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 BLACKBURN COUNTY COURT
(Her Honour Judge Kushner)

		Royal Courts of Justice Strand London WC2 Wednesday, 18th July 2001

Wednesday, 18th July 2001

1. LORD JUSTICE THORPE: There have been relatively acrimonious ancillary relief proceedings between Mr and Mrs Champ which came for trial before District Judge Talbot on 13th December 2000. He delivered a written judgment and that supported an order which was simplicity itself. The wife was to transfer to the husband her half-share in the jointly owned villa at Alicante in Spain.
2. The wife was dissatisfied with the outcome and exercised her right of appeal. The appeal came before Her Honour Judge Kushner QC on 27th April 2001. She heard no evidence, only submissions from counsel, Mr Jay and Mrs Singleton, who had appeared in the court below. She varied the order of the District Judge in relation to the Spanish villa saying that it should be sold, the wife having conduct of sale, and that the wife should receive 25%, beyond the 50% that was hers anyway, so that she would enjoy three-quarters of the sale proceeds and the husband only one-quarter. That is a relatively significant variation of the order below. The justification found by the judge was that in her discretionary view the husband's misconduct deserved greater reflection than it had been given by the District Judge.
3. The husband applied for permission to appeal on 24th May, an application which I refused on paper on 13th June. The ground for refusal was essentially that there had already been an appeal in the court of trial, and, accordingly, it was not open to this court to grant permission unless there were demonstrated some important point of law or practice or some other compelling reason. I said, in brief terms, that the criticisms of the Circuit Judge did not justify the grant of permission. She was bound to exercise an independent discretion on the facts as found by the District Judge. She had not made additional findings against the husband so much as to give additional weight to the misconduct accepted by the District Judge.
4. Mr Jay this morning exercises his right to renew the application at an oral hearing, and he has made a number of criticisms of the judgment of the Circuit Judge to sustain his case that she went beyond the boundary of the factual findings of the District Judge, having herself heard no evidence. A number of these complaints seem to me to be almost too trivial to merit mention, but to make good that categorisation I will take two by way of illustration.
5. Mr Jay complains about a sentence that appears at page two of the judgment:

"We do not realistically know [the value of Grey & Co], because the District Judge's considerations did not extend that far."

6. That seems to me to be a perfectly fair restatement of what the District Judge had said at page 4 of his judgment, namely: "the capital value of his interest in Grey & Co is uncertain". Likewise, Mr Jay criticises the judge for saying of the wife's accommodation:

"Whether it is a flatlet, or a room in Woodlands, I am not in a position to say."

7. He accepts that there is no clear finding as to the nature of the wife's accommodation in the judgment of the District Judge, but he says that during the course of counsel's submissions the judge was informed that the wife had a flat, and not a room, at Woodlands. No judge is to be criticised for expressing herself in uncertain terms when all that she had to go on was something said by counsel during the course of submissions.
8. Mr Jay's real criticism is of the judge stating (at page 4 of her judgment) that the District Judge had found that the wife's signature was forged to promote a borrowing charged on Woodlands. The sentence that is criticised reads thus:

"The District Judge found, and it is accepted, and this hearing is working on the basis that the wife did not know that Woodlands had taken out the loan; did not know that the property was charged to support it, and that the wife's signature was forged to promote that transaction."

9. In the court below the District Judge recited the rival cases of the parties thus:

"[The wife] said that the husband, who of course was not a director of Woodlands, and Mr Ingham his partner in Grey & Co, purported to sign the bank's loan agreement on behalf of Woodlands, and her husband obtained her signature to the legal charge document by holding out to her that she was signing a document relating to a drainage problem with which the solicitors were dealing at the time. Mrs Hawtrey gave evidence that her own signature had been forged on the charge document where she had signed it as witnessing the affixing of the Woodlands company seal. Her husband's evidence was that the wife knew all about the loan, agreed to the legal charge and there had been no forgery."

10. The District Judge's finding is at page 8. It is in these terms:

"I find that the taking of the bank loan by Woodlands with the charging of its property in December 1992, and the setting up and operation of the joint Marsden Building Society account were effected by the husband by subterfuge and without the wife's knowledge. It would be inequitable for me not to take this conduct into account, and weigh it in the balance."

11. Although the District Judge's finding is unspecific, it is perfectly plain that it is a rejection of the case put by the husband and an acceptance of the case advanced by the wife. Accordingly, in those circumstances, I do not consider that the Circuit Judge is to be criticised for the passage under review.
12. Mr Jay's second substantial submission is that the end result for which the Circuit Judge elected is simply unfair to his client since it leaves the wife with the security of about a quarter of £1 million worth of assets and leaves him with only about £25,000 with which to confront a sea of difficulties.
13. I am grateful to Mr Jay for presenting this application with great professionalism. But, standing back, as I must, and posing the question, "Does his submission in summary meet the high test set by section 55?", I can only answer that in the negative. The whole point and purpose of section 55 is to ensure that as far as possible the right of appeal is confined to the court of trial. This is a complex ancillary relief. There is a broad discretion given to judge's in the court of trial. There is no point of law in this application. There is no point of principle. The compelling reason that was advanced is a suggestion of injustice to the husband. The wife felt that there was injustice to her on 13th December, and I can well understand the husband feeling that there was injustice to him on 27th April; but that was the conclusion reached by the appellate judge in the exercise of his discretion, which is broad indeed, and I do not consider that anything has been said this morning to invalidate the conclusions that I expressed in writing on 13th June.
14. The renewed application is therefore dismissed.
Order: Application dismissed.