Mann v Mann: capital payment on variation
Judgment in Mann v Mann  EWCA Civ 1674 in the Court of Appeal is dated 19 December 2014; but it is only in the last few days that it has had special press attention (eg in the Daily Telegraph : http://www.telegraph.co.uk/news/uknews/law-and-order/11381729/Hostile-divorce-judge-thrown-off-case.html ). So what was the case all about; and what was actually said to dismiss Mostyn J?
In the last paragraph of her judgment, McCur LJ says that, on its return to the Family Division, the case must be listed before another judge. Of Mostyn J’s attempts to ensure that Mr Mann paid money to his former wife (the most recent reported case on the subject was Mann v Mann  EWHC 537 (Fam),  1 WLR 2807) the judge said:
 The stated perception of H during the first instance proceedings that Mostyn J has “made up his mind about [H’s] ability to pay” is objectively confirmed by the intemperate judicial dialogues recorded in the transcripts of the proceedings between February and June 2014. During that time Mostyn J’s frustration is palpable and clearly arises from his obvious belief that H is deliberately and maliciously avoiding his legal and moral responsibilities to W. These views are recently moderated in the hearing conducted on 19 September 2014 when Mostyn J appears to row back from previous indications and prepare W, a litigant in person, to the possibility that she is “clutching at straws” in certain major respects; … Objectively, I consider that Mostyn J is compromised in continuing to deal with this case and would direct that it should be listed before another judge of the division.
Mostyn J is off the case; but how – briefly – did it get to this point?
The following are the procedural steps by which it arrived in the Court of Appeal. (1) A consent order was made in April 1999 which provided for transfer of the former matrimonial home to W, for periodical payments for the children, for payment of £50,000 to W by two instalments and for periodical payments for W at £24,000 per annum. (2) H applied three years later for variation of the spousal periodical payments order; and alongside that – eventually – W applied for an upward variation. By order dated 8 June 2005 under Matrimonial Causes Act 1973 s 31(2) (see further below), Charles J ordered capitalisation of the periodical payments (£1,300,000) and repayment of some arrears. (3) H appealed against that order; and then agreed to compromise the appeal: he was to make various payments which, if not made, would cause the 8 June order to revive.
Beyond enforcement of the 8 June 2005 order what remained to be done: that is essentially what the Court of Appeal had to consider. To seek enforcement (4) W issued a statutory demand which H applied to set aside and to appeal further. That appeal was settled by a further agreement dated 2 November 2011. (5) W applied for a Family Procedure Rules 2010 r 33.3(2)(b) – enforcement-by-whatever-means – order; and it is that application which came on before Mostyn J on 26 February 2014.
Minton v Minton lives…
Before looking at how Mostyn J dealt with the 33.3(2) application it is worth reflecting on the outcome of Charles J’s order. MCA 1973 s 31, according to its title, deals with ‘variation, discharge etc’ of certain financial relief orders under MCA 1973: mostly periodical payments orders. It was amended extensively by Matrimonial and Family Proceedings Act 1984 following the House of Lords clean break order decision in Minton v Minton  AC 593,  2 WLR 31. Most of the 22 sub-clauses of s 31 repay study from time to time. Section 31(7) deals with factors the court must ‘consider’ when deciding whether to make an order under s 31 (s 31(7)(a): essentially it requires an up-to-date assessment of finances in accordance with s 25(2)) In particular the court must consider the clean break provisions in s 31(7B). Section 31(7B) sets out what may happen if the court decides that a periodical payments order will be varied and payable over a limited period (s 31(7A)(b)). The sub-paragraph says:
(7B) The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of –
(a)an order for the payment of a lump sum in favour of a party to the marriage;
(b)one or more property adjustment orders in favour of a party to the marriage;
(ba)one or more pension sharing orders;
(bb)a pension compensation sharing order;
(c)a direction that the party in whose favour the original order discharged or varied was made is not entitled to make any further application for –
(i)a periodical payments or secured periodical payments order, or
(ii)an extension of the period to which the original order is limited by any variation made by the court.
Clean break on variation
The effect of this, said McCur LJ, was that – save for enforcement – the court had no power to make further financial provision orders under MCA 1973 (par ) once the capitalisation order was made by Charles J. This is perhaps the important point of principle to derive from this case: that the Court of Appeal re-assert the breadth and meaning, on variation applications of the clean break provisions of MCA 1973:
 In Minton v Minton  AC 593, 608 E Lord Scarman propounded that : ‘Once an application [for periodical payments] has been dealt with upon its merits, the court has no future jurisdiction save where there is a continuing order capable of variation or discharge under section 31 of the Act.’
 Ward LJ in G v G (Periodical Payments: Jurisdiction)  1 FLR 368, 378 made clear that: ‘Minton does not narrowly refer only to cases where the claim for periodical payments was dismissed. The speech ranges much wider…Lord Scarman therefore spoke of dismissal or discharge or termination as displacing the court’s power.’
Mrs Mann had sought to keep live the order of Charles J so that she could argue that discharge of an order (as distinct from its dismissal) enabled her still to make further applications. That attempt, in the absence of specific provision for further application in the discharge order, was ‘dealt a death blow’ (para ), as far as McCur LJ was concerned. A clean break under s 31 means that (subject to separate and parasitic questions of enforcement).
Judicial attempts to evade effects of a clean break order
Mostyn J attempts to get around these clean break provisions, and – perhaps most serious – to do so in the face of a Court of Appeal stay order, was the subject of the appeal:
 In my opinion, this attempt of Mostyn J to relieve W’s impecuniosity or otherwise head this appeal off at the pass is doomed to failure. The mechanism plainly described is not a legitimate response other than upon an application for variation of a lump sum directed to be payable by instalments, which is an order amenable to variation, or else in response to a judgment summons pursuant to FPR 2010 r 33.1(1) and (2). Neither of these situations appertains here.
The steps actually taken by Mostyn J are recounted at paras  and , but are quite literally only of academic interest. Any court’s ability to do what Mostyn J was trying to do (eg to vary the post 8 June agreement) were not ‘legitimate’. And as said at the beginning of this note, McCur J ‘directed’ that Mostyn J should not deal with the case further.
The consequences of all this are for another day: suffice to say now that the attempts of Mostyn J to take the law into his own hands in ways which are held not to be legitimate (as here0; or which cause parties to resolve appeals by agreement against him (Rochdale Metropolitan Borough Council v KW & Ors (Rev 1)  EWCOP 45: Mostyn J not following the Supreme Court on their definition of ‘liberty’) must ultimately be unhelpful, save in the short-term where one or other party, or the judge himself, gets away with it (and see also https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ (questionable ‘guidance’ issued by Mostyn J in respect of Imerman documents) and https://dbfamilylaw.wordpress.com/2015/02/06/bullying-in-the-family-courts/ (treatment of litigants in person)).
 MCA 1973 s 37(2); and including to vary MCA 1973 s 24A(1) orders for sale of property (see s 31(2)(f)), which, I confess, I hadn’t noticed till now