England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO RELY
ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Wednesday, 10th October 2001

1. LORD JUSTICE THORPE: This is Mr Cordle's application for permission to appeal the order of Her Honour Judge Davis given in the Sheffield County Court on 3rd May 2001. His application to this Court is dated 12th June 2001 and is therefore slightly out of time, but that is a lapse for which Mr Cordle has explanation and today I am ready to overlook it. The real question is whether he can begin to overcome the very considerable burden of section 55 of the Access to Justice Act 1999. He has had his appeal, and on current law and practice he should not be entitled to litigate further unless there is some important point of law or practice or other compelling reason.
2. The first determination in the County Court was made by District Judge Kirkham at a hearing on 5th March 2001, expressed in a reserved judgment made available on 20th March 2001. It was, in fact, the wife who appealed his order by notice dated 10th April 2001, served on Mr Cordle on 19th April. Mr Cordle in person responded to that service with what seems to be a cross appeal, which he says was his immediate response to the letter from his former wife's solicitors. So the judge, Judge Davies, was correct to say in her opening sentence:

"This is an appeal and cross appeal against an order for ancillary relief made by District Judge Kirkham on 5th March..."

3. But in reality the appellate process had been initiated by the wife, and the husband's cross appeal was in reality little more than an endeavor to uphold the order of the District Judge.
4. Now, Mr Cordle, in trying to surmount the difficulties presented by the fact that this is a second appeal, has contrasted the care with which the District Judge conducted the hearing and the reliability of his extensive fact finding with what he describes as a relatively perfunctory hearing before the Circuit Judge and an immediate judgment which he says is replete with error. He points out that the only criticism he would make of the fact-finding exercise of the District Judge is that at page 2 of his judgment, the District Judge, having recorded a Standard Life bank account frozen with a balance of over £6,000, went on to say that at the time of separation it had contained £18,500. Of that, Mr Cordle says it is perhaps strictly accurate, but an irrelevant observation since that heightened balance was very transient and reflected only the collection of the value of an insurance policy which was immediately diverted into either property improvements or invested in an ISA.
5. In the judgment of the Circuit Judge, he points to the perpetuation of the error, or if not error irrelevance, at page 3 of her judgment, and then seeks to show that she muddled the matter on the following page when, at letter B, she says:

"In addition to the matters to which I have referred the husband has accepted that he has had the proceeds of another policy in the sum of £18,000."

6. As Mr Cordle says, there was never another policy in the sum of £18,000 over and above the balance in the Standard Life account that had been referred to on the previous page.
7. He also complains that at page 3 the judge erroneously stated that there were documents before the District Judge giving Mr Cordle's income as £4,400 per anum, and Mr Cordle says that is simply error or invention. There was no such document.
8. Finally, Mr Cordle points to the fact that the judge, having seemingly accepted the findings of the District Judge and his analysis of the relevant financial circumstances, then rushed to a conclusion not sufficiently explained, that the order did not adequately meet the needs of the wife and the children. She continued:

"The order that was made, in fact, produced less than half for this wife by way of clean break."

9. Mr Cordle has, at page 157 of his present bundle, demonstrated that the adjudication was almost exact equality, the effect of the District Judge's order producing for Mrs Cordle total assets of £188,500 and for him £189,000.
10. I confess to some misgiving in extending proceedings in this court further. The difference between the result worked by the District Judge and the result worked by the Circuit Judge is a difference of £25,000, by which I mean the Circuit Judge's cutting of the cake gave Mrs Cordle £25,000 more than the District Judge had given her. A sum like that is swiftly matched by costs in this court.
11. I also have some difficulty in demonstrating that the section 55 barrier has been crossed. However, I will direct that this application for permission be heard at an oral hearing on notice with appeal to follow if permission granted. It is possible that the time has come to consider whether in this field the task of the Circuit Judge in reviewing the order of the District Judge should not be brought within ordinary appellate parameters, by which I mean no interference absent manifest error.
12. The additional factor that inclines me to extend proceedings is that if the errors of fact asserted by Mr Cordle are made good, the end result is injustice, and that is something that Mr Cordle clearly feels he has suffered. If that feeling can be demonstrated to be well founded in an objective appraisal by a court, then its correction is something which cannot be impeded by the statutory restriction, particularly in a field where the routes of appeal in the court of trial have not been reviewed and reformed in the same way as have been the routes of appeal in the civil justice system.
13. So this next hearing for which I give a time estimate of one to two hours will be listed in a constitution of three judges, if practicable; if not, two; a constitution of which I am a member and a constitution presided over by the President, if it is possible to list it in either the week commencing 5th November or the week commencing 12th November. I will ask the shorthand writer to expedite the transcription of this short judgment so that it can be made available to Mr Cordle and to the wife's solicitors so that they know precisely the points they have to meet at the next hearing on notice.
Order: Application allowed.