Chambers News



18 July 2018


Victory for Graham Mills, represented by Philip Cayford QC and Sassa-Ann Amaouche, both of 29 Bedford Row, in the Supreme Court - Mills v Mills [2018] UKSC 38.

The Supreme Court has overturned the decision of the Court of Appeal (Mills v Mills [2017] EWCA Civ 129), which had allowed the wife’s appeal against the order of HHJ Everall QC made in the Central Family Court on 9 June 2015. The order of HHJ Everall QC has been reinstated. The question of Mr Mills’ costs has been reserved for written submissions.

The only question addressed by the SC was identified by Lord Wilson in paragraph 1 of his judgment. “In circumstances in which at the time of a divorce a spouse, say a wife, is awarded capital which enables her to purchase a home but later she exhausts the capital by entry into a series of unwise transactions and so develops a need to pay rent, is the court entitled to decline to increase the order for the husband to make periodical payments to her so as to fund payment of all (or perhaps even any) of her rent even if he could afford to do so?”

The Supreme Court in a unanimous judgment given by Lord Wilson of Culworth on 18 July 2018 answered the question posed in the affirmative.

Lord Wilson’s judgment rejects the Court of Appeal’s case analysis and in particular its finding that the trial judge had given insufficient reasoning for leaving the wife with a ‘shortfall’ in her income needs. Lord Wilson identified several respects in which HHJ Everall QC did indeed give reasons for his decision.  The Supreme Court emphasised that the trial judge was entitled to take into account the wife’s unwise financial conduct in exercising his discretion to leave her with less than her reasonable income needs (as he found them to be).  The Court of Appeal cases of North, Pearce and Yates were correctly decided. The concept of accountability on the part of a payee contained within those cases was re-affirmed. The payee wife was, therefore, held responsible (at least in part) for the consequences of her unwise financial decisions; the husband was not obliged to make further provision for the wife’s housing (rental) costs in circumstances where she had received (upon separation) a large capital sum to cover the entirety of her reasonable re-housing.

The Supreme Court also rejected the wife’s submissions as to the test to be applied in cases of this type in so far as they purported to reduce or avoid responsibility for the consequences of her own actions.

The Court of Appeal’s approach, essentially that if the payee establishes a need for ‘top up’ rent she is entitled to receive it, is wrong.  It is within the trial judge’s discretion to make such award as (s)he thinks appropriate, taking into account all the statutory factors.

H’s team is delighted that the SC has overturned the Court of Appeal’s decision in Mills and restored the earlier order of HHJ Everall sitting in the Family Court in 2015. This was as far as the Supreme Court felt itself able to go in the unusual circumstances by which the appeal came to the Court and the restricted level of permission it was therefore able to grant.

Mr Mills’ decision to appeal to the Supreme Court has therefore been entirely vindicated, and the Court of Appeal’s decision has been overturned in its entirety.

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