I don’t recall ever coming across a judgment like JL v SL (No 3) previously. The judgment concerned an application by counsel for the wife for ‘post-judgment relief’, following Mr Justice Mostyn’s judgment on the wife’s appeal against a financial remedies order.
To explain in a little more detail, on the 7th of October last Mr Justice Mostyn allowed the wife’s appeal against the original financial remedies order that had been handed down by a District Judge. Now, normally on allowing an appeal the appellate court will proceed to ‘exercise the statutory discretion anew’, i.e. re-decide the case and substitute its own decision for the original – in this case, making a fresh financial remedies order to replace the order made by the District Judge. However, here Mr Justice Mostyn was not in a position to do so as two ‘significant events’ had occurred since the District Judge’s order had been made. These meant that more information was required before a final decision could be made. Accordingly, the hearing was adjourned until the 12th of February.
The hearing took place and on the 16th of February Mr Justice Mostyn sent out his draft judgment to counsel for each party, seeking any typographical or other corrections of a serious nature by the following day. Neither counsel sought any corrections, although counsel for the wife mentioned that she was out of the country. Accordingly, the judgment was finalised and handed down on the 18th of February.
On the 25th of February 2015 Mr Justice Mostyn received from the wife’s counsel a lengthy request for amplification of the calculations that led him to his decision and of the reasons for making that decision. Despite declaring that this was “totally unacceptable”, he responded to the request by handing down a further judgment, the subject of this post, on the 9th of March.
Without going into detail, it appears that the essential reason for the request was that the wife considered that Mr Justice Mostyn’s order was unfair as she had only won a ‘pyrrhic victory’ when she succeeded in her appeal, the end result being no more favourable, or less favourable, towards her than the District Judge’s original order.
Mr Justice Mostyn gave this idea short shrift. Firstly, he said that it was quite wrong to assume that just because the wife succeeded in overturning the original award because of an error of approach by the District Judge, that the re-exercising of the judicial discretion on the correct approach would necessarily result in a markedly ‘better’ outcome for her. Secondly, and in any event, it was not necessarily correct that the wife was not in a better position after his order.
The latter point requires a little more explanation. Under the original order the wife was to receive spousal maintenance, which over a period of ten years was to total some £400,000. Mr Justice Mostyn did not award the wife maintenance. Instead, he awarded her an extra £384,400 capital on a clean break basis, with the intention that the wife should live off of the income earned by the capital. On the face of this, it would appear that the wife was doing less well under Mr Justice Mostyn’s award, but he pointed out that the maintenance was not of course fixed and could be reduced, should the husband’s finances deteriorate (the husband had, in fact, lost his job). In the circumstances, said Mr Justice Mostyn, “as a result of the appeal the wife is in a more secure, stable and independent position than she was before.”
In the circumstances, the application for post-judgment relief was rejected.
As I said at the outset, I’ve not come across a case quite like this before. Obviously, judges routinely send out their draft judgments to counsel for checking, but my understanding was that that was essentially to do with typographical or minor errors. What happened in this case was almost akin to an appeal – suggesting that the judge had been in error and that his final decision was therefore flawed. I don’t know whether this sort of thing is commonplace, but I can’t imagine that many judges would be very pleased by having their decisions questioned in this way.
The full judgment can be read here.