Milton v Milton

In ancillary relief proceedings, fairness governs both the amount of a lump-sum award and its implementation. An exceptional delay in payment must have sufficient justification and remain within the court’s discretionary ambit. General difficulties in the mortgage market, taken by judicial notice, do not by themselves justify keeping the recipient out of an award for an unusually long period where the payer has substantial assets and earning capacity. The appellate court may shorten the payment period or impose interest. Where shortening the period provides the simpler and fairer solution, it should be preferred.

The appellant sought permission to appeal an order made by District Judge Brasse in ancillary relief proceedings on 6 December 2007. The order required the respondent, his former wife, to pay him £60,000 to achieve a clean break, but allowed 36 months for payment.

He challenged the amount, the absence of security, and the length of the payment period. The Court of Appeal considered the quantum and security arguments unsustainable. The central issue was whether the exceptional delay in payment was justified.

1. Permission and disposition. Lord Justice Thorpe granted permission and, with the respondent’s agreement, treated the hearing as the substantive appeal. Lord Justice Wall agreed. The order below was varied.
2. Scope of fairness. Fairness in ancillary relief applies not only to the quantification of the award but also to the implementation of the court’s order, including the time allowed for payment.
3. Payment period. The district judge had allowed 36 months for payment on the basis that the respondent needed time to re-establish herself, obtain a mortgage and meet lending difficulties in the prevailing economic climate. That reasoning did not sufficiently justify holding the appellant out of his entitlement for so long. Judicial notice of general difficulties in the mortgage market was insufficient, particularly where the respondent had a solid asset and an earning capacity capable of supporting a £60,000 mortgage.
4. Appellate remedy. The court could either shorten the payment period or leave the period intact while requiring interest. The simpler and fairer solution was to shorten the period to the anniversary of the judgment below, 6 December 2008.
5. The court observed that, if unforeseen future circumstances arose, the payer could apply for an extension.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 926, permission was granted, the appeal was heard immediately, and the payment date was brought forward to 6 December 2008.
• Clerkenwell & Shoreditch County Court: District Judge Brasse ordered payment of £60,000 within 36 months as part of a clean-break order on 6 December 2007.