England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HER HONOUR JUDGE ANDREW)

		Royal Courts of Justice Strand London WC2 Tuesday, 17th July 2001

Tuesday, 17th July 2001

1. LORD JUSTICE THORPE: This is an application for permission to appeal the order of Her Honour Judge Andrew sitting in the Canterbury County Court, on 26th September 2000. Mr and Mrs Smith divorced and had in the aftermath assets worth approximately £33,000. The issue of division between them came for hearing before District Judge Green in the Canterbury County Court on 27th January 2000.
2. The applicant wife appeared by counsel, and the husband in person. The judge heard evidence on a number of disputed issues of fact, and he preferred the evidence of the husband to the wife wherever there was a conflict. He therefore explained that in the light of that preference he was not prepared to order to the wife the equal share of the available capital that otherwise would have been the obvious solution. He explained his position between pages 20 and 22 of his transcribed judgment. He there summarised his conclusions on five issues that had been in dispute. He went on to say that his findings on those five issues allowed him to depart from the starting point of equal division, and in the end opted for a lump sum payment, husband to wife, of £13,000 which is some £3,500 less than equality. He then concluded his judgment by saying:

"I am not going to draft the order myself, Mr Daly, I am going to ask you to draft an order which Mr Smith can have a look at."

3. There then followed some ten or more pages of exchange between the parties and the judge, in the course of which he refused Mr Daly's application for costs despite the fact that his award was manifestly in excess of the sum that had been offered in a Calderbank letter. He also said that once Mr Daly had drafted the order to give effect to judgment, Mr Smith should have a look at it. He said:

"For you to have a look at, and I'll hear any comments with you may have on it, but otherwise I will approve it for it to take effect with the decree absolute."

4. Obviously the drafting of an order to give effect to judgment is a technical task and all that the district judge proposed was entirely conventional. The order is innocuous. It exactly reflects the judge's intentions and Mr Smith had, in effect, no contribution to make towards its improvement. He tells me that it was not in fact sealed until some considerable time later, although that is not apparent from the face of the order itself.
5. He says that it must have been obvious to the district judge that he was dissatisfied with the discretionary outcome. However, I have read the transcript of exchanges, and there is not the smallest suggestion in anything that Mr Smith said of such dissatisfaction. It may be that his natural courtesy acted to his disadvantage. It seems that he wrote to the court, presumably fairly shortly afterwards, no doubt seeking to re-open the district judge's decision. The court replied on 3rd February advising him that if he were dissatisfied as to the basis upon which the order had been made then he should seek legal advice as to his rights of appeal. Mr Smith did not take the suggested course but only some months later in June or July did he seek leave to appeal out of time. He complains, and I think with justification, that after he had responded by letter of 17th February the court thereafter ignored his correspondence, and the district judge himself has apologised for the court's failure to acknowledge a letter of 18th April from Mr Smith.
6. He further points to administrative inefficiency in that his application for permission to appeal out of time was lost by the court and then its existence challenged. He was, however, able to prove that the court had cleared his cheque for the fee payable on issue.
7. Thus he came in front of Judge Andrew on 26th September some weeks later than he should have done as a consequence of the administrative errors of the court. Nonetheless, Judge Andrew heard his submissions and came to the discretionary conclusion that it was all far too late. He had had 14 days, he had had the letter of 3rd February advising him of his need to seek advice on appeal and if he had not done anything substantive or positive until the summer it was all too late.
8. Mr Smith undoubtedly has a feeling that he has been ill-used by the court and that feeling is justified in that he has established a degree of administrative error on the part of the court for which there has been partial apology. But the root question really is whether this court could or should interfere with a discretionary decision of the circuit judge determining that the application for permission of 27th July was simply too late in the day.
9. A great measure of latitude must be given to circuit judges in the determination of applications for extension of time. There is no doubt at all that this application was nearly six months late, and the judge was, in my opinion, entitled to reach the conclusion that the explanation for that delay was insufficient.
10. Accordingly, I do not think that this application for permission has sufficient to succeed. But I want to add this. It is important in deciding applications for extension to look back to the principal judgment to see whether there is a possibility of perpetration of injustice. This task was performed by Judge Andrew who expressed the opinion that even if an appeal had been lodged in time it would not have had much prospect of success. Do I share that view? I say at once that I do. The district judge had a broad discretion in determining the application on the criteria in section 25(2) of the Matrimonial Causes Act 1973.
11. It was a full and careful judgment. Maybe another district judge would have given the applicant more, maybe another district judge would have given the applicant less; but I cannot see that the award in the sum of £13,000 could be said to fall outside the broad ambit of discretion. I would be doing no favour to Mr Smith were I to admit this case to the Court of Appeal. I would only be putting him at risk of costs that might be incurred by the applicant in resisting the appeal process.
12. For all those reasons this application is refused.
(Application refused; no order for costs).