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 BRISTOL COUNTY COURT
(HIS HONOUR JUDGE NELIGAN)

		Royal Courts of Justice Strand London WC2 Thursday, 12 July 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal from the order and judgment of His Honour Judge Neligan made on 2 February 2001 in the Bristol County Court. As such it is an application for a second-tier appeal. Judge Neligan's judgment was itself an appeal from the order and judgment of District Judge Frenkel given on 30 November 2000. As such this application can only be granted if some important point of principle or practice is raised or if there is some other compelling reason for the Court of Appeal to hear the appeal.
2. Mr Khan seeks to bring proceedings against his ex-wife and two other defendants arising out of ancillary relief proceedings which took place in 1994 in the context of the divorce which his wife obtained on the ground of the irretrievable breakdown of their marriage. As such that divorce itself was uncontested .
3. In the ancillary relief proceedings, which were contested, no findings of conduct were made against Mr Khan but an order for payment of £5,000 was made. That left Mr Khan with his home, valued then at some £35,000, and the bulk of his cash savings. The ancillary relief was granted by District Judge Frenkel on 18 March 1994 and on appeal upheld by Judge Dyer on 1st September 1994. District Judge Frenkel put the matter in this way:

"I have to balance the need of Mrs Khan for some savings against that of Mr Khan and the money that he needs to carry him through his old age.

For the purpose of this Order I make no findings in relation to the allegations of behaviour against Mr Khan and the order I make does not take such behaviour into account.

I therefore order that Mr Khan pay a lump sum of £5,000 to Mrs Khan and that Mr Khan pay the costs of these proceedings."

4. On appeal Judge Dyer said this:

"What [Mr Khan] cannot understand is that because somebody is very unhappy and talks to their relations, that he has thought that this is a conspiracy to deprive him of his money. In fact he has got rid of the cost – and he was very keen to tell me the costs that he incurred in this manner – and he has been left with a substantial part of his capital.

It is not possible to consider that any re-opening of this matter could reach any other conclusion. I have heard him at length reading two long statements and saying anything he wanted to. At the end of the day this is a really very simple case. It is a case of an elderly man married to a much younger woman, who does not speak the local language, and who is utterly dependent on him for everything. And in those circumstances she has found it necessary to leave him, and the divorce has taken place."

5. Unfortunately Mr Khan could not accept the ancillary relief order made against him. Already at that time his appeal to Judge Dyer was on the basis, inter alia, that his wife had conspired with others to defraud him. He sought leave to appeal from Judge Dyer's judgment to the Court of Appeal but the Court of Appeal refused him leave on 12 June 1995. He sought to petition the House of Lords. At any rate, he drafted and signed a petition which is in the bundle which he has prepared for me.
6. More than six years later Mr Khan has started up again his original complaint. On 4 October 2000, that is over 6 years from the decisions of District Judge Frenkel and Judge Dyer in 1994, Mr Khan filed a claim in the Bristol County Court against not only his ex-wife but also the interpreter, the daughter of a neighbour, who assisted her in the 1994 proceedings, and another neighbour identified as Hanif.
7. His claim is valued at £50,000 but, without particulars of that figure, is put on the basis of false evidence having been given by the three defendants in the ancillary relief proceedings causing loss. No particulars are given of the false evidence complained of and in a subsequent letter, dated 23rd May 2001, to the Civil Appeals Office Mr Khan seems to make particular complaint of allegations made in Mrs Khan's divorce petition to the effect that the matrimonial home was in a bad condition. That seems to have given Mr Khan particular offence and he has submitted evidence from witnesses obtained in 1996 as to the fair condition of his home.
8. What happened is that following the filing of his new claim Mrs Khan's solicitors wrote to the court and asked the court to strike it out as either having no real prospect of success, i.e. under CPR Part 24 or under CPR 3.4 as disclosing no reasonable grounds. District Judge Frenkel did strike out the claim on the latter basis as disclosing no reasonable grounds for bringing the claim and Judge Neligan in a reasoned judgment upheld that strike-out. I have to say that I agree.
9. It is only in the rarest of cases that an unsuccessful litigant can complain that an earlier judgment has been procured by fraud. There is no sign whatsoever that those circumstances apply here. In the first place the award of £5,000 did not turn on any allegations of conduct but on the circumstances of the parties, which essentially were not in dispute. In as much as Mr Khan complains that his ex-wife was lying or had only married him in order to defraud him he made that case at the time to the court and failed in it.
10. His present claim is wholly unparticularised. In as much as he complains about allegations made about his home, they seem to have played no part in the ancillary proceedings' judgments at all. In any event, the judgment of which he complains is more than six years prior to his new claim and any possible complaint is time- barred. There is, in any event, no important point of principle or practice in issue and no compelling reason for an appeal.
11. I have gone into the matter in some detail in order to explain my reasons fully to Mr Khan, but I am sorry to say that Mr Khan is still fighting his old battles. I quite understand his upset at the failure of his marriage. This is part of the sadness of things. But he cannot stir up the past in these proceedings. I am sorry, Mr Khan. I am grateful to you for your full explanation and I have given you my reasons, but your application is not allowed. Thank you very much for your assistance.
Order: Application for permission to appeal refused.