AZ v BZ (Financial Remedies Appeal) [2020] EWFC B8622 May 2022
Published: 20/11/2023 13:14
https://www.bailii.org/ew/cases/EWFC/OJ/2020/B86.html
HHJ Vincent. Appeal by H of a financial remedy order where on a clean break basis the assets were divided 99/1 in favour of W. The asset pool was modest, mostly made up of equity in a Spanish holiday home of c.£195k, some small pension funds and miscellaneous chattels including a BMW worth £18.5k. In 2015, W had received a sum of £550k in settlement of a claim against the NHS for clinical negligence; this sum had been spent in full by the time of the final hearing. The judge at first instance concluded that W’s need outweighed H’s.
H appealed on seven grounds, including the following:
- The outcome was unfair because it departed so dramatically from equality;
- The judge went too far in making allowances for W’s status as a litigant in person; and
- The judge misdirected herself in asking whether one party’s needs ‘outweighed’ the other.
The appeal was allowed. HHJ Vincent concluded that the judge at first instance fell into error in allowing W to admit a twelve-page extract from a piece of advice she had received from counsel in respect of her previous negligence claim. Although a judge has discretion to admit late evidence, there was no opportunity for H to sufficiently challenge it, and the late evidence wasn’t directly relevant. Barton v Wright Hassall LLP [2018] UKSC 12 considered.
In regard to departure from equality and needs, HHJ Vincent concluded that the judge at first instance fell into error in (i) her assessment of the parties’ respective needs and (ii) in concluding that W’s needs outweighed any consideration of H’s needs. The award at first instance was considered unfair in all the circumstances. Marshall v Beckett [1998] 1 FLR 52; and White v White [2000] 1 FLR 981 applied.
HHJ Vincent set aside the first instance decision and substituted her own outcome on the basis of, inter alia, proportionality in light of the delays plaguing the courts. The equity in the Spanish property was divided equally, meaning that W would remain in a slightly better position than H because her pension pot was slightly larger and she had a car worth £18.5k. This led to an overall split of 60/40 in W’s favour.
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