“The trial is not a dress rehearsal. It is the first and last night of the show”

The case of AR v ML is an important reminder for lawyers and clients to ensure that the evidence they are producing is consistent with the case they…

Why proper preparation of your case is critical

The case of AR v ML [2019] EWFC 56 is an important reminder for lawyers and clients to ensure that the evidence they are producing is consistent with the case they are advancing to the court.

What happened?

The wife in this case requested a lump sum that would give her a rehousing fund after repayment of debts of £525,000, yet the property particulars she was ordered to provide to the court and the husband’s solicitors as evidence of her re-housing needs started at a price of £575,000, a not insignificant difference of £50,000.

The wife was criticised by the judge for not providing evidence to support her proposal that she would be able to re-house mortgage free in a two-bedroom property with a garden in Crouch End for £525,000 and also for not considering properties outside of the Crouch End area.

As a result, the judge at first instance declined to award the wife the amount she sought, as there was no evidence before the court that she could actually use that money to buy a house in Crouch End as she suggested she would. The husband had suggested the wife could re-house for just under £400,000.

The judge provided the wife with 49% of the overall assets, some £478,000, which, after debts were discharged, gave her a rehousing fund of £412,000.

The wife was criticised for not addressing the gap in her evidence when the husband’s solicitors pointed this out to her solicitors, which could have been dealt with by way of an application to court. It was only after the unfavourable judgment that the wife’s solicitors made an application to the court.

What happened next?

The wife after delivery of the judgment applied to delay the proceedings and for the judgment not to be made into an order to allow her time to provide evidence of properties she could purchase in the region of £525,000. The trial judge agreed to this and the husband appealed the decision.

The wife’s solicitors argued that the court could reconsider its decision as a result of the Supreme Court decision in Re L-B (Reversal of Judgment) [2013] UKSC 8 [2013] 2 FLR 859. Mostyn J made it clear that there has to be a good reason to revisit a judgment which included the following:

  • Material non-disclosure by one or both parties
  • Fraud
  • A Barder event i.e. an important event which occurred shortly afterwards which was not foreseeable at the time the order was made; and
  • Mistake e.g. a mistake as to fact or a failure to consider a key part of the evidence.

Mostyn J could find none of these reasons apparent in this case. Within his judgment at paragraph 22 he said:

“In Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 Lewinson LJ memorably stated: “The trial is not a dress rehearsal. It is the first and last night of the show”. This maxim should apply strongly in a financial remedy case. They are disproportionately expensive and extraordinarily stressful for the parties. To allow litigants to treat the trial as a dress rehearsal and to seek a further performance on the basis of new evidence which could, with due diligence, have been supplied first time round sends a terrible message to prospective litigants. The spectre of an appeal is bad enough, but at least that is the subject of the rigorous permission filter. The idea that there could be a re-run of the case at the suit of a disappointed litigant on the basis of evidence, yet to be obtained, but which could have been obtained, is appalling”.

He went on to say that a very good reason to revisit a judgment would be needed and was not present in this case. Mostyn J allowed the husband’s appeal and ordered the trial judge to make an order in the terms of the original judgment.

Why is this case unusual?

The case was relatively straightforward, although there were some arguments raised about contributions given the marriage was a short one, there were no spousal maintenance or pension issues to be dealt with and it was very much a “needs” case i.e. the court had to decide how the parties’ assets would be appropriately divided to ensure that both the husband and wife’s housing needs would be met, with the paramount consideration being the needs of any children. The courts rarely publish judgments on these sorts of everyday cases or on discrete issues such as property particulars and their relevance in terms of case preparation and strategy.

What should have happened?

The case is a stark reminder that it is important to keep under review the case you are advancing to the court and ensure that the evidence you are producing supports that position. It is essential that the two things marry up.

It is critical to ensure that you and your legal team properly – and carefully – prepare your case. If you do not then you are undermining your own case as the judge will make a decision based on the evidence submitted to the court, as they did in this case.

If this alert raises any issues for your organisation, please speak to your usual contact in the Weightmans employment, pensions and immigration team or contact Linzi Perriman at linzi.perriman@weightmans.com.

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