Brisset v Brisset

Once a judge has delivered judgment, the case is ordinarily complete. A trial judge must not participate in an appeal from that judgment, whether by correspondence or discussion with the appellate judge. The limited exception is an invitation to clarify or amplify an inadequately reasoned judgment, particularly where a litigant in person would otherwise lack an advocate to make that request. An appellate court must decide the appeal from the judgment and formal record, not from the judge’s later explanations.

In ancillary relief proceedings, equal sharing of assets ordinarily takes account of the parties’ different post-separation use of capital. The court should generally identify and value assets held at the substantive hearing, with appropriate consideration of their source, timing and any dissipation. A further adjustment for the same disparity of income may therefore amount to double-counting.

The husband appealed to the Court of Appeal from an order of His Honour Judge Sleeman, sitting in the Reigate County Court, which dismissed his appeal from a District Judge Beck order for ancillary relief. The parties had agreed in principle to an equal division of their capital and income on a clean-break basis, but disputed the balancing lump sum. The district judge fixed it at £35,356, including a net £15,000 adjustment for alleged disparity in income and expenditure after separation.

On the appeal below, the circuit judge obtained written and oral comments from the district judge about the substance of the appeal and relied on them in dismissing it. The central questions were whether that procedure was permissible and whether the district judge’s adjustment involved double-counting.

1. Appeal allowed. The Court of Appeal treated the husband’s appeal as requiring it to step into the circuit judge’s shoes. The circuit judge’s communications with District Judge Beck about the substance of the pending appeal, and his reliance on those communications, were procedurally improper. The district judge had effectively been allowed to participate in the dismissal of an appeal from his own decision.
2. The ordinary rule is that, once judgment has been given, the judge has finished with the case. A judgment is the complete public record of the reasons for the decision, and an appellate court cannot take account of separate explanations later advanced by the judge. The recognised exception is a request to clarify or amplify reasons where the judgment has failed to address an issue or explain its reasoning. That exception did not cover the enquiries made here.
3. The district judge’s £15,000 net addition for post-separation disparity of income and expenditure was an error of double-counting. Under the sharing principle explained in Charman v Charman (No 4) [2007] EWCA Civ 503, the court ordinarily identifies and values assets at the substantive hearing. It may consider their source, timing and any assets no longer held, including alleged wanton dissipation. Generally, however, it need not chart post-separation income disparity because the parties’ currently held capital already reflects the different amounts each has had to spend.
4. Fresh evidence concerning the parties’ current income did not justify reopening the remainder of the determination under Myerson v Myerson [2009] EWCA Civ 282. The parties nevertheless agreed a payment of £2,500 in full and final settlement of claims concerning substantial works to the matrimonial home, leaving the balancing lump sum at £22,856.
5. Wilson LJ delivered the leading judgment. Jacob LJ agreed with both judgments and emphasised that a judge cannot become involved in the appeal process. Sedley LJ agreed and stressed judicial independence, impartiality, the public completeness of judgments and the necessary separation between lower tribunals and appellate courts.

• Court of Appeal (Civil Division): [2009] EWCA Civ 679 — allowed the husband’s appeal and reduced the balancing lump sum to £22,856.
• Reigate County Court, His Honour Judge Sleeman: dismissed the husband’s appeal from District Judge Beck’s ancillary relief order.
• District Judge Beck: ordered a balancing lump sum of £35,356 in ancillary relief proceedings.