Rapp v Sarre [2016] EWCA Civ 93: appealing an order after having failed to properly participate in the proceedings

Each time that Black LJ rejected one of the husband’s grounds of appeal, she made at least some reference to the husband’s non-engagement in the proceedings. For example:   

• Mr Rapp complained that he had been allocated a disproportionately high amount of risk laden assets, contrary to Wells v Wells [2002] EWCA civ 476. This was rejected. As well as pointing out that Mr Rapp had sufficient investment knowledge to manage the higher risk assets, Black LJ referred to Mr Rapp’s failure to advance any evidence to allow the judge to consider an alternative distribution;
• The husband’s argument that his pre-acquired assets had been insufficiently taken into account was in part rejected by the Court of Appeal due to the husband having failed to request a different treatment of the relevant assets in his Form E, or advance an argument on that basis at any time after that;
• Mr Rapp suggested that it was wrong for HHJ Everall QC to attribute a greater level of need to the wife. He argued that the needs of the parties were the same and, in any event, an equal division of assets of this magnitude would inevitably cater to both parties' needs. One of the most interesting aspects of the Court of Appeal’s decision was its reference to how, even in a £13.5m case, need remains a flexible concept which is referable to the standard of living during the marriage. Again, though, Mr Rapp’s failure to properly take part in the proceedings was referred to by the court. Black LJ pointed out that while W had provided a detailed budget, H had provided no budget at all (H having simply drawn a line through part 3.1 of his Form E), 'leaving the judge to do the best he could to forecast what [the husband’s] needs might be and to ensure that his order would leave the husband with sufficient for them'. 
• Mr Rapp argued that the court should have taken into account his US tax liability. The Court of Appeal rejected this because the husband’s sole reference to the liability consisted of an oblique comment made during his oral application for an adjournment of the proceedings on the final day of the trial. The Court of Appeal ruled that this was insufficient to put the court on enquiry.
• The husband alleged that the order was flawed because it was based on out of date property valuations. Black LJ rejected this on the basis that the judge had not been obliged of his own motion to require a more up to date valuation of the properties. The values had been agreed between the parties, albeit a number of months previously, and the husband had not sought to go behind that. 
• The husband’s failure to engage was even referred to in relation to the issue which the court did not consider necessary to consider in detail, namely the conduct/add-back point. Black LJ commented that 'it seems to me undesirable to engage with this issue in a case where there has not been a full exploration of it at first instance, involving evidence and submissions from both parties'.