prosecution. She said so in her Form E. There are documents in the bundle that confirm the threat of prosecution and the need to carry out work estimated at£5,600 + VAT [D251-255]. The husband says: “My position on the loan of£5,200.00 , however, remains the same as my position on any essential costs spent on our assets. That is, that those costs are a cost from the estate and not solely for one person. Such costs include mortgage payments, service charges, council tax, berthing costs and essential works. In this case of the£5,200 , I am happy for the costs outlined for this money to form part of our financial resolution. As this loan has always formed part of the civil trial, it is only now that it is coming to the forefront of negotiations.” 59. Thus he agrees that this loan was used for an essential purpose and should be considered as a joint liability. He agreed this in oral evidence too. 60. For the reasons stated I am satisfied that all the sums which constitute the judgment in the civil case should be seen as joint liabilities and treated accordingly when considering any distribution between the husband and wife. 61. As will appear later in the judgment this argument is somewhat illusory anyway as if I determined that the£40,000 + of additional liability, or the interest in particular, it would alter the distribution so that ‘needs’ would come into play in any event.”
“112. Thus as it happens the application of the sharing principle provides a figure of£209,695 and applying the needs principle for the [Respondent] reaches a figure of£210,270 . 113. On either basis the [Appellant] will end up with assets of between£154,00 and£155,000 which will not enable him to purchase a property of the same value as the [Respondent] unless he can raise a small mortgage of about£27,000 . He says that is impossible but there is no evidence from a broker about that (despite a court order) […] I am not convinced it would not be impossible for him to raise such a sum largely because I am not convinced that I have a full picture of his income. Anyway to some extent he is the author of his own misfortune as the decision to retain the boat has had a significant financial consequence which could have been avoided. He is determined to keep the boat and thus would not be able to be rehoused anyway.”
“As to the terms of the loan, I am not satisfied on the evidence that there was agreement reached other than the broad one that the Claimant would provide a loan to his friends on the understanding that it would be paid back in a reasonable timescale. I do not find on the balance of probabilities test there was any specific agreement on the precise date of repayment or any other terms including that of any applicable interests.”
“Therefore, in summary: I find that a loan was provided as opposed to a gift; and that this loan was both to the First and Second Defendants as opposed to just the First Defendant.”
“The discrepancy in their end position is largely due to the costs of the civil claim which the husband had incurred in seeking and failing to establish that the loan from SC was a gift and was to [the Respondent] alone even though he accepted that the monies were used for a joint purpose.”
“On either basis he will end up with assets of between£154,000 and£155,000 which will not enable him to purchase a property of the same value as the wife unless he can raise a small mortgage of about£27,000 ”