England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CANTERBURY COUNTY COURT
(Her Honour Judge Andrew)

		Royal Courts of Justice Strand London WC2 Thursday 21st June, 2001

1. LADY JUSTICE HALE: This is an application for permission to appeal and an extension of time in which to appeal against the order of Her Honour Judge Andrew sitting in the Canterbury County Court on 13th November 2000 in proceedings for ancillary relief following divorce. I propose to refer to the parties as husband and wife because that is the reason for the proceedings, although I appreciate that they are now divorced. Judge Andrew was herself hearing an appeal from the order of Deputy District Judge Taylor, made on 23rd May 2000 in the same court.
2. I must explain to the husband at the outset that he has a very high mountain to climb in making these applications. As far as the extension of time in which to appeal is concerned, the court will look at the reasons for the delay and the merits of the proposed appeal. However, the court will have to be fair to both parties and to their children and take into account the impact upon them of any delay that has taken place.
3. The application for permission to appeal was made on 11th April 2001. This is many months after the date of the order and the expiry of the time limit for appealing. The husband wrote to the County Court on 20th November 2000. The County Court received that letter and treated it as an application for permission to appeal. On 29th November 2000 Her Honour Judge Andrew refused permission to appeal on the ground that there was no reasonable prospect of success. The husband received that order and wrote again, on 6th December 2000, asking for a judicial review of the case and for them to send him all the necessary papers and application forms. The court wrote a letter dated 14th December 2000 advising him that he should apply to this court for permission, and stating that the court records indicate that he had been sent the appeal leaflet on 29th November 2000. The husband tells me that although that letter is dated 14th December 2000 he did not receive it until January 2001, after he had written to the court on 12th January 2001 saying that he had not had any reply to his letter of 6th December.
4. He replied to the letter of 14th December on 28th January 2001 asking for the forms to get a judicial review. The court replied on 31st January 2001 enclosing a copy of the appeal leaflet issued by the Civil Appeals Office which includes the form and information about judicial review. Hence at the very latest the applicant had that information at the beginning of February, and he has provided no explanation for the delay between February and April. I would therefore be reluctant to treat that as an acceptable reason for the delay, but in any event I will give consideration to the merits of the application for permission.
5. Here one of the difficulties facing the husband is that this is a second appeal and, in accordance with section 55(1) of the Access to Justice Act 1999, this court can only give permission if either the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. If the decision was simply the application of established law to the particular facts of the case, the court is very unlikely to give permission. This is particularly so in ancillary relief cases. There is a decision of the House of Lords, which is binding on this court, in the case of Piglowska v Piglowski [1999] 1 WLR 1360 which points out that in a discretionary jurisdiction such as this the search in different courts for perfect justice between the parties is to kill them with kindness. That search basically is not worth the money that must be expended on it and, furthermore, the advantages of the lower courts who have seen the evidence are much greater than those of the appeal courts, who cannot look at the evidence in the same way.
6. Having said that, the background to this application is this. The husband and wife were married in 1979. They separated in December 1998, when the wife left the former matrimonial home with their two children. They were divorced in 2000. They were therefore married for a period of nearly 20 years and are now in their forties. They have two children: Japloe, who was born on 31st July 1990 and so will soon be 11; and Pleh, who was born on 15th May 1993 and so is now 8. The wife has since begun a new relationship with a new partner, and at the time of the hearing before the Deputy District Judge she was pregnant by him.
7. The wife applied for ancillary relief in July 1999. The hearing before the Deputy District Judge took place on 23rd May 2000. The husband did not attend that hearing. He applied for an adjournment in a letter dated 17th May 2000 which was received by the court on 22nd May 2000. The Deputy District Judge decided to proceed in the absence of the husband. He did so observing that the application for an adjournment was made outrageously late. He referred to the husband not corresponding with the solicitors for the wife, filing no evidence until directed by the court and containing less information in his affidavit than was required. He therefore decided to proceed because he was not satisfied of the husband's reasons for requesting an adjournment, the husband did not offer any proof regarding his lack of income or any evidence of his travel costs and inability to pay and the position must have been known to him earlier. Applying a balance of justice argument, he considered also the fact that the costs of the day thrown away would escalate unavoidably if he did not take steps to deal with matters. That is an inevitable consequence of adjournments and delays in proceedings. The costs eventually come out of the family's resources and are therefore not available to be used for the support of the family. Although the husband protests that this should have been irrelevant, in reality the court has to balance justice to all the people involved: justice to the husband but also justice to the wife and the children, and their needs are part of that balance.
8. The husband complains that that was a denial of his fundamental right to a fair trial. I agree with him that of course there is a right to a fair hearing, and in deciding whether or not to grant an adjournment in circumstances such as these great care has to be taken. Nevertheless, the Deputy District Judge did weigh up the considerations of justice to all parties and in my view this court would not have been able to interfere with the exercise of that discretion. Much more important, the husband then appealed to Her Honour Judge Andrew. Her Honour Judge Andrew heard an application relating to the couple's children and determined that they were to continue to live with their mother. She also dealt with the husband's appeal at the end of that hearing. She records, and the husband agrees, that it had been agreed that she would deal with that on submissions and the written evidence before her rather than hearing the evidence afresh. She then went on to deal with the ancillary relief matter in very considerable detail, and with great care.
9. It seems to me therefore that any problems caused by the earlier decision to proceed were in fact cured by the hearing before Her Honour Judge Andrew. I appreciate that the husband says that this means that the evidence was not tested in cross-examination and the like. However, not only was that the result of the way in which matters were, by consent, conducted before Her Honour Judge Andrew, she had had the benefit of seeing and hearing the parties in the context of the residence application, and this will have given her one of those benefits of a lower court in coming to some appreciation of the character and personalities of the parties, and she had given very careful consideration to the evidence that was before her.
10. Although the husband says that she simply took what the District Judge had decided, her judgment reveals that she did much more than that and that she took into account new evidence as to the husband's earnings and income, and that she also treated with considerable care some of the findings of the Deputy District Judge, particularly in relation to the husband's earning capacity. In my view, therefore, this possible ground of challenge would have no prospect of success.
11. The further set of arguments put forward by the husband is that the orders made were not correct and that his own proposals are a much fairer disposition of the family's assets. The Deputy District Judge had ordered the transfer of the former matrimonial home, which was held in joint names and had an equity of around £60,000, into the wife's sole name. The husband was to keep his two pension plans, which were at that stage worth around £34,000. He also ordered the wife to transfer her quarter share of the husband's company to him, although it was agreed that the company was virtually worthless. He made an order for nominal periodical payments.
12. The husband proposes that the former matrimonial home should be sold and the proceeds divided, and he also suggests that the wife should share with him his current pension benefits. The Circuit Judge dismissed the appeal, although it is quite clear, as I have said, that she considered the evidence with great care and considerable detail and, while giving due regard to the District Judge's exercise of his discretion, considered the matter afresh. She pointed out that the Deputy District Judge's order divided the assets roughly two-thirds to one-third in favour of the wife. In summary, she considered that this was appropriate. First consideration has to be given to the welfare of the minor children. There was therefore a need to provide the wife and the children with a home. Further, the husband had a significant earning potential compared with the wife's very limited earning potential. It is perhaps on this point that the husband takes greatest issue with the Deputy District Judge and with the Circuit Judge.
13. The husband had been employed as a planning officer with the Dover Harbour Board, but was made redundant in 1992 and received a year's salary in redundancy pay amounting to £25,000. Thereafter he obtained an MBA qualification and set up his company, an investment company.
14. The evidence as to the husband's current earnings was rather more difficult. Before the District Judge they appeared to be very limited, before the Circuit Judge it appeared that he was providing nursing agency services and the income estimated would amount to some £7,500. The Deputy District Judge's view was that the husband had an earning capacity of £25,000 per annum and had chosen to surrender that in favour of pursuing his own venture. The Circuit Judge pointed out that she had seen no evidence to the availability of jobs to the appellant, and his submission to her was that he had applied for scores of jobs without success and that he was unable to secure employment commensurate with his qualifications. She pointed out that she had seen no documentary evidence to support either of these contentions and she therefore tended to the view, on the balance of probability, that the husband could have obtained better employment than he has chosen to do so, and it was clearly case that he has an earning capacity at the very least at the level earned by him in 1992. In her judgment it was reasonable to expect the husband to take steps to acquire more remunerative employment.
15. The husband challenges that finding. He says that it has been very difficult for him to obtain proper employment, so much so that he has now decided to go back to college to train as a maths teacher. It is for that reason, as well as his responsibilities to his new wife, to his mother in Sierra Leone and to his children from his first marriage, that he wishes to extract the capital from the matrimonial home. However, in my view there is no real prospect of the Court of Appeal interfering with that clear finding by the Circuit Judge, who had had the benefit of considering the evidence presented to her. The relevant factor in these cases is earning potential, rather than actual earnings.
16. Having considered the judgment of the Circuit Judge with great care, I can detect nothing in it which meets the criteria for granting permission to appeal. This appeal does not raise an important point of principle or practice and I can see no other compelling reason for the Court of Appeal to hear it. The appeal would be bound to fail. For those reasons, I would not give an extension of time to appeal or grant permission to appeal in this case.
ORDER: Applications for an extension of time and permission to appeal refused. (Order not part of approved judgment)