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Case Summary: AR v ML [2019] EWFC 56

10th October 2019

Kate Strange, Pupil, 1 Hare Court

This was an appeal by H, heard by Mostyn J, against an order made by DDJ Morris on 8 April 2019 which adjourned a final hearing - after it had concluded and the judge had delivered an ex tempore judgment - in order to provide W with an opportunity to provide new evidence to the court so that the judge may alter her initial judgment. Mostyn J allowed the appeal, and considered the principle of finality in litigation, particularly in the context of financial remedies. He went on to strongly condemn the practice of counsel, after judgment has been given but before an order has been sealed, to attempt to persuade the judge to change their mind and substitute a different judgment. It is a useful judgment for practitioners to understand the extent of, and limitations to, the so-called ‘Re L application.’

The parties married in 2011 and separated in 2016. W had a 12-year-old child, M, from a previous relationship, who the parties treated as a child of the family. W commenced an application for financial remedies on Form A in April 2018, and the parties attended an unsuccessful FDR in November 2018, at the conclusion of which DJ Gibson made an order with directions for final hearing. The order included a provision concerning housing particulars: each party was to serve copy estate agents particulars of properties on which they wished to rely at the final hearing and that they consider to be suitable to meet their own and M’s housing needs, and the housing needs of the other party and M, limited to 5 of each, by 24 January 2019.

By the final hearing, the net assets had been calculated to be £908,000. H’s open proposal was that W should receive some assets and retain her pension so that she had a total of £444,000, or 46% of the assets. W’s open proposal was that she should receive £600,000 from which she would pay debts of £63,000, leaving her with £537,000 with which to purchase a property, as well as retaining her modest pension, so that she would have a total of £603,000, or 66% of the assets (a position that Mostyn J described at paragraph 26 of his judgment as ‘ambitious.’) W justified this proposal by reference to her housing needs, which she asserted were £525,000.

Each party had complied with the directions in the November 2018 order, and accordingly, each had provided housing particulars. H’s particulars for properties suitable for both parties ranged from £325,000 - £369,950. W’s particulars for properties suitable for her were all in the Crouch End area, and had asking prices ranging from £585,000 - £600,000. The gap between the top of H’s particulars and the bottom of W’s particulars was therefore some £215,050. Further still, even the least expensive of the properties put forward by W were some £60,000 more than the £525,000 which she stated was her housing need.

At the conclusion of the trial, DJ Morris gave an ex tempore judgment. She was critical of the evidence put forward by W regarding her housing need, which she regarded as inadequate. DJ Morris found that neither party had a mortgage capacity, and it was not certain that either would in the future. On W’s own evidence, it was not possible for her to remain in Crouch End, despite her clear wish to do so. W had accepted in her evidence that she had been unable to find any properties in the area for £525,000. The fact that W had failed to provide property particulars for any area other than Crouch End, which was plainly not affordable, led DJ Morris to conclude that W had not looked at the financial realities of rehousing after divorce. Overall, DJ Morris was satisfied that W and M could be reasonably rehoused with a housing fund of £410,000. In total, after her debts were paid and including her pension, W’s funds were £478,000, or 49% of the total assets.

Following the oral judgment, W’s counsel stated that W wished to appeal, and accordingly, sought clarification of the judge’s findings about W’s housing needs in terms of area and cost (per Practice Direction 30A, paragraph 4.6). A long discussion followed, which ran to some 44 pages of the transcript. W’s counsel’s questions about W’s housing needs eventually developed into a ‘Re L’ application – that is, an application for the judge to alter her decision before an order had been drawn up and perfected by being sealed by the Court. W’s counsel argued that the matter should be adjourned for a few weeks before final judgment, in order to give both parties an opportunity to put forward housing particulars in Crouch End and surrounding areas for properties between £410,000 and £525,000, so that the judge may alter her view about W’s housing need.

DJ Morris acceded to W’s counsel’s request, deciding that she would not make the judgment she had just given into a sealed order nor consider it her final decision, but rather give the W the opportunity to put forward the fresh evidence about her housing needs, and for each side to examine the other on this point and make further submissions. She accepted that this evidence should have been put before her before this point, and that her decision would probably frustrate H, but noted that “I do have an overwhelming duty to do justice and in this case that means looking at this wife, this husband and this child.” H appealed.

In his judgment, Mostyn J began by considering the case for which so-called ‘Re L applications’ are named, ‘Re L and another (Children) (Preliminary Finding: Power to Reverse) [2013] 1 WLR 634L. In that case, there had been a fact-finding hearing in the context of care proceedings to determine whether a child’s injuries were non-accidental, and if so, to identify the perpetrator. During the course of the hearing, it was accepted that the injuries were not accidental, and that the only possible perpetrators were the mother or the father, each of whom accused the other of being solely responsible. At the conclusion of the hearing, the trial judge gave a short oral judgment stating that on the balance of probabilities, the father was the perpetrator. Two months later however – before the order had been sealed - the judge gave a more detailed written judgment in which she reversed her decision and held that on the balance of probabilities, she could not determine whether the mother or the father had caused the child’s injuries. The mother appealed to the Court of Appeal that the initial judgment should stand, and was successful. The father then appealed to the Supreme Court.

The Supreme Court held that the power of a judge to reverse their decision at any time before their order was drawn up and sealed was not limited to exceptional circumstances. The overriding objective required that the courts deal with cases justly, and at times, this may require that the judge revisit their initial decision. In considering altering the decision however, the Court must consider factors including whether one party had already acted upon the decision to their detriment (an estoppel argument), whether the court had made a mistake or a relevant fact or point of law had not been brought to the court’s attention, or if a new fact had emerged after the initial judgment. It could also be appropriate however for a judge to simply, upon careful reflection, change their mind, since every case would depend upon its particular circumstances. The Supreme Court held that the power for a judge to change their mind must be exercised judicially and not capriciously, and all parties must be afforded the opportunity to address the judge on the matter.

In his analysis of Re L, Mostyn J noted at paragraph 8 of his judgment that “an evaluation has to be made as to whether there is good reason to depart from the principle of finality which is inherent in the delivery of any judgment.” He accepted that in the field of financial remedies, there are some exceptions to the finality principle, which are set out in Practice Direction 9A at paragraph 13.5, and that the principle cannot apply as strongly when an order has not been perfected. He distinguished between the present case and Re L, which featured a “bona fide change of mind” (paragraph 15), and commented that “there has never been a case where a successful challenge to a delivered judgment has been achieved on the basis of fresh evidence which could have been made available to the court first time round” (paragraph 16), as DJ Morris had appeared to allow by permitting W to submit further housing need evidence in this case.

Mostyn J concluded that in the context of financial remedies, where finality is of great importance to the parties, “it is right and proper that a due diligence requirement should be imposed in a financial remedy case where a Re L application is made to revisit the judgment handed down on the basis of fresh evidence which was not placed before the court first time round” (paragraph 21). In his judgment, the imposition of such a requirement was in keeping with the finality principle. Referring to the memorable speech of Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 that “the trial is not a dress rehearsal. It is the first and last night of the show", Mostyn J went on to state at paragraph 22 of his judgment that “to allow litigants to treat the trial as a dress rehearsal and to seek a further performance on the basis of new evidence which could, with due diligence, have been supplied first time round sends a terrible message to prospective litigants […] The idea that there could be a re-run of the case at the suit of a disappointed litigant on the basis of evidence, yet to be obtained, but which could have been obtained, is appalling.”

Applying this analysis to the facts of the case, Mostyn J held that DJ Morris had erred in altering her initial judgment, stating at paragraph 38 that “there was no good reason shown why the judge should depart from the terms of her judgment. There was no reference to the principle of finality. There was no reference to the concept of due diligence. 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, to which the judge should not have succumbed.” He went on to refer to further instances of counsel attempting to persuade the judge to revisit their decision after delivering judgment, referring to this tendency as a ‘seemingly ineradicable syndrome’, and quoting a condemnation of the practice by Francis Bacon dating as far back as 1625.

The appeal was allowed, and the initial order of DJ Morris – which adjourned the matter and allowed W to produce fresh evidence of her housing needs – was set aside. The trial judge was directed to make a final order incorporating and reflecting her initial judgment.