(Court of Appeal; Sedley, Jacob and Wilson LJJ; 9 July 2009)
The marriage broke down after 40 years. The husband and wife, both retired, agreed that their capital and income should be divided, as far as possible, in equal shares. However, they did not agree on how much money needed to be paid to the wife in order to achieve this. The district judge awarded the wife a lump sum of ?35,356, including a payment of ?15,000 intended to reflect the disparity between the wife's income and the husband's income during the separation period, during which the wife had had to use capital funds for living expenses. The husband appealed this award, arguing that it involved double counting. When the court file was placed before the circuit judge for directions, the circuit judge referred the papers to the district judge for his comments. The district judge duly wrote to the circuit judge, providing background information about the hearing, and disputing many of the husband's grounds of appeal. At the appeal hearing the circuit judge gave both parties a copy of the letter from the district judge, and added that he had spoken to the district judge, who had assured him that there had been no double-counting. The circuit judge went on to reject the husband's appeal. The husband was granted permission to appeal the decision of the circuit judge. The district judge then wrote to the husband's solicitors, purporting to set out the 'correct position' and asking that the Court of Appeal be informed.
The conduct of the appeal by the circuit judge had been procedurally improper, and the Court of Appeal would conduct a fresh appeal from the district judge. An appellate or reviewing court could not properly take into account matters separately advanced by the judge by way of justification of his or her decision. The circuit judge should not have communicated with the district judge about the substance of the appeal; having communicated with the district judge, the circuit judge had clearly been correct to have informed the parties so fully and clearly about the content of the communications, but he should not have allowed the communications to occur in the first place. The circuit judge certainly should not have used the district judge's comments as reasons for the dismissal of the appeal. It was no exaggeration to state that the district judge had been allowed to participate in the dismissal of an appeal from himself. While colleagues working in close proximity might sometimes be tempted to discuss appeals in this way, a circuit judge must build a Chinese wall between himself and a district judge in relation to a pending appeal. There was only one exception to that principle: in a case in which a litigant had been appearing in person, it would be permissible for an appellate judge who perceived a possible failure to address issues or to explain reasoning, to extend to a district judge an invitation to amplify the district judge's judgment, because this was an invitation that, if the litigant had been represented, might have been extended by the advocate. Patently, however, the enquiries of the district judge made by the circuit judge in this case did not fall within the exceptional category. In any event, although not properly argued before the circuit judge, it was clear that the district judge had been guilty of double-counting. In dividing the capital between the parties, the judge had already taken account of the fact that, because of the husband's higher income during the separation period, the wife had been required to expend greater capital than the husband in order to spend the same on living expenses. Had the wife not expended this capital, the amount of her capital at the time of the hearing would have been greater, and the balancing payment to her from the husband would have been correspondingly smaller. Generally speaking, application of the sharing principle did not require the court to conduct an exercise of charting disparity of income between the parties during the years following separation, as the essential exercise of sharing the currently held assets, whether in equal or in unequal proportions, already neatly catered for such disparity. It had been unwise of the district judge to send a letter in respect of the appeal to the Court of Appeal. It undoubtedly required self-restraint for a judge to let an appeal against his judgment proceed or be opposed on a basis that the judge believed to be false, but the judge had no right to be heard. The judge must leave it to the advocates to ensure that, so far as the terms of the judgment or the formal court documents did not themselves keep the record straight, the superior court was not misled, and the professional duty of candour resting on counsel and solicitors was correspondingly high.