Case No: B4/2008/0431
B4/2008/0431(A)

Neutral Citation Number: [2008] EWCA Civ 926
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL & SHOREDITCH COUNTY COURT
(HIS HONOUR JUDGE BRASSE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17th July 2008

Before:

LORD JUSTICE THORPE
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Between:

	MILTON
	Appellant	
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MILTON	
Respondent	

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THE APPELLANT APPEARED IN PERSON

Mr S Gill (instructed by Messrs Lloyd Platt & Co) appeared on behalf of the Respondent.

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Judgment
Lord Justice Thorpe:

1.	This is Mr Milton’s application for permission to appeal the order of District Judge Brasse of 6 December 2007, given in ancillary relief proceedings in which Mr Milton in person was the applicant and the respondent former wife was represented by Mr Gill.  

2.	It is unnecessary to go into any of the history.  I can accelerate to the judge’s order, which was to the effect that a clean break could be fairly achieved by ordering the respondent to pay the applicant £60,000; to quote from the judgment: “but I shall allow her thirty-six months to pay that sum in”.  Mr Milton was dissatisfied with features of this outcome.  He thought he should have had £75,000 and not £60,000.  He thought that thirty-six months was altogether too long a period, particularly since there was no provision for interest during that long interim.  He thought that the judge should have secured his lump sum lest the respondent should have either fallen on perversity or taken steps to avoid enforcement.  So, belatedly, he issued a notice of application in this court, which appears to have been filed on perhaps 23 or 25 February and maybe sealed a day or two later -- a notice of application that was of course plainly out of time, and Mr Milton has sought to explain that by saying, well, Christmas intervened.  He is a litigant in person, and anyway he endeavoured to improve his position by negotiation.

3.	The application for permission was heard by my Lord without notice, and he directed an oral hearing at which the respondent was to be represented.  We have conducted that hearing this morning and Mr Gill, who appeared below, has assisted us with a skeleton argument and with oral submissions.  Mr Gill does take the time point perfectly properly, but we are liberal in overlooking delay on the part of a litigant in person, and for myself I would not dismiss this application on a delay point.  

4.	Of the three points that Mr Milton has advanced, only one seems to me to be of substance.  Quite clearly there is nothing in the quantum point; the judge perfectly well explains why he chose £60,000 rather than £75,000.  There is nothing in the security point since Mr Milton did not apply for security below; therefore as a matter of principle it is not for us to impose it.

5.	His one point is the exceptional length of time which the district judge gave the respondent in order to discharge what I think I can fairly call her indebtedness to Mr Milton.  He did recognise in paragraph 73 of his judgment that the former wife, Mrs Milton, had been unable to work for a period because of stress of proceedings and stress in her job.  However, the district judge was sanguine.  He said: “I am satisfied on the balance of probabilities that once the pressure is off there is no reason why she should not return to work”.  That forecast was fulfilled because we are told by Mr Milton, and Mr Gill accepts on instructions, that Mrs Milton returned swiftly to her former employment.  So why the quite unusual period of thirty-six months in order to discharge the debt?  The explanation is only to be found in paragraph 88 where the judge says:

“In order to raise the money she would have to obtain a mortgage, but in the circumstances I find it would be a modest one, which she would have the means to repay if she resumed work.  I accept that she would need time to re-establish herself in order to obtain a mortgage, particularly in the current climate.  I take judicial notice of the well-publicised fact that mortgages may now become more difficult to obtain in view of the credit difficulties which have beset the City of London and indeed the wider world.  But a person with a solid asset as Mrs Milton has, and an earning capacity, in my view could raise a £60,000 mortgage, which would represent less than three times what I estimate to be her earning capacity of £23,000 a year.”

6.	Judicial notice of difficulties in the mortgage market is not, in my opinion, a sufficient justification for holding Mr Milton out of his entitlement for such a long period.  I do not imply any criticism of the district judge, since it may very well be that with an applicant in person the point was not really challenged and argued out before him.  Although this is listed for permission only, Mr Gill has sensibly accepted that if any variation is required we should extend today’s listing to treat it as an appeal immediately following any grant of permission.  

7.	So for my part I would grant permission, since I am not persuaded that such a long delay can be said to fall within even the generous ambit of the discretion.  The variation to be made to introduce fairness -- and I add that fairness applies not only to the quantification of the award, but also to the implementation of the court’s order -- could be achieved in one of two ways: either we can shorten the period for payment or, alternatively, we could leave the exceptional length but impose an interest provision.  Mr Gill has tentatively expressed a preference for the latter, but I have reached the conclusion that that is to introduce unnecessary complexity.  The simplest solution, and in my judgment the better solution, is to abbreviate the period within which this debt should be discharged, and I would take simply the anniversary of the judgment below, namely 6 December 2008.

8.	Obviously, if unforeseen future circumstances arise it would always be possible for the payer to apply to the court for an extension.  As we sit here today it seems to me to be a perfectly achievable target and one that should be achieved in the interests of overall fairness.

Lord Justice Wall:  

9.	I agree.

Order:  Application granted