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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 >> Hassan & Anor v Hassan [2001] EWCA Civ 1635 (16 October 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1635.html
Cite as: [2001] EWCA Civ 1635
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(District Judge Moorhouse)
Strand London WC2 |
||
B e f o r e :
____________________
| ABDUL-HASSAN MOHAMMED HASSAN | Appellant/Applicant | |
| -v- | ||
| MORWENNA HASSAN | Respondent |
____________________
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The respondent did not appear and was not represented.
____________________
Crown Copyright ©
- LORD JUSTICE THORPE: This is a very sad case in which there have been ancillary relief proceedings between husband and wife on the breakdown of a marriage which took place in 1973 and which has been blessed by three children. They are all girls and they have all done very well in life and are a great credit to their parents.
- Sadly, the husband and wife were unable to agree the financial consequences of the breakdown of the marriage and accordingly contested proceedings developed in the Principal Registry. They came to their culmination on 20th April 2001 before District Judge Moorhouse. The husband was in person; the wife was represented by experienced lawyers. The district judge heard evidence over the course of several days. She then gave her ruling, which was undoubtedly adverse to the husband in the sense that she found that he was guilty of breach of the duty of full and frank disclosure. She held that he had assets beyond those that he had revealed in preparation for the hearing. She was unable to quantify the extent of those undisclosed assets, but she held that she was entitled to draw inferences against him.
- It is unnecessary to read in detail from her judgment but, in paragraph 21, having said that the husband had given obstructive and unhelpful answers to questions and had been guilty of non-compliance with court orders, she said that there were, in addition, characteristics creating unusual problems. Documents retrieved from the personal computer had given rise to an assumption of "far greater investment than may correctly have been the case, or is the case". That gave "a veneer to prolonged and ever increasing investments by the husband" uncharacteristic of the standard of living of the family. So the district judge's eventual conclusion that the wife should have the home that had been provided by the husband for the family, and that, in addition, she should have a clean break of a £50,000 lump sum and £20,000 towards her costs, was an order that did not rest on the foundation of clearly ascertained assets.
- Any case in this category presents the court with an additional problem. In a sense, the outcome inevitably risks injustice since it rests, not on incontrovertible fact, but on speculative assessment. Mr Hassan feels that this was fundamentally unjust. He denies that he was guilty of any breach of the duty. He points to an agreement between the parties that the property should be equally divided between them. He points to the fact that the wife has walked away with the vast majority of the incontrovertible assets.
- There are two observations to make about that. The first is that the obligation to make findings of fact rests with the trial judge, who has the advantage of seeing and hearing the witnesses. It is almost impossible for an appellate court to think itself in a superior position to do justice than the court of trial, which has had the opportunity of hearing the witnesses tested through the process of cross-examination.
- The second observation is that our family justice system does provide an absolute right of appeal. Mr Hassan exercised that right of appeal and in due course appeared before Mr Justice Coleridge on 22nd May 2001. I do not have a transcript of the judgment of Mr Justice Coleridge, but I do have a note of his judgment provided by the solicitors who attended on behalf of the wife. It is quite plain from that brief note that the judge was satisfied with the justice of the findings and conclusions reached in the Principal Registry the preceding month.
- Our family justice system does not allow a litigant a second appeal. The review of the function of this Court concluded that there had to be some limit set on the litigant's right of appeal. Accordingly, section 55 of the Access to Justice Act 1999 provides that, where there has been an appeal in the court of trial, this Court must not grant permission for a further appeal unless there is some important point of law or practice or some other compelling reason so to do. That is a very high hurdle and Mr Hassan's case does not begin to clear it.
- I am sorry that this outcome rankles so profoundly. I am sorry that Mr Hassan feels that the process of division by litigation has resulted in great injustice. I cannot say that there has been no injustice in this case. Any system of justice is necessarily fallible. But there must be, on Mr Hassan's part, some recognition of the boundaries in any system of justice. It must be recognised that there is first of all the fundamental fact-finding function of the court of trial and that right of appeal beyond that is not an absolute right. Plainly, Mr Hassan's rights within the family justice system were exhausted on 22nd May 2001 when Mr Justice Coleridge dismissed his appeal.
- There is nothing that I can do. Mr Hassan has simply got to adjust to the reality that the division ordered in the court below is immutable. He has mentioned that he is constrained from complying with the lump sum order because some charge has been placed on his own home. That is not something which this court can investigate. That is something properly raised in the Family Division by way of application in relation to the implementation of the order.