EL v ML

Assessing the facts of the case as I have found them to be against the relevant statutory criteria and case law guidance, I have reached the clear conclusion that I should accede to Mr Calhaem's case that the relevant parts of the order of DDJ Todd, which were suspended, discharged or varied downwards by DJ Cronshaw in 2021, should be reinstated. I am inclined to reinstate the order in the same terms, as a global maintenance order for the same term ordered by DDJ Todd (in practice likely to be C leaving university). The figure of £5,344 pcm appears to be accepted as being mathematically correct when CPI up-ratings are taken into account. I take the view that this should be backdated to 1 st August 2023, the first day when the husband had full monthly pay. I include in the reinstatement the bonus obligation as it was included in 2019 - accordingly my order (being backdated) will cover the bonus received in March 2024, the cap of £61,734 not yet having been reached.

I regard the husband's suggestion of there being justification on the facts here for an immediate clean break as being hopelessly optimistic. With the wife in the parlous financial position that she is, I could not possibly conclude that she is currently in a position to adapt without undue hardship to a termination of her financial dependence on the husband. Further, it would be wrong for me to impose a section 28(1A) bar with effect from the end of the current maintenance term for the same reason.

I am not, however, minded to accede to Mr Calhaem's further suggestion that I should override the termination provisions in the DDJ Todd order and simply now extend the term to a joint lives order. In so doing I am cognisant that I may be opening up the possibility of a further application for an extension in four or five years' time and, in view of all the litigation there has been, this is not an attractive possibility (although, if there is another dispute in the future, the parties should think carefully about what Non-Court Dispute Resolution options they have open to them - litigation is not the only option!). I cannot today say with any confidence what the position, as C reaches the end of his tertiary education, will be. Many things might have happened in the meantime, and I think it would be wrong for me in 2024 to undermine the scheme of the DDJ Todd order of 2019 which planned an end to dependency in 2028 or 2029. An extension must be a possibility, but is not an inevitability as Mr Calhaem has suggested, and an extension would not necessarily be to a joint lives order. In my view it would be premature for such a decision to be made at this stage.

I have been invited to deal also with a number of tangential matters, which I do as follows:-

I indicated to Counsel in argument that I would send out a written judgment by email and that I would give a provisional view on costs within the judgment and, if either party didn't agree with my provisional view, it would be open to them to make further written submissions. I set out my provisional view below.

The variation application itself is subject to the provisions of FPR 2010, Part 28, which provide a starting point that the court will not make an order requiring one party to pay the costs of the other party; but that the starting position can be departed from on one or more of a number of bases which are:-

FPR 2010, PD 28A provides: " The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs ."

In relation to the enforcement application made by the wife on 1 st August 2024, Mr Sear argues that the Part 28 protection does not apply (he is correct about that) and that the wife has not succeeded in making out her case and that, accordingly, the husband's costs incurred on that should be paid by the wife. His N260 suggests a disaggregated figure for that part of the exercise at £8,050.

On balance I have reached the provisional view that there should no order as to costs, for the following reasons:-

I am sending this written judgment out by email today, on 11 th September 2024. This is intended to be the handing down of the judgment and the 21-day appeal period will run from today.

I invite Counsel to draft an order which follows from this judgment. I am hoping this will not be a controversial exercise, but in the event that there are disputes then I will try and deal with them by email communication in the first instance. If absolutely necessary, I will convene another hearing, but I am keen to avoid the further incurring of costs if that is possible.

Could I ask that Counsel, by 18 th September 2024, either send me an agreed draft order or an indication of the disputes or an explanation as to why there is a delay in resolving this.

th September 2024

This judgment is intended to be a supplement to my judgment of 11 th September 2024, dealing with costs issues and various drafting issues which have arisen since my initial judgment.

In my initial judgment I indicated to Counsel in argument that in my judgment I would give a provisional view on costs and, if either party didn't agree with my provisional view, it would be open to them to make further written submissions.

My provisional view, having set out some statutory provisions, was as follows:-

Both parties did make further submissions on costs and I have carefully read what both Mr Calhaem and Mr Sear have said on this subject and my attention has been drawn to a letter dated 18 th April 2023 which I had not previously seen.

In the light of these submissions I have been persuaded (against my provisional view) that I should make an inter partes costs order in the wife's favour in the sum of £30,000. I have reached this conclusion on the basis that, having looked at the matter afresh, I think the wife's early instincts (which are evidenced by her open letters of 18 th April 2023 and 7 th February 2024) were, in essence, to reinstate the DDJ Todd order and no more (albeit that neither letter is entirely clear or uncaveated in this respect). The husband made no concession to that effect and at no stage in this matter since the outset has he come close to making that concession (openly anyway). I am not minded to think that the wife should have all her costs because she has pursued a number of matters (outlined in my initial judgment) in relation to which she was not successful and the husband has had to defend himself against these arguments, sometimes expensively. From 19 th February 2024 onwards she was always seeking an additional remedy for something else (capitalisation, a joint lives order, a higher payment from the capital items, enforcement etc.) which muddied the position. So the figure of £30,000 is the figure which I think is appropriately discounted from her full claim.

I shall therefore order that the husband shall make a contribution to the wife's costs assessed in the sum of £30,000, such sum to be paid by 30 th November 2024. I shall order that there be interest in default at the court judgment rate, currently 8% per annum.

The drafting process has thrown up a number of drafting disputes. I am sending with this supplemental judgment a copy of the order I propose to make.

I have included the definition of 'bonus' which represented Mr Sear's secondary position. In the period since the original DDJ Todd order was made, bonus payments have become increasingly caveated (for example by a deferment in payment or a deferred stock option) so it is appropriate (in reflecting the spirit of the DDJ Todd order) to update the definition of bonus to include monies arising from such bonus awards.

I consider that the £18,000 plus interest should be paid by 23 rd September as the husband explained that he had saved this money in a specific account such it is immediately available. Hence the date in paragraph 9 of the order. The other payments (paragraphs 3 and 5) can await 3 rd October.

I have approved a hybrid version of the school fees order in paragraph 8 to reflect the fact the various arguments which have appeared in the submissions.

I am sending this written judgment out by email today, on 19 th September 2024. The order will carry this date. I had intended the 21-day appeal period to run from 11 th September, but since I have made some fresh decisions (and to avoid having two different appeal periods) I will extend the appeal period to 21 days from 19 th September, i.e. 10 th October 2024.

I finish by thanking Counsel for their helpful input and to wish Mr and Mrs L all the best for the future, I hope a future without further litigation.

th September 2024