Marano v Marano

Lord Justice Thorpe:

On 19 June, having considered the application for permission to appeal, and certainly the first of the three submitted bundles, I refused permission for reasons that were typed by my clerk. I draw attention to the one typo in paragraph three, where ‘particularly’ emerges as ‘partly’. In expressing my conclusions, I did have the advantage of a skeleton argument from Mr Lewis Marks QC, dated 2 June. That of course is not an aid for which the Rules provide, but it is something that not uncommonly results when a respondent gets wind of a paper application to the court.

This afternoon we have heard from Mr Mostyn QC who has renewed the application and orally urged and extended the points in his skeleton argument. He emphasises that were any relief granted this afternoon, it would be used immediately as a passport into the Court of Appeal mediation scheme. Of course it would only be a partial passport, for entry to the scheme would depend upon the concurrence of the respondent to this application. But nonetheless, for us to set up a potential mediation is in itself, if not an encouragement, at least some pressure upon the respondent to resist the temptation to refuse mediation without proper consideration and maybe even reason. So that is a consideration that was not before me on 19 June.

Mr Mostyn’s principal point is that it is perverse, legally incorrect and demonstrably unfair for the judge to order a lump sum of £5 million against the wife on effectively the sole ground that the husband can demonstrate that on a professional valuation his huge emotional and financial investment in a Liverpool property now stands at a financial minus of £10 million. Mr Mostyn says that such a valuation presupposes an immediate crystallisation by sale. That is the one eventuality that we all know is exceptionally unlikely to result, since the husband has said in evidence that he will trade his way out of the present low point if it be his last act on earth. Mr Mostyn emphasises that really nothing has changed since, this is a let building with high class tenants who are bound by the same contracts and covenants and who will continue to pay the same rents as are provided for or as will be determined. Accordingly the reduction in the assumed basis of valuation from, I think, 20 to 12 year receipts is purely a notional intellectual exercise on the part of professional valuers. So Mr Mostyn asserts that the obvious solution at trial was to bind the wife in