Brisset v Brisset: Instructive

I've often bemoaned the fact that most Court of Appeal ancillary relief reports concern high-net worth cases that are of little relevance to the more mundane fare that most practitioners deal with most of the time. The reason for this is, of course, that only the wealthy can afford to go to the Court of Appeal. Well, last night I read the report of Brisset v Brisset [2009] EWCA Civ 679, which involved parties of more modest means. How were they able to afford to go to the Court of Appeal? The answer is that they weren't. They did not represent themselves (although they had done in the courts below) but were both represented by counsel who acted pro bono, including Miss Maria Scotland (hopefully her new chambers will soon put a picture of her on her CV page on their website), who I have instructed many times myself. Miss Scotland was instructed by the Bar Pro Bono Unit - something that occurred in one of my own cases, when my client was no longer able to afford to instruct my firm and was not eligible for legal aid.

Lest anyone should think that pro bono representation is somehow a second rate service, let me quote from the judgment of Lord Justice Wilson in Brisset: "Short though the hearing before us was, the performance of both counsel was outstanding. Indeed the hearing was short because counsel's submissions, written and oral, were so clear, so succinct and so realistic." Lord Justice Sedley was of the same opinion: "I agree with the judgment of Lord Justice Wilson, not least in relation to the high standard of representation and advocacy before this court."

So, what of the case itself? It concerned a husband's appeal against an ancillary relief order. However, before I deal with this, a little about the route to appeal. The original appeal from the district judge had gone before the circuit judge, who promptly sent the file back to the district judge for his comments. The district judge replied with an eleven paragraph letter explaining his reasons for his decision, and the circuit judge then used the district judge's comments as reasons for the dismissing the appeal. Needless to say, all of this came in for criticism by the Court of Appeal. Lord Justice Jacob perhaps putting it the clearest: "once she or he has given judgment (subject to being asked for clarification or to deal with a point which ought to have been dealt with) a judge who has given judgment has finished with the case. She or he may take the private view, if reversed, "Lord forgive them for they know not what they do". But what a judge cannot do is get involved in the appeal process itself. That is what happened here, albeit with the best of intentions. It was a mistake which vitiated the appeal process itself."

OK, so to the case itself. The parties had been able to agree equal division of assets, and had agreed how this would be achieved in every respect save for the amount of a balancing lump sum to be paid by the husband to the wife. The wife had had a lower income during the four-year period since the separation, which she had made up from her capital. The husband claimed that the district judge had been guilty of double-counting, in that he had shared the currently held assets but also awarded the wife an additional lump sum in respect the capital that she had used since the separation. The husband was, of course, correct and the Court of Appeal therefore reduced the amount of the lump sum. Lord Justice Wilson: "the result of the wife's greater expenditure of capital during the period was to reduce the amount of her capital in comparison with that of the husband at the time of the hearing and thus to enlarge the size of the balancing payment to be made by him to her." I do not, however, criticise the district judge. Double-counting is an easy mistake to make - I can recall many occasions over the years when I have struggled with the logic of such a situation, having to resort to a bit of mathematics to resolve the issue.

All in all, an instructive case.