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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Williams v Williams [2001] EWCA Civ 1506 (10 October 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1506.html
Cite as: [2001] EWCA Civ 1506
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COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL A
STAY OF EXECUTION AND PERMISSION
TO RELY ON FURTHER EVIDENCE
Strand London WC2 |
||
B e f o r e :
____________________
| SARAH LINDSAY WILLIAMS | ||
| - v - | ||
| DONALD ANDREW WILLIAMS |
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Notes of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
The Respondent did not attend and was not represented.
____________________
Crown Copyright ©
- LORD JUSTICE THORPE: This is an application of 30th May 2001 for permission to appeal the order of His Honour Judge McNaught sitting in the Swindon County Court on 21st May. He himself sat on appeal from an order made by District Judge Field on 5th September 2000. These were ancillary relief proceedings between Mr and Mrs Williams, following the breakdown of their marriage. What was in play was £32,000 of capital, being the net equity upon realisation of the former matrimonial home, and the amount of periodical payments due to Mrs Williams upon the District Judge's finding that she did not have an actual or notional earning capacity because of her obligations to the children of the family.
- The solution of the District Judge was to give Mrs Williams the entire capital sum and to order Mr Williams to pay her £450 per month by way of periodical payments. He also condemned Mr Williams to pay three quarters of Mrs Williams' costs, she being publicly funded. Within the judgment is a finding as to the rate of Mr Williams' voluntary payments for the children at that stage. He certified that he was paying £400 per month, whereas the wife put it at £286 pounds. The District Judge accepted the wife's evidence on that dispute. Mr Williams makes the fundamental complaint that he had incontrovertible evidence of payments from his bank to hers in the monthly sum of £400, save for one month of lapse, and that the solicitor then representing him failed to put that corroborative evidence before the court.
- When Mr Williams exercised his right of appeal to the Circuit Judge, it appears that, either by agreement between solicitors or by some sort of order which I have not seen, he was required to put up the sum of £2,000 by way of security for the costs of the appeal. I am mystified by that provision because in my understanding of the jurisdiction, there is no power to order security for costs of such an appeal.
- Be that as it may, when the case came before Judge McNaught, again both parties were represented. The judge heard submissions by the parties' advocates and came to the conclusion that the District Judge's finding was within the discretionary range. Now, between the date of the hearing before the District Judge and the date of the hearing before the Circuit Judge, there had been a very important development. In October Mr Williams was assessed by the CSA, and with effect from 1st December 2000 he has been being paying regularly the monthly sum of £559 for his children. That must have had a fundamental impact upon the financial equation, and particularly the extent of his obligation to make monthly periodical payments to Mrs Williams. The point does not seem to have been brought out at the hearing before the Circuit Judge, or, if it was, it does not seem to be reflected in the brief judgment that was transcribed, save that at page 3, the judge did record a submission from Mr Williams' counsel that the periodical payments were excessive now that Mr Williams had been assessed to pay the £559 for child support plus £50 back payments. On that, Mr Joshi submitted that the periodical payments should be at the rate of £200 per month for a finite period of three years. The judge did not seem to accept that submission.
- Another curiosity of the hearing before Judge McNaught is that the order as drawn does not deal with the costs of the appeal. The order simply says, in paragraph 2, there be detailed public funding assessment of the costs of Mrs Williams; and in paragraph 3, that the moneys in court, together with any interest accrued, be paid to Mrs Williams' solicitors "in discharge or part discharge of any costs liability arising." Absent an order that Mr Williams pay the costs of the appeal, the only liability was the liability established by the order of District Judge Field. Mr Williams has suggested that the order as drawn may be incomplete, and that in exchanges after judgment, which have not been transcribed, the judge in fact condemned him in the costs of the appeal.
- Now, there is certainly some evidence to suggest that Mr Williams has been hard done by the Circuit Judge's failure to re-evaluate in the light of the change of circumstance that had arisen on 1st December 2000, but Judge McNaught may have taken the position that his only function was to review whether the order made by the District Judge was right at the date it was made, namely 5th September 2000.
- There is some support for that hypothesis in the fact disclosed today by Mr Williams that no effort has been made by Mrs Williams to enforce the order of 5th September 2000 and no payment has been made thereunder. It may be that Mrs Williams has realistically taken the view that, having got the entire available capital and having got £2,000 on account of her costs and being in regular receipt of the CSA payments, she is not going to get any more out of Mr Williams.
- I have to ask in the end whether this application passes the high test set by section 55 of the Access to Justice Act 1999, namely whether Mr Williams has demonstrated some important point of law or practice or that there is some other compelling reason. He has endeavoured to do so in his four fundamental submissions.
- Points one and two assert that there has been a fundamental injustice flowing from Mrs Williams' failure to serve a notice of issue of public funding certificate relating to the appeal until the day of the hearing itself. I do not regard that as approaching anywhere near an important point of law or practice. In any event, it must have been or should have been reasonably clear to Mr Williams that his former wife was legally aided since paragraph 4 of the order of the District Judge of 5th September provided for an assessment of her public funding costs.
- He then says that there is a point as to whether courts should be making orders compliance with which would lead to bankruptcy. That is a generalisation and as in every other case turns upon an analysis of the facts and really reduces to no more than the simple question, was the order excessive on the facts? So I cannot regard that as being a point of law or practice of particular significance.
- Finally, he complains of the erroneous finding of fact made by the District Judge. The opportunity to correct that was undoubtedly there in the hearing in the County Court before the Circuit Judge, and again it does not constitute an important point of law or practice. So if there has been the imposition of an impossible burden, it does not require this Court's correction, for Mr Williams has his right to apply in the County Court for variation of the existing order for periodical payments and for remission of any arrears currently due.
- Mr Williams can take some comfort from the practice of the court which is almost never to enforce arrears that are more than 12 months old, so he has a practical choice either to let sleeping dogs lie, maintain his CSA payments and hope that his former wife will not initiate proceedings; alternatively, if such a strategy leaves him uncomfortable, he has the option of himself initiating proceedings for variation. It is not for me to advise him between those two courses.
- Today I have delivered a fuller judgment than is customary, first to explain to Mr Williams why his application fails, and secondly so that he has some abiding record of proceedings in this court which could be advanced should he either initiate or find himself respondent to future proceedings in the County Court.