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 WANDSWORTH COUNTY COURT
(His Honour Judge McDowall)

		Royal Courts of Justice Strand London WC2 Thursday 28 June 2001

Thursday 28 June 2001

1. LORD JUSTICE THORPE: This is an application by Mr Gosain, who was the petitioner in divorce proceedings in the Wandsworth County Court. The respondent to those proceedings is Usha Gosain, his former wife. Mr Gosain this afternoon seeks permission to appeal the order of the judge refusing him an appeal from the judgment of the district judge, District Judge Plaskow, dated 19 March 1999, granting relatively substantial ancillary relief to the respondent wife.
2. The order which Mr Gosain seeks to appeal was made by His Honour Judge McDowall on 8 December 2000. The application to this court for permission to appeal was received on 31 January 2001. Before Judge McDowall counsel appeared on behalf of Mr Gosain to seek the adjournment of his appeal against the district judge's order for medical reasons. The ruling of the circuit judge was that the application for adjournment failed and that the appeal should proceed forthwith. That led to an application for permission to appeal the discretionary refusal of an adjournment, and the judge went on to give reasons for refusing permission to appeal.
3. The application for permission is not on its face particularly impressive. However, Mr Hussain, who is a member of the Bar and who appeared before Judge McDowall for Mr Gosain, apparently instructed by a firm of solicitors called Arani & Co, today appears, as he asserts, as Mr Gosain's McKenzie friend. However, it transpired that Mr Hussain sought to represent Mr Gosain as his advocate. Having ascertained that he was not remunerated so to do, and was here only out of friendship to Mr Gosain, I permitted him to speak on his friends's behalf.
4. Mr Hussain's contribution has resulted in the court receiving a chronology, as well as a skeleton argument dated 27 June. Those documents were available to the court only this morning. But there are two bundles which have been properly paginated and indexed, and there is within this confusion a seed which has the capacity to grow into a plant of substantial value to Mr Gosain. This seed is not apparent from his notice of application, nor is it readily apparent from the skeleton argument supplied by Mr Hussain, although in paragraph 3 he does include this sentence: "Flat in Delhi; evidence to suggest not sold as [wife] maintained throughout." When taxed with the inadequacy of that cryptic statement, Mr Hussain drew attention to a statement signed and dated by his client on 8 May 2001. Within that statement, at page 16 of the bundle, is a section headed "Respondent's flat". The opening sentence reads:

"There are reasonable grounds for doubting the written and oral evidence given by the Respondent both in the course of the proceedings and before in relation to her flat at Kondli Gharoli India."

5. In the following paragraph, Mr Gosain states:

"I have since recovered information from India that may suggest that the Respondent had not disposed of her flat as she has contended all along. These documents tend to show that the flat is still in the Respondent's name."

6. The documents in question are to be found in volume 2 at pages 186 and 187. The first document seems to record the purchase of flat 10B on the ground floor at Kondli Gharoli, on 14 March 1990 for 129,400 rupees. That document is stamped 7 February 2001 and is attested by a notary public in Delhi. Page 187 appears to be a receipt dated 7 February 2001 by the Delhi Development Authority for the sum of 1,838 rupees, paid by the respondent in relation to flat 10B on the ground floor at Ranjeet Naada, New Delhi in the locality of Kondli Gharoli.
7. This is undoubtedly of potential relevance to the application for permission. For within the judgment of the district judge, he records the evidence of the wife to the effect that she had sold her flat prior to responding to the husband's newspaper advertisement and that she abstained from an alternative purchase in reliance on the husband's assurance that he would look after her for life. The husband's evidence was to the effect that the wife had never mentioned to him that she had another property, or that she intended to purchase any other property. This was never discussed and not once mentioned. On this conflict the district judge preferred the evidence of the wife. He held – and I quote from volume 1, page 29:

"At the time of the marriage the husband clearly knew that the wife was employed and I am satisfied that he was told that she had sold her property with the clear intention of purchasing another."

8. So, only because of the production of the documents obtained on 7 February, I adjourn this application for further oral hearing but on notice to the wife, with appeal to follow if permission is granted. The time estimate for the next hearing will be one hour. An application to file fresh evidence will have to be made.
9. I only add that, apart from this fresh evidence, I would have refused this application for permission, on the simple basis that a judge in determining an application for adjournment has a very broad discretion. There is nothing to suggest that the decision of Judge McDowall exceeded that broad discretion. However, had Mr Gosain produced to Judge McDowall, as part and parcel of his application for adjournment, the documents obtained in Delhi of 7 February 2001, manifestly there might have been a different outcome.
10. I put on record that the wife's solicitors, Messrs Lloyd Brennand, have sent a representative to this hearing this afternoon and she has taken a note of this judgment so that her principals and her client will be well aware of the point that they have to meet at the next hearing of this application for permission, and of the appeal if permission be granted.
ORDER: Application adjourned to be heard on notice, with appeal to follow if permission granted. (Order not part of approved judgment)