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You can’t have your kayak and eat it

(And yes, I did decide to write this one up because I couldn’t resist that joke)

Green v Adams 2017

This was a hearing following Mostyn J’s decision on mother’s application for financial provision for her child under Schedule 1 of the Children Act 1989. Mostyn J had made an order for such provision. The father appealed, unsuccessfully.

Subsequently, the father made an application to Court, aided by Dr Pelling (a name familiar to a lot of family practitioners he has actually had a lot of success as a MacKenzie Friend, including this somewhat pyrrhic victory but victory nonetheless of establishing that an assistant tipstaff assaulted him http://www.bailii.org/ew/cases/EWHC/QB/2004/492.html . I always enjoy a case with Dr Pelling in it – he really knows his way around the more obscure corridors of the law and when I refreshed my mind about the 57 cases that Bailli name-checks him in, he actually succeeds and is complimented for his manner and ability quite a lot of the time, and similarly, Mostyn J enjoys a good legal conundrum, so this had potential to be a fascinating judgment. Sadly, it disappoints, save for the kayak)

The father made an application that the Judge had in effect added things into the ‘pot’ that mother had not explicitly claimed for, that is the costs of a trip to China and the cost of a kayak. And that further, the figures that the Judge had calculated for these were too much, and that the lump sum father was ordered to pay was therefore too much.

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/52.html

These two further points were, first, that the true cost of the trip to China referred to in my judgment of paragraph 1(iii) was £2,300 (which he had established by an email from the school) and, second, that the true cost of a kayak was no more than £500 (which he had established by Internet research). Therefore, he argued that in respect of these two items my assessment had been overstated by £350 and £300 respectively, a total of £650.

16.Accordingly, Dr Pelling argued that my lump sum of £20,600 was overstated by a total of £2,450 (i.e. £1,800 plus £650).

The Judge reminded himself that he did have the power to make awards for more than a person had actually sought.

However, I agree with Dr Pelling that if I was minded to go outside the field of battle as defined by the parties then the father should certainly have been given notice of my intention to do so. In any event, after having examined my memory, and even allowing for the considerable passage of time, I am satisfied that I did not intend to award the mother the full amounts and that I made a minor mistake. It is right that my judgment should be amended to reflect what I intended. Therefore paragraphs 1(ii) and (v) will be corrected to provide that the mother’s claim was for half the sums mentioned, namely £1,500 and £300.

19.However, on 13 July 2017, after the hearing and at a time when this judgment was largely completed, I received an email from Mr Holden which stated that the parties’ son had changed his mind about going on the educational trip to Israel this summer. Therefore, the mother would no longer pursue this head of claim and will repay the sum awarded.

20.The position is very different in relation to the claims concerning the China trip and the kayak. Here, the mother gave her best estimate of the historic costs. It was open to the father to challenge those figures and to adduce competing evidence. He did not do so and now is arguing that the court made its award on a mistaken basis. In my decision of DB v DLJ [2016] EWHC 324 (Fam) at paragraph 57 I stated at (ii) and (iii) that the claimant (that is to say the father in this case) must show that the true facts would have led the court to have made a materially different order from the one it in fact made, and that the absence of the true facts must not have been his fault. In my judgment, a correction in respect of these two items of £650 does not satisfy the criterion of a material difference and in any event I am not satisfied that the true facts could not have been placed before me by the father. I do not allow these corrections.

21.My conclusion is that the mother must repay to the father £3,300 (i.e. the full amount of the Israel trip – £3,000, and half the cost of the computer – £300) against which I offset her award of costs made above of £857, leaving the sum of £2,443 to be repaid.

There was also an application that the judgment should be anonymised, but we can all deduce what the conclusion of that was from the name of the case.

22.I now turn to the father’s application for further anonymisation of the main judgment. He says that the extent of anonymity given by me to the properties in paragraph 14 of my judgment is not enough, and that fictitious numbers and initials should be given. He says that there is a risk of jigsaw identification and a real danger of the people who live at those addresses been targeted by criminals. I am slightly surprised that this submission should be made by the father through Dr Pelling having regard to their trenchant resistance to any form of anonymisation in the proceedings in the Upper Tribunal heard by Mr Justice Charles and reported publicly as Adams v SSWP and Green [2017] UKUT 0009 (AAC). However, I am not satisfied that any further anonymisation is necessary, and this request is rejected.

(Seriously, I really did select this case on the basis of the kayak pun. I’m here all week, try the chicken)

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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