H v T (Judicial Change of Mind)

An appellate court may allow a judge to correct an error or omission in a draft judgment before it is handed down, even where the correction changes the outcome. A judge has a duty to correct an error that would otherwise produce an unjust result.

In financial remedy proceedings, fairness rather than mathematical equality is the governing objective. Equality is a cross-check, and a departure may be justified where the parties’ assessed needs require it. The court may consider all matrimonial assets, including pensions, when assessing the resulting division. An appellate court should not interfere where the first-instance decision meets the identified need and falls within the available discretion, even if another structure or distribution might have been chosen.

H appealed against financial remedy orders made by HHJ O’Dwyer following the parties’ divorce. The first-instance judge awarded the wife a lump sum and permitted her to retain a foreign property, producing a division of the matrimonial assets in her favour. The husband argued that the award made an excessive departure from equality, particularly because he was also required to meet substantial child maintenance, school-fee and childcare obligations.

Before judgment was handed down, the appellate judge reconsidered a draft conclusion that the wife’s housing need had been exceeded. Further submissions established that purchase costs had been included in the first-instance calculations. The central issues were whether the judge could change his mind before handing down judgment and whether the first-instance capital distribution was wrong under the appellate test.

1. Appeal dismissed. The first-instance decision was not shown to be wrong under FPR r 30.12(3). The court also invited the parties to submit a draft order.
2. A judge may reconsider and correct an error or omission in a draft judgment before it is handed down. The court applied L and B (Children) [2013] UKSC 8, which rejected any requirement for exceptional circumstances. A judge has the courage and intellectual honesty, and therefore the duty, to correct an error where leaving it uncorrected would be unjust.
3. Under Part II of the Matrimonial Causes Act 1973, the objective is fairness, not mathematical equality. Equality is an aid and cross-check. It is not a rule or presumption. A good reason is required for departure, and assessed need can provide that reason.
4. The first-instance judge was entitled to treat the case as one of need, identify a housing requirement of £1.25 million plus purchase costs, and conclude that the wife’s need justified a departure from equality. The husband’s substantially greater income was also a relevant circumstance.
5. Pensions formed part of the matrimonial assets for assessing the overall division. A modest discount might sometimes be appropriate because pensions can be illiquid and subject to taxation, but that issue was not determined.
6. The reasoning below was less than clear and did not fully explain the effect of the husband’s child-related expenditure or the reduced mortgage capacity resulting from retaining the foreign property. Nevertheless, the award met the wife’s assessed housing need precisely. The first-instance judge had heard the evidence concerning the importance of retaining that property and was entitled to adopt that structure. Another judge might have ordered its sale, but the chosen course remained within the discretion available.

• High Court (Family Division): On appeal from HHJ O’Dwyer sitting at the Central Family Court, the husband’s appeal against the financial remedy order was dismissed.