D. -v- D. [2015] IESC 16 (26 February 2015)

Judgment


Title:	D. -v- D.
Neutral Citation:	[2015] IESC 16
Supreme Court Record Number:	323/14
High Court Record Number:	2006 47 M
Date of Delivery:	26/02/2015
Court:	Supreme Court
Composition of Court:	Denham C.J., Clarke J., MacMenamin J.
Judgment by:	Clarke J. MacMenamin J.
Status:	Approved


Judgments by	Link to Judgment	Result	Concurring
Clarke J. MacMenamin J.	Link	Other (see notes)	Denham C.J.

Notes on Memo: Allow Cross Appeal and vary amount in High Court order.

___________________________________________________________________________

THE SUPREME COURT

[Appeal No: 323/14]

Denham C.J.
Clarke J.
MacMenamin J.

In the Matter of the Judicial Separation and Family Reform Act, 1989

and

In the Matter of the Family Law Act, 1995

Between/

M.D.

Applicant/Respondent

and

N.D.

Respondent/Appellant

Joint Judgment of Mr. Justice Clarke and Mr. Justice MacMenamin delivered the 26th February, 2015.

1. Introduction
1.1 The consequences of marital breakdown can be difficult enough for parties without complex, protracted and consequently expensive litigation. Unfortunately, the matrimonial litigation with which this judgment is concerned ticks each of those boxes. Against that general background we have taken the opportunity, in the course of this judgment, to make some general comments on good practise in matrimonial proceedings involving significant assets and other resources. It should immediately be understood that those comments are intended to be of a general nature, and do not necessarily reflect on what occurred in this case. We have commented, where we consider it appropriate, on the history of this case, but only where it is necessary to understand and deal with the specific issues with which the court is now concerned.

1.2 It will be necessary to address certain aspects of the course of these proceedings to date in a little more detail. However, for present purposes, it is important to note that this matrimonial dispute has already been the subject of a determination in the High Court, an earlier appeal to this Court as a result of which certain issues were remitted back to the High Court, a further decision of the High Court and this appeal. In addition, there have been a number of other interlocutory applications, which themselves required significant court time and must necessarily have involved in significant time and expense for the parties. It is necessary to reiterate two simple truths; numerous court applications and especially appeals in family law cases worsen already frayed relationships, but additionally and necessarily will diminish the assets available for apportionment between the parties. There is a strong public interest, therefore, in achieving the highest degree of certainty and clarity in courts of first instance dealing with these sensitive cases.

1.3 As a result of the earlier decision of this Court to which reference has been made, very narrow questions were remitted back to the High Court for decision. The matter was previously before this Court on the 11th April, 2011, resulting in a judgment and order on the 7th June of that year. (See D. v. D. [2011] 2 ILRM 385). First, this Court affirmed the previous order of the High Court directing the sale of certain farmlands. Thereafter, Denham J., speaking for the court, said that the matter should be remitted "to the High Court so that any further orders in relation to the sale may be made by that court. On the sale being completed, the High Court may apply the principle of equality to the assets so that each party achieve an equal share, including a lump sum for the respondent. It will be for the High Court to determine how the assets are divided so as to achieve that equal share; this is a matter for the learned High Court judge".

1.4 Thus, what was remitted to the High Court was the management of the sale of the relevant farmlands and, thereafter, a division of the assets of the parties on the basis of equality. There were some difficulties concerning the sale of the relevant farmland (on which it will be necessary to touch) but, in any event, as a result of a further significant hearing, the High Court ordered that a lump sum payment of €848,683 be made by the respondent/appellant ("Mr. D.") in favour of the applicant/respondent ("Ms. D."). It is against that order that Mr. D. has now appealed to this Court. It should, however, immediately be recalled that the only matter which was before the High Court when these proceedings were remitted back was the question of distributing the assets of the parties on the basis of equality. All other issues between the parties, insofar as they arose, must be taken to have been determined as a result of the original decision of the High Court and the earlier decision of this Court on appeal. The only substantive issues which, therefore, arise on this appeal are as to whether it has been demonstrated that there was an error in the approach of the trial judge in allocating the combined assets of the parties on the basis of equality. In addition, the costs of the High Court rehearing are subject to appeal, but that question has been left over until the appeal on these substantive questions has been determined.

1.5 In addition to the appeal brought by Mr. D., Ms. D. has also cross-appealed on the basis of alleging other errors on the part of the trial judge. Thus, the specific set of issues with which the court is concerned on this appeal involves a range of individual points made respectively by both of the parties designed to suggest that the lump sum payment directed by the trial judge did not reflect the equality determined by this Court. There is also an appeal against the High Court order in respect of costs, but that issue has been left over until the substantive issues have been determined. However, before going on to consider the specific substantive issues raised by the parties, it is necessary to identify the starting point which, as will become apparent, is itself a matter of some difficulty.

1.6 In a schedule attached to his judgment delivered on the 4th July, 2014, Abbott J. identified a balancing sum of €807,621.50 as being necessary to bring about equality between the assets of the parties. The order actually made was, as already noted, for a sum of €848,683 to be provided. One of the first matters which must be addressed is, therefore, the discrepancy between the written judgment of the trial judge and the court order actually made.

2. The Adjustments
2.1 We include with this judgment, as Schedule 1, the schedule which was attached to the judgment of Abbott J., to which reference has already been made. As can be seen from that schedule, the method adopted by the trial judge was to list, under each heading, the total assets and, where appropriate in respect of each heading, what are described as the wife's assets. The total assets as per that schedule came to €2,921,409, and the wife's assets, without any balancing sum, to €553,083, thus appearing to require a balancing sum of €807,621.50 to bring about any equal division of assets.

2.2 It should first be noted that there is an error of calculation in that schedule for, on the basis of the figures therein contained, the balancing sum should actually be €907,621.50. That is no more than a mere error in calculation.

2.3 However, in addition, it transpires that, after judgment was delivered, counsel on both sides made submissions as to various items which, it was said, had not been taken into account in the schedule even though they either were not contested at the hearing or were the subject of findings in the body of the judgment. This Court has been referred to a transcript of what transpired. As a result of an analysis of that post-judgment hearing, which was conducted during the appeal by counsel on behalf of Ms. D., it seems fairly clear what the adjustments made actually were.

2.4 We have annexed, as Schedule 2 to this judgment, an adjusted schedule which, it will be seen, includes three further items, being the addition to the total assets of the parties of the sums of €62,123 and €120,000, arising from, respectively, "shares and investments" and "lands near house". On the side of the wife's assets, a sum of €150,000 is also included, which is referable to a payment on account. The context of that latter inclusion is that, as a term of a stay granted earlier in the proceedings, Mr. D. had been required to make such a payment on account. Each of those matters was referred to in the course of the submissions made by counsel for one side or the other in the aftermath of the delivery of the High Court judgment. It will be seen that their inclusion in the schedule, in the manner set out in schedule 2 to this judgment, gives an exact calculation of the balancing sum in the amount of €848,683, which is the sum specified in the court order as finally drawn up. This Court has no doubt, therefore, that the basis of the calculation which ultimately found its way into the court order is as set out in the Schedule 2.

Consistency between Judgments and Court Orders

2.5 However, we do not feel that we can leave this aspect of the case without making some general comments. First, it seems to us that it is important that there can be no question of inconsistency in the official records of the results of a court case. It is, of course, entirely understandable that in difficult cases (including, but by no means confined to, family law cases involving complex assets or resources) questions may be raised after a judgment as to the precise calculation which should be included in the final order of the court. It is understandable that, in such cases, items may be omitted from the final calculation even though they have been fully dealt with by the trial judge in the course of a judgment, and it also occurs from time to time that some minor aspect of the case is overlooked in the course of a judgment and needs to be dealt with. The comments which we are about to make should not, therefore, in any way be taken as implying that there is a difficulty with the parties addressing the court post-judgment for the purposes of drawing to the court's attention any matters which may have been omitted in the context of such a calculation, or where it may be said that the calculation itself is inaccurate. In that context, it was entirely proper for counsel to seek to have the error of calculation, to which we have referred, corrected. Likewise, it was entirely proper for counsel on both sides to address the various issues which this Court has inferred were taken into account in conducting a revised calculation based on the post-judgment hearing.

2.6 However, we feel that some comment is required in respect of the fact that the court's record was left with a judgment, in the form in which it was originally delivered, (and which was ultimately certified in that form as the judgment for the purposes of this appeal) which is inconsistent with the court order made. As already noted, there may well be circumstances where it is appropriate to adjust calculations after judgment has been delivered. But where that happens, some proper record of the revised calculation should be put on the court record in a formal way so as to ensure that there is no apparent inconsistency between the trial judge's judgment, on the one hand, and the formal order of the court, on the other. There are a number of ways in which this can be done, and it does not seem to us that it particularly matters which method is adopted. A judge might, for example, readjust a judgment to reflect such changes before approving it, and thus, it becomes the official judgment for record purposes. In such a case, the judgment would be brought into conformity with the court order to be made. Alternatively, the judge could produce a short addendum to the original judgment specifying the changes, the reasons for them, and the true calculation which is going to form part of the court's order. If the matters raised post-judgment actually gave rise to any controversy, it might be appropriate for the trial judge to deliver an additional brief judgment to deal with those issues. But the important point to make is that there must be some proper and formal record of any adjustment to a written judgment so as to ensure that there is no apparent inconsistency between that judgment and the order ultimately made.

2.7 We will return to the issue of good practise in family law cases involving complex assets or resources at a later stage. However, for present purposes, the court is satisfied to work on the assumption that the calculation which gave rise to the actual order of the High Court under appeal is, in substance, to be found in Schedule 2. The individual issues which were canvassed on both sides in this appeal, respectively, (which suggest that the Schedule 2 figures should themselves be adjusted) will be identified and dealt with in due course. However, before we progress to discuss that matter, the Court notes that there was one issue raised on behalf of Ms. D., concerning the way in which the sum included in the actual court order was calculated, which formed part of the grounds of cross-appeal on her behalf. That issue concerns the methodology by which the payment on account to her was treated in the context of adjusting the original schedule to reach the figure ultimately included in the court order. We, therefore, turn first to that question.

3. The Payment on Account
3.1 As noted earlier, it is clear that the question of some allowance being made for the payment on account was raised in the post-judgment submissions and observations of counsel. For the reasons already identified, we are completely satisfied that the way in which that payment on account was treated, post-judgment, in calculating the amount to be included in the court order, is as per Schedule 2.

3.2 However, counsel for Ms. D. argued that the methodology is incorrect. In simple terms, he says that while it was appropriate to give Mr. D. credit for the fact that he had made that payment to Ms. D., the sum concerned should also have increased the total assets of the parties and, thus, increased the total share of those assets to which Ms. D. would have been entitled on the basis of equality. In simple terms, counsel argued that if it were proper to include the relevant sum of €150,000 as an additional asset of Ms. D., then it followed that the total assets available should also have been increased by that sum. It seems to us that the analysis of counsel in that regard is correct.

3.3 There is one issue which does, however, need to be touched on. In order to explain the point, we propose using round figures from which the calculation will more readily be understood. Assume that a court directed a 50/50 split of assets in circumstances where the husband had assets of €1 million and the wife concerned had no assets. Assume also that the husband had been required, prior to the hearing, to make a payment on account of €200,000. In those circumstances, when the case came to trial, one might expect that the husband would have €800,000 in assets and the wife €200,000. A simple calculation would show that the wife would be entitled, in order to achieve an equality of assets, to an additional payment of €300,000.

3.4 However, that calculation assumes that the payment on account was still held by the wife at the time when the assets came to be valued. If it had been spent or disposed of, then the assets, as of the time of the trial, would have appeared to have been €800,000 on the part of the husband and zero on the part of the wife. However, it would, in those circumstances, be appropriate to attribute the €200,000 payment on account as an asset of the wife to be taken into account, thus leaving the calculation back in the place where it had been, with the total assets being valued at €1 million and the wife being entitled to an additional payment of €300,000.

3.5 We make this point to draw attention to the fact that it was not suggested on behalf of Ms. D. that any of the assets included in Schedule 1 as being attributable to her represented that €150,000. Given that, with the exception of a small sum of €15,673, all of her assets were property, it seems likely that the monies had been expended in the intervening period. It is important to make this point, because if the value of the payment on account was already included in the assets contained in the schedule (by, for example, being deposited in a bank account which appeared in that schedule) then it would, of course, have been a double count to include the sum again. It is only in the context of that sum having been paid over, and having been, thus, regarded as part of the assets of the couple, but no longer being represented otherwise in the schedule, that it is appropriate to add it as an additional asset. However, given that it is, for that reason, appropriate to add it as an additional asset, it follows that it needs to be added not only to the schedule of Ms. D.'s assets but also added to the total. We would, therefore, propose making an adjustment to Schedule 2 to reflect that error in calculation.

3.6 The remaining issues which arose on the appeal concerned the way in which the trial judge addressed certain of the assets. We propose dealing with each of the points raised in turn. However, before doing so, we wish to make some comments on what we consider to be good practise in the context of family law cases, or at least those which involve complex assets or resources.

4. Good Practice
4.1 The range of issues which can arise in matrimonial proceedings are, of course, wide and varied. Questions concerning the legal entitlement of either party to divorce or to legal separation can arise. Determining the position of young children, and resulting issues of custody, access and related matters, is often difficult. In respect of financial provision the type of issues which may arise are almost endless. In some cases, the parties may have very limited resources. In others, the resources may be clearly defined, and their value easily ascertained. A case in point might involve a couple whose only significant asset is the family home, and whose only income sources are their respective jobs.

4.2 The suggested good practice, which we now wish to consider, is really only concerned with cases which involve provision issues of at least some level of controversy or complexity. Such cases can, in themselves, present a wide range of different types of scenarios. There may be disputes as to the existence, ownership or valuation of assets or other financial resources. Liabilities may be contested. How assets were acquired (if potentially relevant to the issues before the court) may feature.

4.3 Even when a full picture emerges as to all of the available resources (including, where necessary, the court adjudicating on controversial issues such as those which we have described) there may still be important questions as to the level of provision which should be provided and the way in which provision is to be made. All elements of potential provision are, to a greater or lesser extent, interconnected. A party in whose favour an order for significant maintenance is made may not be entitled to the same capital provision. Someone whose future is protected by a pension adjustment order may be entitled to less under some other heading. In complex cases, questions can arise as to whether it is prudent to deal with assets in a particular way. If other means are available, then the sale of a family home while children are at a delicate stage in their education may properly be avoided. A business which is providing a significant income for a family as a whole may properly be kept intact if it would not be prudent to either sell it or break it up. Perhaps in the latter case a capital provision might be ordered, which would be anticipated to come from capital extracted from the business or borrowings made secured on it, but only to the extent that such an imposition might be regarded as both fair and prudent. By raising all of these points, we do not suggest that there are necessarily any easy answers to the question of proper provision in many types of cases. The points mentioned are but some of the range of issues which can arise, and their resolution will, necessarily, be highly dependent on all the circumstances of the individual case.

Identifying the starting point; what are the available resources

4.4 But, as this appeal demonstrates, an important starting point has to be the ascertainment and valuation of all of the relevant resources. Such a valuation does not, in many cases, solve problems of the type which we have identified. But even in those cases it is a necessary starting point so that the court has a definite overall picture, which represents the backdrop against which both the scale and nature of proper provision can be determined.

4.5 Parties are, of course, required, as part of pre-trial procedure, to specify their assets and other resources in the form provided for in the Rules of Court. Frequently, at least in complex cases, the parties will have employed experts to deal with the relevant assets. There may be disputes, as there were in this case, about the value of certain assets. The proper treatment of assets or other resources may be in controversy.

4.6 It seems to us, therefore, that in any but the most straightforward of resources cases, good practice requires that the court be presented, in the simplest possible way, with the competing positions of the parties on the available resources issue. We propose to deal with assets as an example, but a similar obligation seems to us to also arise where there is any complexity about income or matters such as pensions or future income streams which may need to be taken into account.

An Assets Schedule

4.7 In our view, good practice dictates that, in advance of a contested hearing, both sides put together, in a single and simple schedule (preferably on one page), a list of all of the assets which either side contends should be taken into account by the court in its overall assessment of proper provision. It is important to emphasise that good practice does not require the parties to agree any aspect of such a schedule, although, of course, the maximum possible agreement in advance of a trial works to everyone's advantage, not least the parties, by reducing the costs of the trial. But the inclusion in such a schedule of, for example, a particular valuation of a particular asset asserted to be owned by a wife, does not involve the wife concerned either in agreeing that the asset is hers, or that it can properly be taken into account, or that it has the valuation asserted. It simply records one side of the case. In the other column, representing the wife's position on that asset, there might be a lesser sum (if the valuation is contested, or it is suggested that some other feature of the asset needs to be taken into account which has an effect of diminishing its value) or zero, (if the wife denied that the asset was hers at all).

4.8 The production of such a schedule specifying each side's case would have, in our view, the considerable advantage of concentrating the minds of all parties on the true issues in controversy, and also affording the trial judge a ready checklist of the issues which need to be resolved prior to a full picture of the available resources becoming clear. It would minimise the risk of items being left out of any calculation at a later stage. It would provide the parameters for any dispute.

4.9 Importantly, it seems to us, it would also provide a clear focus for the submissions (both written and oral) and evidence which the parties are required to place before the court.

4.10 For the avoidance of doubt, it does not seem to us that such a schedule is the appropriate place for either side to include its argument in favour of any particular position in respect of a relevant asset. That can be done elsewhere. To return to the example given earlier, the submissions put in on behalf of the relevant wife might set out why the wife contends that the relevant asset is not hers, or is subject to significant liabilities which need to be taken into account, or is not as valuable as asserted or, indeed, any other reason which contested the legitimacy of its inclusion in the manner contented for by the husband. But the place for those arguments is in the evidence and the submissions, not in the schedule.

4.11 For assistance, we have included, as Schedule 4, a draft of a possible schedule which will, necessarily, have to be adapted to meet the circumstances of any individual case.

The position of the parties in writing

4.12 It also seems to us that, in addition to such schedule or schedules, the parties should, at the commencement of the trial, place before the court at least two additional pieces of information in writing. We will deal with the question of costs later in this judgment. However, an estimate of the costs likely to be incurred should be provided by both parties in conjunction with the relevant schedule or schedules, and this should be set out in an itemised way in accordance with the comments which we make under the costs heading,. Furthermore, each party should specify what it says would be proper provision in the light of the overall picture of the assets and other resources which emerges from the relevant schedule or schedules. Indeed, it might be said that a simple statement in like form, delivered in writing before the trial begins, would be of benefit in relation to any other significant issue of controversy such as custody. The adoption by the parties of such formal positions before the commencement of the trial may well assist the court in determining where the burden of costs in relation to the conduct of the trial should lie.

4.13 Furthermore, we suggest that appropriate pre-trial case management procedures should ensure that the various documents which we have suggested be prepared are actually in place in advance of the commencement of the trial. Those management procedures should also attempt to detail with some reasonable precision the length of time which each element of the case is expected to take. In the absence of unexpected developments it is reasonable for a trial judge to keep the parties to such estimates or to reflect any failure so to do in costs or an adjournment. It is important to emphasise that significant overruns in the length of matrimonial cases eats into the available resources.

4.14 Finally, we must comment that, in addition to resolving any disputed questions about the scale of resources available to the parties out of which proper provision is to be made, it would be good practice if, in deciding on the amount of provision to be actually ordered in the circumstances of the case, the trial judge approached that question by specific reference to each of the various subsections of the relevant legislation which specify the matters which should be taken into account in determining such provision. In the context of judicial separation, such as the proceedings currently before this Court, the matters identified in s. 16 of the Family Law Act, 1995 ("the 1995 Act") should be specifically and individually addressed. Likewise, in the context of divorce, the matters set out in s. 20 of the Family Law (Divorce) Act, 1996 ("the 1996 Act") should likewise be specifically addressed.

4.15 Against those general observations it is next necessary to turn to the specific issues which arise on this appeal. However, in order to place those specific issues in context, we propose to say a little more about the history of these proceedings to date. Therefore, we, turn to that history.

5. The Proceedings to Date
5.1. By order of the High Court (Abbott J.) of the 11th December, 2008 (“the First Order”), the parties were granted a decree of judicial separation. As part of the financial provision specified in that order, Mr. D. was required to pay Ms. D. a lump sum of €2,853,000. In that context, Mr. D. was required to sell so much of certain lands owned by him as might be required to pay that sum. In making that order, the High Court had held that the total family assets, comprised mainly of farm land, was worth approximately €7,835,000. The High Court order contemplated that there would be an equal division of the assets achieved by the payment of the relevant lump sum.

5.2 When this matter came on appeal before this Court (Denham, Macken and McKechnie JJ.) (“the First Appeal”), it was argued that, owing to the fact that by then there had been a catastrophic collapse in property prices, matters had arisen since the date of the First Order which had so affected the basis upon which the First Order had been made that its provisions no longer constituted proper provision. It was suggested that such was the extent of the drop in the value of the land owned by Mr. D. that the order to pay the lump sum of €2,853,000 would not then constitute an equal division of the assets, and that such a sum was not capable of being met through the sale of the relevant land or, indeed, at all. Mr. D. sought that further evidence be allowed to be given on appeal in respect of the fall of the value of the relevant lands since the date of the First Order.

5.3 This Court held that while, in general, it is slow to interfere with a finding of fact of the High Court, the issue which had by then arisen did not stem from a finding of fact as such, but rather arose from facts which had emerged since the First Order in the form of the collapse in property values. On the question of new evidence and its effect, the Court held, at para.25, that:-

“I am satisfied that the new evidence is relevant, and should be given consideration and due weight. Having considered it, I would admit the evidence as not to do so would result in an injustice. I am satisfied that the value of the agricultural lands has fallen dramatically since the High Court order was made. The effect of this material change and unforeseen event is that the scheme created by the High Court to divide the assets equally by use of a lump sum funded from the sale of agricultural lands is incapable of being performed as it is currently determined. While both the principle of an equal share of the assets to both spouses and the use of a lump sum may still be applied, this must be done according to the reality of the situation as it exists now.”

5.4. It is worthwhile reiterating, even at this stage in 2015, the basis of this Court’s decision. Denham J., speaking for the Court, stated, at para. 22:

“The principle of an equal division of the assets, determined by the High Court, is not under review. That principle stands. The second matter is that of the lump sum. The learned trial judge was entitled to make a lump sum order. However, the fabric of the judgment of the learned High Court judge is incapable of being performed as he planned because of the collapse of the value of agricultural land and the assumptions made as to its value by the High Court, which are no longer valid. The sale of agricultural land based on those assumptions was the only mechanism by which the lump sum payable to [ Ms. D.] could be achieved.”

(Emphasis added)

5.5. Having considered the evidence which addressed the diminution in land values at the time, Denham J. held, at para. 29:

“Consequently, I would allow the appeal. I would set aside the order of the High Court requiring [Mr. D.] to pay to the respondent a lump sum of €2,853,000.00. I would affirm the order for sale of the farm lands of 205 acres.

I would order that sale to proceed and make such necessary orders as are required. I would remit the matter to the High Court, so that any further orders in relation to the sale may be made by that court. On the sale being completed, the High Court may apply the principle of equality to the assets so that each party achieve an equal share, including a lump sum for the respondent. It will be for the High Court to determine how the assets are divided so as to achieve that equal share; this is a matter for the learned High Court judge.

”

(Emphasis added)

5.6. Denham J. then added, at para. 30:

“I reiterate my initial words to the parties at the commencement of this appeal, it would be to the advantage of the parties and their children if this matter could proceed by way of agreements rather than further litigation. It would be to the parties' benefit if this lengthy litigation could be brought to a conclusion by mediation and agreement.”

5.7 It is important, therefore, to recall that the specific issue, which was remitted back to the High Court, was confined to the question of determining how the assets of the parties, in light of the very significant drop in value, were to be divided so as to achieve equality. Whatever other issues may have been before the High Court, and this Court on appeal, up to that point in time, the only issue remaining for further determination by the High Court was that single question. In order to determine the answer to that question, it was, therefore, necessary for the trial judge to attempt to assess the overall value of the assets of the parties, and to determine the manner in which those assets should be divided in order to achieve equality. For the reasons already noted, the way in which the trial judge approached that question was to value all of the assets, and allocate a lump sum to be paid by Mr. D. to Ms. D. in order to bring about that position of equality. Most of the specific issues which arise concern individual items included or not included by the trial judge in that calculation.

5.8 However, as some of the issues arise out of events which occurred between the matter being remitted back to the High Court and the second substantive trial in the High Court, it is necessary to complete the relevant history of the proceedings to date by identifying certain aspects of the sequence of events which occurred during that period.

5.9 On the 15th September, 2011, the High Court (McGovern J.) had to deal with an application to prevent the sowing of crops on the land. That application has to be seen in the context of the clear intent in this Court's order that the lands in question be sold. On the 27th January, 2012, it was necessary for the court to intervene again, this time by way of Abbott J. making an order for sale of the land by joint carriage. One might well think that, if this Court’s ruling had been followed, such an application would have been unnecessary. By the 16th March, 2012, it was necessary, yet again, to apply to court concerning the sale. The High Court found it necessary to order that Ms. D. was to have the sole carriage of the sale. On the 21st May, 2012, Abbott J. had to make a further order that the land be sold by private treaty in accordance with advices to be given by auctioneers, H. T. Meagher O’Reilly. This was followed by Ms. D. making a complaint to the European Court of Human Rights in June, 2012 about the delay in the proceedings.

5.10 On the 27th July, 2012 Mr. D. applied to the High Court to vary the order for sale so that only some parts of the land should be sold. That application was refused by Abbott J. Thereafter, Mr. D. erected, or had erected, signs on the land objecting to the sale, on the basis that the lands had belonged to his family. The signs sought to put the blame for the sale on Ms. D. At the same time, a pile of hardcore was placed at the entrance gate, obstructing it. On the 1st October, 2012 Mr. D. gave an undertaking to remove this obstruction. On the 6th February, 2013, Ireland made a unilateral declaration that the length of the proceedings and the lack of an effective remedy were incompatible with Articles 6(1) and 13 ECHR. On the 7th May, 2013 Abbott J. made an order approving the sale of the lands. On the 11th June, 2013 there was a settlement of the European Court of Human Rights proceedings which was accepted by that court. On the 20th December, 2013 an application was made by Mr. D. to Abbott J. to recuse himself. The trial judge refused to do so. In January 2014, a five-day hearing took place concerning the matters which had been remitted by this Court. This was nearly three years after the Supreme Court had made its order in 2011. On the 27th June, 2014, Abbott J. delivered the judgment which is the subject of this appeal. On the 14th July, 2014, the order of the High Court was perfected and Mr. D. filed a Notice of Appeal. On the 18th July, 2014, Ms. D. filed a Notice to Vary. Mr. D. also sought a stay on the order from this Court. In that context, Ms D. contended that she was encountering significant financial difficulties.

5.11 A total sum of €1,747,500 had been received from the sale of the lands in question. Out of that sum, the court approved of certain disbursements and directed that the balance should remain on deposit at a bank.

5.12 This Court, (McKechnie J., MacMenamin J. and Laffoy J.), granted a stay on the order on the basis that €600,000 was paid to Ms. D. and €100,000 was paid to Mr. D. with those sums coming from the proceeds of the sale of the lands.

5.13 By the time this appeal came on for hearing, Ms. D. had received the €600,000 ordered to be paid out to her.

5.14 In the light of that history it is necessary to address the specific issues, which the respective parties raised, concerning the calculation of the assets conducted by the High Court.

6. The Specific Issues
6.1 Speaking broadly, six sets of issues required determination by this Court. These are:

(i) Ms. D. works in the Public Service. Is her pension “an asset” for the purposes of the Supreme Court judgment and order (“the pension issue”). Likewise, if it is not, should there be a deduction from Mr. D.'s assets because an amount of the sum included under "shares and investments" is said to have represented a pension;

(ii) Was the trial judge entitled to hold that the sale price of the relevant lands was reduced by the conduct of Mr. D., and if so, to require him to bear the entirety of the loss caused by that reduction, together with issues surrounding the inclusion or exclusion of other sums said to reflect the consequences of the delay in the sale of those lands (“the conduct issue”);

(iii) Was the trial judge correct, in calculating the value of the assets of the parties, to disregard what were said to be substantial liabilities for legal costs owing by Ms. D. to her solicitors and counsel (“the costs issue”);

(iv) Was the trial judge entitled to come to the valuation which he did with regard to property (“the valuation issue”);

(v) Was the trial judge correct in deducting from the price achieved for a property sold by Ms. D. a sum said to have been incurred in perfecting title to that property prior to sale ("the deduction issue");

(vi) Should a sum have been included in the calculation to reflect rents said to have been appropriated by Ms. D. ("the rents issue").

We propose dealing with each of those issues in turn.

(i) The Pension Issue

6.2. Counsel for Mr. D. submitted that the assets included in the trial judge’s calculation should have included a value attributable to Ms. D.’s pension. A number of authorities were cited from the United Kingdom, including Cowan v. Cowan [2001] 3 WLR 684, Court of Appeal; Martin- Dye v. Martin-Dye [2006] WLR 3448 and Brooks v. Brooks [1996] AC 375. Actuarial evidence was adduced on behalf of Mr. D. to the effect that Ms. D.’s Public Service pension had a capital value of between €700,000 and €900,000. No other evidence was called on that question. Having considered the submissions, the trial judge, citing s.16(2) of the 1995 Act and s. 20(2) of the 1996 Act, concluded that the task which had been remitted to the High Court was one which required the division of assets on the basis of equality. This, it was held, did not include “other benefits”, including “pensions”. Abbott J., therefore, concluded, at para. 26:

“[T]he argument that this Court had the obligation in deciding the division of the assets to consider the pension, that is the civil service pension, of [Ms. D.] as part of the pot of assets to be divided is not one which I find to be part of the remit of the court or part of the intention of the Supreme Court.”.

6.3 The trial judge also referred to his previous judgment in which he had isolated the question of pensions from other forms of provision in the case. He pointed out that this Court did not criticise that approach in any way. He went on to observe, at para. 27:

“Far from it, the Supreme Court positively mentioned in terms of art the division of assets not including pensions. There was no appeal in relation to the course and approach of this Court in the first instance of leaving the pension, the civil service pension, with [Ms. D.] on the basis of establishing ‘clear blue water’ between herself and her husband.”

Abbott J. went on to say:

“Although [Mr. D.], through Mr. Fitzgerald, argued that there was certain correspondence between the solicitors at a certain stage in response to a request by [Ms. D.]’s solicitors to ask what was outstanding, what are the issues outstanding in the appeal, the response from [Mr. D.]’s solicitors was that all matters would be outstanding. The fact is that a Supreme Court appeal is run and based and the procedure as founded upon a notice of appeal and if necessary notice of cross appeal and if parties want to expand their appeal they do not do it by correspondence. They may have some correspondence about it but ultimately the record of the Supreme Court should show the appeal in the form of a notice of appeal or an amended notice to appeal, - and that did not occur in this case. So, that argument that, somehow, the matter was considered by the Supreme Court and that they had implicitly reversed the decision of this Court to keep clear blue water between the parties in relation to [Ms. D.]’s pension was reversed by the decision of the court advising and directing the division of assets. Quite the contrary. One could not argue in favour of [Mr. D.] successfully in relation to that aspect.”

6.4. It must be recalled that the question which was remitted to the High Court was one which required that court to bring about an equality of "assets". It must also be recalled, as the trial judge pointed out, that, during the earlier hearing before him, he had dealt separately with the question of pension in a manner which had been commented on, but not in any way altered, by this Court in the course of the First Appeal. It is true, of course, that in determining proper provision on the facts of any individual case, a court is required to take into account all of the potential resources of the parties. Thus, provision in one form (by, for example, a requirement to make a periodic payment or a pension adjustment order) may properly affect the precise provision to be made in another form (for example, a requirement to make a lump sum payment or transfer an interest in an asset). But the question of the overall balance between the various forms of provision which might have been made in this case had been originally decided in the First Order, and had, subject to the one specific matter which had been remitted back, been definitively determined by this Court as a result of the First Appeal.

6.5. Given that there was specific mention of pension in the context of the hearing leading to the First Order and also at the First Appeal, it is clear that what this Court had in mind, when remitting back the issue of an equal distribution of assets to the High Court, was a definition of "assets" which did not include pensions.

6.6. The precise role which pension orders may properly play in an assessment of proper provision can often be a difficult and complex task. To an extent, in a straightforward case, it does not really matter whether a pension benefit is regarded as a capital asset, on the one hand, or a future income stream on the other. Indeed, strictly speaking, certain types of pension may fit more neatly into one or other of those definitions. A private pension fund which can, provided tax be paid, be cashed in may have some characteristics of a capital asset. An occupational pension entitlement, and in particular one deriving from the public service where there is no specific fund, may more closely resemble an income stream. But whatever the legitimate debate on those issues may be, it seems to us that, in the context of the very specific question which the trial judge was directed to address by this Court, a pension was not an asset for that purpose. The division of assets on the basis of equality, of which both the trial judge, when the case was first before him, and this Court, on the First Appeal, spoke, was clearly separate from the question of pension provision precisely because pensions had been separately considered by the trial judge.

6.7. For those reasons, we are satisfied that the trial judge was correct to exclude from his calculations any value attributable to Ms. D.'s public service pension. That pension was not an "asset" in the sense in which that term was used by this Court in earlier remitting the matter back to the High Court.

6.8 There may well have been some confusion at the hearing in the High Court in relation to Mr. D.'s pension. At the conclusion of his judgment, the trial judge said the following at para. 59:-

“On reflection, and in preparation of the following table, I omitted the husband's pension fund which, although more liquid, are nevertheless not ‘assets’ on the same basis as the wife's pension."

6.9 We would infer that the trial judge took the view that, having determined that Ms. D.'s pension was not an "asset" for the purposes of the exercise which had been remitted back to him, so also Mr. D.'s pension was not an "asset".

6.10 However, in the course of the hearing of this appeal, it was accepted by counsel on behalf of Ms. D. that a contention had been correctly made on behalf of Mr. D. to the effect that approximately €15,000 of the sum included in the trial judge's calculations in respect of "shares and investments" represented an investment in the form of a small pension fund. What appears to have happened is that in the course of the post-judgment discussions, to which reference has already been made, the attention of the trial judge was drawn to the fact that the original schedule did not include the "shares and investments" in question. As a result of the analysis already conducted in the course of this judgment, it is clear that the value of those "shares and investments" was, in fact, included in the calculation which led to the amount ultimately specified in the order of the High Court. However, it is now clear that part of that sum was, in fact, attributable to a pension held by Mr. D.

6.11 Given our view that the term "assets", as used by this Court in defining the matters to be remitted back to the High Court, did not include pensions, it follows that, for the purposes of conducting a final calculation of the lump sum which requires to be paid to meet the requirements of this Court's earlier order, a sum of €15,000 should be deducted from the amount specified in respect of such "shares and investments".

6.12 To that extent, we would propose that Mr. D.'s appeal, insofar as it relates to the failure of the trial judge to include in his calculation a capital sum referable to Ms. D.'s pension, should be dismissed. However, on the basis of consistency, the appeal should be allowed to the limited extent of making a deduction of €15,000 from the sum included in respect of "shares and investments".

(ii) The Conduct Issue

6.13 A number of connected issues arise under this heading. Some of these issues were described by counsel for Mr. D. as relating to what he termed "notional assets". In substance, the trial judge came to the view that the conduct of Mr. D. had contributed both to a delay in the sale of the lands, which were required to be sold as a result of both the First Order and the order made by this Court on the First Appeal, and had also led to a diminution in the price achieved for those lands when they were ultimately sold. On that basis, the trial judge included a sum of €180,000 as an additional asset attributable to what he found to be the shortfall in the price realised. Furthermore, the trial judge included a sum for what might be described as notional rent, referable to the delay in sale of the lands and, thus, the delay in Ms. D. receiving the lump sum to which she was entitled. In the broad context of this appeal, a number of specific issues arise under this heading as follows:-

(i) Was it appropriate for the trial judge to make adjustments in the "assets" of the parties in the manner in which he did;

(ii) Even if it was, at the level of principle, appropriate for the trial judge to adjust the value of the parties' assets to reflect the delay in sale and the price achieved in relation to the relevant lands, was the scale of the sums included in the trial judge's calculation correct;

(iii) Specifically, in relation to (ii), was the trial judge correct to attribute the entire diminution in the sale price to Mr. D.; and

(iv) Was the trial judge inconsistent in not allowing Ms. D. full credit for rents, which she said were incurred because of the delay, thus, on Ms. D.'s case, suggesting that the trial judge did not include a sufficient sum for notional rent.

6.14 Clearly, the first issue which requires to be addressed is to identify the findings of fact of the trial judge in relation to the circumstances which led to the delay in sale of the property concerned and what was found to be the diminished sale price achieved. The trial judge addressed these issues in the following passages:

“8. From the outset, the court was met- and this precedes Mr. Durcan’s involvement in the case, but the court was first met with a unilateral entry onto the land by the respondent was [sic] licensee for the purpose of sowing a winter grain crop with the ploughing of the lands very quickly and the sowing of the lands very quickly indeed, and there were a number of court applications in relation to that action. The sowing of the winter crop was presented as a fait accompli, and it was regarded by the court and the applicant as a matter which was not helping the sale, but the court proceeded on the basis that it was a matter that could be “lived with”. However, this action is something which becomes relevant to certain calculations in relation to figures later on, when I come to them.”

6.15 The judge continued:

“9. Notwithstanding that the difficult scenario that had already been set indicating that [Mr. D.] would not take the sale of the land lightly, and that he would object any way he could and perhaps to some extent be uncooperative on the ground, (as I might describe the sowing of the crop in the autumn of that year), the court nevertheless proceeded to appoint an auctioneer to conduct a sale. In fact there were two auctioneers, a local auctioneer in each instance, one engaged on behalf of [Ms. D.] and the other, Mr. Quirke (who remained in the case for a longer time), engaged by [Mr. D.]

10. It quickly emerged that Mr. Quirke had some notions about the saleability of the property but he became associated with a submission which was very strongly made by Mr. Fitzgerald on behalf of [Mr. D.] that a smaller quantity of land would be sold than was directed by the Supreme Court and basing it on a certain view of the case involving a sort of quasi-equitable relief by the-- for [Mr. D.]. The proceedings before the court eventually involved the court appointing the other local auctioneer to hold an auction. Mr. Quirke was sidelined by this stage (in terms of being actively involved in the auction). A certain amount of the land was put up for auction and the auction turned out to be without result, insofar as there were protests and speeches made and, in fact, it emerged during the course of this hearing in which Mr. Durcan has been involved, (that is the recent hearing following sale), that one of the people present at that auction was Mr. Barry Walsh who turned out to be one of the valuers appearing in the most recent hearing to give evidence on behalf of the respondent. Matters proceeded insofar as that attempt for an auction was aborted and eventually, the intrepid auctioneer who attempted to administer it, told the court that, because of his local involvement and because matters had become fraught, to say the least, he did not wish to proceed, and the court excused him from acting any further.

11. The court was then left with what had become a strong campaign from which the respondent disassociated himself. It was a campaign carried out against the applicant without a doubt, and using the claimed details and a particular view of the results of the litigation and the unworthiness of [Ms. D.] to actually recover in these proceedings what she was awarded by this Court and ultimately on appeal by the Supreme Court. The intestations of this campaign resulted in several applications being made on behalf of [Ms. D.] through the services of Mr. McDowell, and ultimately the court made injunctions against [Mr. D.] in respect of two matters, which Mr. Durcan has now used as an evidential base against the applicant. Amongst all the storm and pressure of protest that was going on and abundance of graffiti, placards, writing over of advertising placards and all the rest, two matters, Mr. Durcan, in a forensic way, picked to show that the sale (which was ultimately organised through the services of Mr. Meagher, another auctioneer, again with Mr. Quirke sidelined), that a sign which [Mr. D.] admitted he put up was put up by him, and that he also placed a load of gravel or filling in a gateway which had the effect of stopping or discouraging people from examining the land. There were colourable excuses put up by the respondent in respect of these two matters. Firstly, in relation to the sign, he stated that his protest and the sign that the applicant had misled the Supreme Court was true, and he sought to justify it insofar as he referred to matters referred to by her counsel in the Supreme Court. He also had justified or partially justified the sand and gravel by insisting that there were insurance issues and that in terms of people coming on the land where there was not insurance to cover them.

12. The history of the case is such that the court can find, firstly, there was a generalised campaign which it has been not possible to, (notwithstanding an anxiety on the part of the court to infer an involvement of [Mr. D.] directly), but which was carried on on behalf of his interest which had a frighteningly detrimental effect on the sale, and secondly, that he himself was involved in the two matters of the placard on a post and the gravel and thirdly, that in a generalised way, on the evidence of Mr. Meagher, who was the final auctioneer to arrange a sale of the property, that Mr. Meagher’s signs were the subject of graffiti.

13. The evidence of Mr. Meagher, (the last auctioneer), was that the sale was not helped by the general atmosphere of protest and that, on his affidavit evidence and further evidence given viva voce in court, he had indicated that there had been a large number of hits on his website, (I think about 1,000 hits) in relation to the land and 30 inquiries (including a number of active inquiries), but that when it transpired that the sale was perceived by people to be a fire sale with opposition, the prospective buyers very quickly disappeared and showed a lack of interest.”

6.16 In considering the proposition which had been put to the court, as to whether it could “order” or assure purchasers of the land that it was a “good will sale” the judge said at para. 15:

“I am strongly of the view that having regard to other aspects of this case and the whole question of wastage and frittering of assets in a family law dispute by reason of the activities of a party, a providing party, either before or after the court order, that there is an absolute duty on the parties to the marriage, when separating, to positively provide the goodwill themselves, as is the position in 95% of the cases that have gone through this court on my watch and in the Circuit Court below

6.17 It is quite clear that, on the basis of these findings of fact, the trial judge was entitled to conclude that there had been obstruction or hindrance of the court order. There was more than sufficient evidence to allow the trial judge come to that conclusion. In reality, it was not our understanding that counsel for Mr. D. submitted, on this appeal, that the finding of obstruction made by the trial judge was in any way unsustainable on the evidence. However, two points were urged on the Court. First, it was said that conduct of that type was not the type of conduct which could or should properly be taken into account in determining proper provision. Second, it was argued that, even if such conduct could be taken into account, it was wrong of the trial judge to attribute the entire diminution in value of the lands to the conduct of Mr. D.

6.18 So far as the first of those issues is concerned, it is important to emphasise that this is not a case where the court is being asked to determine whether the conduct of one or other of the parties to matrimonial proceedings is such as would warrant that conduct being taken into account in the determination of proper provision, as such. Amongst the factors which a court is generally entitled to take into account in determining proper provision under both s. 16 of the 1995 Act and s. 20 of the 1996 Act is the conduct of a party where the court is satisfied that it would be unjust to disregard the conduct concerned. Counsel for Mr. D. made reference to the case law which suggests that the sort of conduct, which must be present in order for same to be properly taken into account under those provisions, must be serious. However, this is not a case where a court is being asked to take conduct into account under the relevant provisions of statute (s. 16(2)(i) of the 1995 Act so far as judicial separation is concerned). Rather this is a case where the High Court was concerned, as a result of the specific matter remitted back to it by this Court, with assessing the assets of the parties and making such orders as were required to divide them equally. The clear intent of the order of this Court was that any assets which required to be sold would achieve the best price possible. While it is true, as was argued on behalf of Mr. D. in the written submissions filed on this appeal, that there is no obligation on a party to indicate "approval of … sale even where he has opposed the sale", nonetheless, it seems to us that a court is entitled to take into account, in the context where the court itself has ordered a sale, and where the court has determined that proper provision requires an equal division of assets taking into account, amongst other things, the proceeds of that sale, any circumstances attributable to either party which could be said to have materially reduced the price achieved.

6.19 Whatever about the type of conduct which may legitimately be taken into account in the context of determining proper provision generally, a party faced with a court order designed to assist in bringing about a specific division of assets, determined after a full hearing in both the High Court and this Court, is obliged to refrain from taking any action which might frustrate the clear intention of that court order. Any action which might be likely to interfere with the proper calculation of the value of an asset falls clearly into that category. It seems to us, therefore, that the trial judge was, in the circumstances of this case, clearly entitled to have regard to the conduct of Mr. D. in relation to the sale of the farmlands. To do otherwise would be to permit Mr. D. to frustrate the order of the court by taking action designed either to prevent that order being put into effect, or to minimise the amount of monies which would properly be paid to Ms. D. in accordance with the terms of the order of this Court made on the First Appeal.

6.20 There remains the second question, which is whether the way in which the trial judge dealt with this issue is sustainable on the evidence. In substance, the trial judge, relying on auctioneering evidence tendered, came to the view that the lands had achieved a sale price which was €1,500 per acre below that which might have been expected. There was undoubtedly evidence on which the trial judge could reach that conclusion, and there is no basis for overturning that aspect of his determination. Thereafter, the trial judge, applying that figure to the lands in question and making an appropriate deduction for the Capital Gains Tax which would have to have been paid out of any enhanced sale price achieved, came to a figure of €180,000 as representing the net shortfall. Again there is no basis for upsetting that finding.

6.21 It is suggested on behalf of Mr. D. that it was wrong for the trial judge to visit him with the entirety of that reduction. It is said that the factors which led to the relevant lands achieving a lower price than might otherwise have been anticipated involved the actions of many persons, including members of the family of Mr. D. and others in the locality, and that there was no evidence or finding that Mr. D. was acting in concert with such other persons. While that much is true, it is also clear that there was evidence, which the trial judge accepted, that there was a significant fall-off in interest in the property as soon as it became clear that there was opposition to the sale. Such a finding is hardly surprising. It was, therefore, open to the trial judge to conclude that the activities of a number of persons (including Mr. D. himself, not least because of his admission of putting up a sign opposing the sale) caused the shortfall in the sale price. On that basis, it was open to the trial judge to come to the view, although he did not put it in these terms, that all of the parties involved in opposition to the sale (including Mr. D) were collectively responsible for the diminution in the sale price in the sum determined and that, in those circumstances, it was appropriate to attribute, for the purposes of the calculation of assets in this case, a value to the lands which was €180,000 net greater than that achieved.

6.22 We are satisfied that this was an appropriate approach for the trial judge to adopt. It must be made clear that any party who acts in a way likely to diminish the value to be achieved in the sale of matrimonial assets in the context of matrimonial proceeding is exposed to the risk that the court will place any shortfall in the sale price achieved on their side of the ledger, as it were. To do otherwise would be to allow parties to benefit by their own wrongdoing, and to permit inappropriate interference with the orderly disposition of family assets. While we fully recognise that the fall-out from marital breakdown can often be fraught, that fact in itself is no excuse for interfering with realisable value of the finite assets which must then be distributed to ensure that both parties have proper provision. We would, therefore dismiss the appeal insofar as it relates to those aspects of the conduct issue, being the points mentioned at (i), (ii) and (iii) of para. 6.13 above.

6.23 The remaining issue under this heading concerns the attribution by the trial judge of a sum in respect of rent paid by Ms. D for accommodation between the First Appeal and the hearing before the High Court which is the subject of this appeal. There is both an appeal by Mr. D. and a cross-appeal by Ms. D. in relation to that element of the trial judge's determination. In substance, the finding of the trial judge was that there was a significant delay in determining the precise entitlement of Ms. D. to a lump sum. That delay was, in the trial judge's view, significantly attributable to Mr. D. As a result, the trial judge decided to include, in the overall calculation, a somewhat notional sum to reflect the fact that Ms. D. was, it would appear, in rented accommodation pending a final resolution of the amounts to which she would be entitled.

6.24 Mr. D. argues that no sum should have been allowed. Ms. D., on the other hand, argues that, if the trial judge was satisfied that, as a result of culpable delay attributable to Mr. D., she was required to live in rented accommodation, then she should have been allowed the full value of the rent which she paid. In that latter context, it must be noted that the trial judge found that, at least to some extent, Ms. D.'s choice of living accommodation arose from her own preferences.

6.25 We have already addressed that findings of the trial judge in respect of the contribution of the conduct of Mr. D. to the problems encountered in selling the principal farmland property. In addition, we have set out the procedural history of the case since it was remitted to the High Court. A consideration of those matters together leads only to the conclusion that it was more than open to the trial judge to conclude that there was a significant delay in the sale of the relevant property. In turn, this had a knock-on effect in significantly delaying the time by which Ms. D. was paid (or, indeed, it might be said part-paid, as she has only received a payment on account to date as a result of the determination of this Court on the stay application) what may be calculated to be her full entitlement.

6.26 For similar reasons to those set out in our discussion of the inclusion, by the trial judge, of a sum of €180,000 in respect of what was found to a diminished sale price, we are persuaded that it was open to the trial judge to make some allocation to reflect that delay. The original intent of the order of this Court, which was made as a result of the First Appeal, was that there would be a timely, and hopefully straightforward, resolution of all of the issues so that Ms. D. would receive whatever sum might be determined to be her entitlement in early course. The equal division of assets was predicated on such an assumption. To the extent that Mr. D. might, as a result of culpable action on his part, have contributed to a delay in achieving that end, it was appropriate for the trial judge to take that fact into account, for to do otherwise would be to allow Mr. D. to impose a burden on Ms. D. (in the form of obtaining alternative rented accommodation) which was unnecessary, and which would deflect any overall resolution away from the principle of equality which this Court, upholding the High Court in that regard, had determined to be appropriate in all the circumstances of this case. Just as in relation to the diminution in the sale price, a sum to reflect delay was necessary precisely because a failure to include such a sum would actually be to move away from the principle of equality already determined.

6.27 However, it was necessarily a difficult task for the trial judge to decide exactly how much to include as an adjustment under this heading. In that context, we must comment that, at least in complex cases, a trial judge will often be faced with a range of issues of valuation and the like, each one of which may require to be resolved in order to obtain an accurate overall picture of the position of the parties, and thus to determine what proper provision should be. But each individual issue is not necessarily vital in itself. What the court needs to do is to come to a fair picture of the overall resources available. Some element of estimation or a broad brush approach may, therefore, be necessary in respect of individual items. But, provided that the overall approach is fair and sustainable on the evidence, it does not seem to us that an overly minute analysis of each individual item is either necessary or helpful. A trial judge is entitled to adopt a broad approach in reaching a fair overall assessment of the available resources of the parties. Even when a trial judge is confined, as has happened in the circumstances of this case, to a narrower question, being the assessment of the "assets" of the parties, nonetheless some element of that broad approach remains appropriate. That will be particularly so where, as on this issue, a precise calculation may not really be possible.

6.28 Given that some delay would have been incurred in any event, and given that not all of the delay can, therefore, be attributed to Mr. D., there would necessarily have been some estimation in the appropriate sum to be allowed to Ms. D. under this heading. We are satisfied that the trial judge was entitled, on the evidence, to come to the view that at least an element of Ms. D.'s choice of accommodation was designed to reflect her own preferences rather than necessity. It follows that it was more than open to the trial judge to take the view that the full sum attributable to Ms. D. renting during the relevant period should not be allowed. On the other side of the equation, the trial judge was, however, as we have pointed out, entitled to reach the conclusion that Ms. D. was put to some additional rental expense as a result of culpable delay on the part of Mr. D The trial judge was left with the difficult task of picking a sum which met the justice of the case in all those circumstances. We are not, therefore, satisfied that either side has put forward a legitimate basis on which we should overturn the figure picked by the trial judge. We would, therefore, propose dismissing the appeal and the cross-appeal on this point.

(iii) The Costs Issue

6.29 Counsel for Ms. D. raised the difficult question of costs. It was said that Ms. D.’s liability in respect of costs, incurred in the context of these proceedings, should have been deducted from her assets in the overall calculation of their value. It was suggested that, had Ms. D. had to borrow the money to discharge her costs, this inevitably would have formed part of the calculation.

6.30 It is, of course, the case that a court, in determining proper provision, cannot ignore the fact that matrimonial proceedings, particularly when lengthy and costly, will inevitably diminish the overall resources available to the parties out of which proper provision must be made. Thus, it is entirely appropriate for a court to include, in its overall consideration of the available resources, the fact that some of those resources will need to be used by one or other party (or indeed both) in defraying the costs of the proceedings. However, it seems to us that somewhat different considerations apply in the particular circumstances of this case for two main reasons. First, as already noted, there is an appeal outstanding before this Court in respect of the order made by the trial judge in relation to the costs of the hearing before him, and connected matters. The trial judge decided that Mr. D. would have to pay 80% of Ms. D.'s costs. The appeal in respect of that aspect of the trial judge's order has been deferred until the substantive issues, which are the subject of this judgment, have been determined. Given that liability in respect of costs remains a live issue before this Court, it would run a very real risk of a double count if any liability in respect of costs were to be included in the calculation of the assets of the respective parties. If, for example, Ms. D. were to retain the order for costs determined by the trial judge, but were also to be able to deduct from her assets sums said to be due to her lawyers in respect of those same costs, she would, in effect, be recovering costs on the double.

6.31 The second point is that the order made by this Court as a result of the First Appeal was confined to assets as such. Given that it was hoped, as indeed this Court stated in its judgment, that the question of an equal distribution of assets could be resolved in a straightforward and very timely fashion, it would not have been anticipated at that time that very significant further costs would have been incurred. Where the fault lies, for both the delay and the cost of determining just how an equal distribution of assets was to be achieved, is a matter yet to be determined.

6.32 In so commenting, we are mindful of the fact that there is some risk of unfairness if it should transpire that it was possible for Mr. D. to discharge his costs of the proceedings by eating into his capital resources. If that were to have been so, then Mr. D.'s assets would have been reduced by whatever sum was so expended, while Ms. D.'s assets would not have been reduced by virtue of the failure to include a deduction for her liability to her lawyers in respect of those costs. However, that unfairness presupposes that Mr. D. discharged his costs out of capital assets rather than out of income. If the latter were to have been the case, then there would have been no unfairness in the calculation of the respective assets of the parties. There was just no evidence before the High Court, which would have allowed any assessment of the extent, if any, to which Mr. D.'s assets (and thus the overall assets which required to be equally distributed) were diminished by incurring costs.

6.33 In all of those circumstances, it seems to us that the fairest course of action to adopt is to allow the question of the burden of the costs on the respective parties to be determined in the context of Mr. D.'s appeal against the costs order made by the trial judge, and in the context of this Court dealing with the costs of this appeal. Ms. D.'s cross-appeal on that point is, therefore, dismissed.

6.34 We would make one further observation on the question of costs. As noted earlier, the reality that some amount of costs will have to be borne by one, or other, or both parties is a matter which a court may well have to take into account in many matrimonial proceedings. On whomever the burden of paying the costs of litigation lies, the expense of the proceedings will inevitably diminish the overall resources available and may, therefore, affect the court's approach to proper provision. It seems to us, therefore, that, in addition to the ordinary requirements which arise as and between solicitor and client concerning costs transparency, there is an obligation on the parties to place before the court, at the beginning of any contested hearing concerning proper provision, a reasonable account of the costs incurred, and likely to be incurred in matrimonial proceedings, so that the court can have regard to the fact that those costs will have to be met in some fashion in determining the provision issues which require to be addressed. The information put before the court should be sufficiently detailed to enable the court, at least at a broad level, to assess what costs will have to be paid, and what the main items of expenditure were, or are likely to be.

(iv) The Valuation Issue

6.35 The argument made on behalf of Mr. D. under this heading stemmed from the finding by the trial judge that a sale in three lots, as suggested by the valuer called on behalf of Ms. D., was unlikely to provide the optimum means of selling the lands in question. On that basis, it was suggested that the trial judge had rejected the valuation evidence tendered on behalf of Ms. D., and should, therefore, have accepted the competing evidence tendered on behalf of Mr. D, which included assessing the value of the lands on the basis of a sale as a single lot.

6.36 It is clear that the value which the trial judge ultimately placed on the lands in question was somewhere between the values identified by the respective auctioneers. It also seems clear to us that, even though rejecting the proposition that a sale in three lots might be the optimum way to sell the relevant lands, the trial judge was entitled to take into account the evidence of Ms. D.'s valuer as to the overall value of the lands. Even where it may, as a matter of tactics, be considered better to sell a property in one lot, it is nonetheless incorrect to state that it is necessarily irrelevant, in valuing such lands, to attempt to place a value on each individual part of the lands for the purposes of coming to an overall value. Purchasers, even when buying a single lot, may well have regard to the value of individual elements of the relevant property in deciding on the amount that they will offer for the whole.

6.37 The trial judge did not fully accept the evidence of Ms. D.'s valuer. But, notwithstanding the fact that the trial judge was not persuaded by the evidence of that valuer that a sale of the land as three lots was likely to optimise the price, the trial judge was nonetheless entitled to have regard to the overall value placed on the lands by the auctioneer in question. On that basis, there clearly was evidence available to the trial judge to sustain the value which he placed on the lands in question. We would, therefore, dismiss that aspect of the appeal.

(v) The Deduction Issue

6.38 We now turn to the deduction issue. A property had been sold by Ms. D. in circumstances where it had been agreed between the parties that the proceeds of sale would be taken into account in the calculation of the assets of the parties. There is no dispute before this Court but that it was appropriate, therefore, to take the net proceeds of the property concerned into account in calculating both the overall assets of the parties and of Ms. D.'s assets. There was, however, a difference of opinion as to what the net proceeds actually were. Mr. D. asserted that the net proceeds ought to be regarded as €224,028, whereas Ms. D. asserted that the proper sum was €190,455. The trial judge accepted the figure proposed on behalf of Ms. D. The difference was said to be attributable to costs which, it was claimed, were incurred by Ms. D. in perfecting title to the property so that it could be sold. Counsel for Mr. D. accepted, quite properly, that, if it were truly the case that monies were required to be expended in perfecting title so that property could be sold, then such monies should, equally properly, be deducted from the sale price in coming to a conclusion as to the net assets which should be included in the court's calculation.

6.39 The real issue, under this heading, on this appeal, boils down to a question of whether it was open to the trial judge to make a deduction for the expenses alleged to have been incurred by Ms. D. in perfecting title. Ms. D. gave evidence that she had paid her solicitors the sums in question. When those solicitors gave evidence, they indicated that they had no knowledge of such matters, and had not been paid any sums in relation to perfecting title or the like. There may or may not be some explanation as to how those two, clearly contradictory, accounts came to be before the court. However, the fact remains that the only evidence available on this question was as we have described it.

6.40 It is true, as her counsel argued, that Ms. D. did give evidence of having expended the monies in question. On that basis, counsel argued that it was open to the trial judge to make a finding that the monies were expended and could, therefore, be properly deducted. However, it seems to us that a mere assertion of the expenditure of monies with no corroboration or verification, when coupled with a denial of receipt of the monies concerned by her solicitors, left the trial judge in a position where he had no option but to reject Ms. D.'s evidence on that point. We are, therefore, satisfied that the trial judge should have attributed the full net value of €224,028 to the asset in question rather than the reduced sum of €190,455 which was actually included in his calculation. To that extent, we propose allowing Mr. D.'s appeal on this issue, and including the revised and larger sum in an appropriate calculation for the purposes of determining the lump sum which should be paid on the basis of equality.

(vi) The Rents Issue

6.41 At the High Court hearing in 2008, it became clear that Ms. D. had diverted, for her own use, rental income from a property owned by Mr. D. The trial judge found that the sum involved was €54,887. The trial judge did not factor this sum into his judgment, but appeared to indicate to Ms. D. in the course of the trial that she was going to have to repay these monies, and referred, inter alia, to her giving Mr. D. a promissory note. This appears not to have been disputed at the original High Court hearing. Mr. D. was not paid the money, nor was a promissory note executed

6.42 On this basis, counsel for Mr. D. submitted to the High Court that the monies had to be paid in the ultimate resolution of the parties’ financial affairs. At the High Court hearing, the subject of this appeal, it was submitted (a) that Mr. D. was statute barred from instituting separate proceedings to recover the relevant monies, and (b) that Ms. D. had never agreed to pay the monies. Counsel on behalf of Mr. D. stated that the fact that Mr. D. was statute barred from taking separate proceedings was not relevant to the issue of whether the High Court could, or should, take those monies into consideration. It was said that the correctness of the contention that the debt was “indeed statute barred” was, in any event, questionable, on the basis of acknowledgement of the debt. In his judgment, the trial judge did not make any mention or give any consideration to this submission. In our view, this matter did not fall to be determined by the Supreme Court in 2011, and, therefore, does not fall for determination today. This is an issue which could, and should, have been determined or otherwise pursued in 2008. It did not form part of the issues which were remitted to the High Court for the purposes of determining the manner in which the assets of the parties were to be distributed on the basis of equality. Mr. D.'s appeal on this issue is, therefore, dismissed.

7. The Overall Position
7.1 The adjustments which require to be made to Schedule 2, in the light of those findings, are therefore, as follows. First, item no. 1 needs to be increased to reflect the need to disallow the expenditure alleged to have been incurred to perfect title. Second, item no. 13 needs to be reduced by €15,000 to reflect the fact that approximately that part of the relevant sum represented a pension in Mr. D.'s name, which, for the reasons already set out, should not be included. Finally, the payment on account of €150,000 at item no. 15 needs to be included in the total assets side of the column, as well as on the wife's assets.

7.2 Making those adjustments, in the light of our view of the issues raised on this appeal, the figures now appear as set out in Schedule 3. From our calculation, it would seem that a precise calculation of a balancing sum of €899,396.50 would be required. However, it does need to be recalled that certain elements of the calculation, which go in to the determination of that sum, necessarily involve estimates or approximations. Even property which has a fairly clear value can not be valued to the nearest euro. Likewise, certain of the items included in the calculation involved what we have considered to be an entirely appropriate broad brush approach on the part of the trial judge.

7.3 While there are certain matters which can be calculated with absolute precision, others are not capable of such treatment. Where a total involves a number of significant items which are not capable of such calculation, it would be wrong to give the appearance that the overall sum itself is capable of precise calculation. In all of those circumstances, we have come to the view that it would be appropriate to direct a provision of assets in the sum of €900,000, which is as near as makes no difference to the sum calculated in that regard in Schedule 3, but reflects the fact that any appearance of absolute precision in the calculations set out in that schedule mask the fact that a number of the items to be found therein are themselves estimates, or involve a broad brush approach.

8. Conclusions
8.1 We have concluded that both the appeal and the cross appeal raised at least some points which required the amount of provision to be adjusted. However, the net effect is to increase that sum. In those circumstances we would allow the cross-appeal and substitute, for the amount specified in the High Court order of €848,683, an amount of €900,000.

8.2 Leaving aside altogether the question of the costs arising out of this appeal to date, the Court still has before it an appeal in relation to the costs of the rehearing in respect of which Mr. D. was found to be liable to pay 80% of Ms. D.'s costs. We propose that the Court hear counsel further on all issues of costs, including that question.

8.3 We have included in this judgment a number of recommendations concerning good practice in complex family law cases. We also include, as Schedule 5, a summary of the headings of those recommendations and a reference to where, in the course of the judgment, more details can be found.

Schedule 1

Number	Description	Total Assets	Wife's Assets
1	130 sq	190,455.00	190,455.00
2	54 M.A.D6	87,998.00	87,998.00
3	Attributed farm rent x 3 years net of income tax	28,000.00
4	Cottage and 32 acres	258,957.00	258,957.00
5	Family home & 1 acre	350,000.00
6	G & F warehouse	33,932.00
7	Attributed loss on 180 acres net of CGT @ 1500 gross per acre	180,000.00
8	Industrial site of 5 acres	70,000.00
9	Area aid	29,000.00
10	Proceeds of sale on deposit net of provisions for CGT	1,227,394.00
11	Wife's savings	15,673.00	15,673.00
12	Value of W.S. business	450,000.00
Total Less Balancing Sum		2,921,409.00	553,083.00 807,621.50
Equal Division of Assets		1,460,704.50	1,460,704.50

Schedule 2

Number	Description	Total Assets	Wife's Assets
1	130 sq	190,455.00	190,455.00
2	54 M.A. D6	87,998.00	87,998.00
3	Attributed farm rent x 3 years net of income tax	28,000.00
4	Cottage and 32 acres	258,957.00	258,957.00
5	Family home & 1 acre	350,000.00
6	G & F warehouse	33,932.00
7	Attributed loss on 180 acres nett of CGT @ 1500 gross per acre	180,000.00
8	Industrial site of 5 acres	70,000.00
9	Area aid	29,000.00
10	Proceeds of sale on deposit net of provisions for CGT	1,227,394.00
11	Wife's savings	15,673.00	15,673.00
12	Value of W.S. business	450,000.00
13	Shares & Investments	62,123.00
14	Lands near House	120,000.00
15	Payment on account		150,000.00
Total Less Balancing Sum		3,103,532.00	703,083.00 848,683.00
Equal Division of Assets		1,551,766.00	1,551,766.00

Schedule 3

Number	Description	Total Assets	Wife's Assets
1	130 sq	224,028.00	224,028.00
2	54 M.A. D6	87,998.00	87,998.00
3	Attributed farm rent x 3 years net of income tax	28,000.00
4	Cottage and 32 acres	258,957.00	258,957.00
5	Family home & 1 acre	350,000.00
6	G & F warehouse	33,932.00
7	Attributed loss on 180 acres nett of CGT @ 1500 gross per acre	180,000.00
8	Industrial site of 5 acres	70,000.00
9	Area aid	29,000.00
10	Proceeds of sale on deposit net of provisions for CGT	1,227,394.00
11	Wife's savings	15,673.00	15,673.00
12	Value of W.S. business	450,000.00
13	Shares & Investments	47,123.00
14	Lands near House	120,000.00
15	Payment on account	150,000.00	150,000.00
Total Less balancing sum		3,272,105.00	736,656.00 899,396.50
Equal Division of Assets		1,636,052.50	1,636,052.50

Schedule 4

Number	Description	Husband's Assets on Husband's Case	Husband's Assets on Wife's Case	Wife's Assets on Wife's Case	Wife's Assets on Husband's Case	Judges' Determination Husband's Assets	Judges' Determination Wife's Assets
-
-
-
-
-
-
-

Schedule 5

Summary of Recommendations as to Good Practice

A. For the Parties

(i) The parties should prepare a schedule of their position in respect of the assets of both parties in accordance with the recommendations set out at para. 4.7 of this judgment and the succeeding paragraphs. The schedule should be broadly in the form of Schedule 4 to this judgment.

(ii) Where there is any significant dispute as to other resources available to the parties, a separate schedule, in a form similar to that specified in Schedule 4 should also be produced dealing with such matters.

(iii) The parties should produce an estimate of the costs of the proceedings prior to the commencement of the hearing in accordance with what is suggested at paras. 4.12 and 6.34 of this judgment.

(iv) The parties should specify in writing what they say would be proper provision in accordance with para. 4.12.

B. For the Trial Judge

(i) We recommend that it is important that consistency, between any judgment delivered by the trial judge and the court order, be achieved in an appropriate fashion as recommended in para. 2.5 of this judgment.

(ii) We recommend that a trial judge, in determining proper provision, should do so by making express reference to the various criteria specified in whichever of s. 16 of the 1995 Act or s. 20 of the 1996 Act is appropriate.

C. For Both

We recommend further case management and time allocation in para. 4.13.

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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> D. -v- D. [2015] IESC 16 (26 February 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S16.html Cite as: [2015] IESC 16, [2016] 1 ILRM 339

Supreme Court of Ireland Decisions