Bahouse & anr v Negus [2008] EWCA Civ 1002

BAHOUSE and another




Henry Bahouse (D) died on 27 March 2005 leaving an estate of approximately £2.2m in including a flat worth approximately £400,000. He had been married twice before and there was a son of his first marriage, Gordon (G), the residuary legatee under D’s will of 24 January 1996 and one of the executors seeking permission to appeal the decision of the lower court. Cyd Negus (C) was D’s cohabitee. No provision was made for her in the will and she made various claims against the estate. In the High Court she was awarded maintenance under the Inheritance (Provision for Family and Dependents) Act 1975 (the 1975 Act). In making the award, the judge considered that a clean break from D’s family was desirable and assessed C’s current needs at £38,000 with a shortfall of £18,000 a year not taking into account her housing needs. C’s only income came from interest on her share of capital from a life policy taken out by D (reduced to £395,000 after she had used some of the capital to finance her expenses – G having the other half share) and she also had a half share worth between £110,000 and £200,000 in a Spanish property left by D under a Spanish will to C and G. The judge ordered the flat to be transferred to her free of mortgage (or, if that were not possible, the sum required to pay off the mortgage should be transferred to her) and a further capital amount of £240,000 (including £40,000 that would be need for maintenance on the flat). This award produced £745,000, which, using the Duxbury tables, ought to produce something in the mid range of £30,000 to £40,000 pa, which was not inconsistent with C’s assessed needs. In assessing those needs the judge accepted that ‘maintenance’ was the touchstone by which this should be done but stated that it must be maintenance in the context of C’s lifestyle as it was with D, not what it was immediately before.

G applied for leave to appeal on the grounds that the judge had erred in law by taking account of what was described as the extravagant lifestyle of D and C and that the award was too generous. It was submitted by reference to the provisions in the Act and to the judgment in Re Coventry (Deceased) [1980] Ch 461 that, in making a value judgment, the judge should recognise the difference that was reflected in the provisions of the Act between a claimant who was a surviving spouse or civil partner, being such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance; and a claimant in the position of C who has been a live-in partner of the deceased, being such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for her maintenance.

Rimer LJ refused the application for permission considered on paper stating that the judge had correctly directed himself with regard to the objective question posed by s1 of the 1975 Act and made an evaluation that he was entitled to make. Having done so, he correctly directed himself with regard to the discretionary exercise required of him under s2. In neither respect was there any real prospect of a successful challenge to his conclusions on an appeal. G made a further application for an oral hearing.

Held (application refused. There was no real prospect of an appeal being successful [18, 19])

The task of the judge, having considered all the matters set out in s3(1) of the 1975 Act, was to answer two questions: (1) Had financial provision been made for the claimant as would in all the circumstances of the case be reasonable for her to receive for her maintenance? (2) If not, what financial provision would be reasonable in all the circumstances for the claimant to receive for her maintenance? Essential to each of those two questions was the concept of reasonable ‘maintenance’. In relation to the argument that the judge had approached the question of maintenance incorrectly, and that the award was excessive, the often-cited dictum of Browne-Wilkinson J in Re Dennis, that ‘the word “maintenance” connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at a rate appropriate to him’ was considered. That statement permitted regard to be had to the fact that some people had a more expensive lifestyle than others [11, 23]. Similarly, in assessing what was reasonable maintenance, the court had to have regard to the nature and quality of the lifestyle previously enjoyed by the applicant and the deceased. There was no objective standard of what was reasonable for everybody; rather, the standard was flexible, to suit the circumstances of the case. Value judgments were judgments on which reasonable people could differ and judges could have different views about what was reasonable without being overturned by the Court of Appeal [13, 27].

When an appeal was against a judgment of what was or was not reasonable under an Inheritance (Provision for Family and Dependents) Act award the court had to be satisfied that the judgment was wrong in the sense that it was either erroneous in principle because the judge had misunderstood the law or because he had come to a decision that was plainly wrong, having regard to the facts that he has found on the evidence and the proper application of the law to those facts. It was exceptional therefore for permission to be given to appeal against such decisions [3]. It had been suggested that the trial judge had been wrong in his acceptance and interpretation of evidence that was less than satisfactory. However, the case did not come any where near the case where it could be said that the judge had misunderstood or misinterpreted some important evidence that was before him. Time and time again, particularly in relation to things like outgoings, judges had to make an assessment on the basis of what evidence they have because it was a matter on which they probably never would receive perfect evidence. In this case, there had not been any misdirection of the law. There was no misunderstanding by the judge of the facts that he found on the evidence before him. He correctly applied the law to the facts and this was really no more than an attempt to reargue the case on those facts [18].

JUDGMENT LORD JUSTICE MUMMERY: [1] This is a renewed application for permission to appeal. The application relates to an order made by HHJ Kaye QC on 23 October 2007. There were before him a number of applications. The one with which the proposed appeal is concerned is the application that was made under the Inheritance …
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Counsel Details

Mr A Riza QC (Goldsmith Chambers, Ground Floor, Goldsmith Building, Temple London EC4Y 7BL, tel 020 7353 6802, email instructed by Freedman Green (105 Boundary Road, London NW8 0RG, 020 7625 6003, email appeared on behalf of the appellant. Mr Evan Price (10 Old Square, Lincoln’s Inn, London WC2A 3SU, tel 020 7405 0758, email instructed by Nockolds (Market Square, Bishop’s Stortford, Hertfordshire CM23 3UZ, tel 01279 755 777, email appeared on behalf of the respondent as an observer.

Cases Referenced

Legislation Referenced

  • Inheritance (Provisions for Family and Dependants) Act 1975, ss1(1B) and 2