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 TEESIDE COUNTY COURT
((His Honour Judge Taylor)

		Royal Courts of Justice Strand London WC2 Monday 29 October 2001

Monday 29 October 2001

1. LADY JUSTICE HALE: This is an application dated 7 June 1999, but received on 16 July 1999, for permission to appeal out of time against the dismissal by His Honour Judge Taylor on 11 January 1999 of his application for permission to appeal out of time against an order made by District Judge Bullock on 2 March 1998 in ancillary relief proceedings resulting from the divorce between the applicant and his ex-wife. The applicant was in prison at the material times. He was convicted on 29 April 1997 of an offence of rape. He says that he was wrongly convicted and is pursuing a challenge to that conviction. He was sentenced to five years' imprisonment and eventually released in September 2000.
2. There has been a long delay since the application was made to this court. There were problems with obtaining a transcript from the County Court and there were later problems in communicating with the applicant. The matter was first listed before me on 15 May 2001 but adjourned twice from then because the applicant consulted another firm of solicitors. It was adjourned to a date to be fixed before 31 July 2001 and when it was next listed it was adjourned until today. I warned the applicant that there would be no further adjournments. I gave him more indulgence than would normally be afforded so that he could attempt to trace papers from his earlier solicitors or from the court file. At least four different firms of solicitors have represented him during the divorce proceedings. Not surprisingly, therefore, there were difficulties in tracing the papers. It has recently transpired that the new firm of solicitors had no legal aid franchise to conduct matrimonial matters so they had been instructed privately. They have now withdrawn from the case as the applicant was unable to discharge their fees.
3. In those circumstances it was appropriate to continue with this hearing. Mr Aydin has attended in person. He has placed some new material in support of his arguments before the court and, if I may say so, has made his points with great clarity and vigour. The Civil Appeals Office, to whose staff I am grateful, has also obtained the file from the county court which has greatly aided my understanding of the issues in the case.
4. The applicant came here from Turkey in 1988. Shortly after that he met his ex-wife. She was then living in public sector housing at 55 Hexham Road, Sunderland. She had lived there for many years. She had had a long previous relationship and she had grown-up children. She married the applicant on 16 February 1989. They bought 55 Hexham Road in August 1993. The applicant put in capital and the balance came from a discount because of the wife's long occupation of the house. Soon after that they also bought, in their joint names, 43 Redshanks Close, Washington. The applicant states (and I believe it to be common ground) that he paid the deposit and the legal fees, but the great majority of the purchase price was raised by a mortgage from the Northern Rock Building Society (as it then was). The applicant states that he paid the mortgage instalments. The couple moved into that property and 55 Hexham Road was let to the wife's daughter and son-in-law.
5. Thereafter there appear to have been numerous arguments between the couple. Some of these were occasioned by arguments about the rent for 55 Hexham Road and what should be done with it. The separation "started" (as the applicant put it) in August 1994 when his ex-wife left the home in which they were then living. The applicant petitioned for divorce in June 1995. The wife sought to defend and cross petition but, as frequently happens in such cases where both parties are of the view that the marriage has irretrievably broken down, the divorce proceeded on his petition and was completed in February 1996.
6. The ancillary relief proceedings continued. The husband had, according to counsel's opinion in February 1997, four different firms of solicitors acting for him. There were negotiations to settle the proceedings and in February 1997 counsel for the applicant thought that an agreement had eventually been reached. But when a consent order was drafted on the basis of that agreement, the applicant disagreed with it. The matter had therefore to go for trial.
7. The trial was listed for 8 May 1997. But in the meantime the applicant's legal aid certificate had been discharged. This is not surprising in view of counsel's opinion (right or wrong) that the settlement proposed was a reasonable one. In those circumstances the Legal Aid Fund would be unlikely to wish to continue to fund a contested matter. But before the case came on for trial, in May 1997, events intervened. The applicant had met a Miss Smith at the end of 1995 and had had a relationship with her for a while. Then in July 1996 she made a complaint of rape against him. That complaint led to the applicant's conviction in April 1997 and his imprisonment. In those circumstances the hearing which had been listed for 8 May did not take place. The important allegation that the applicant now makes to this court is that on that very day his ex-wife attended at the property at 43 Redshanks Close and removed the contents, all save a very few unimportant items and including much of his documentation, including his proof of purchase of the things that had been removed. She also removed the car.
8. The hearing was re-listed before District Judge Lancaster on 17 November 1997. In the meantime the ex-wife's solicitors had been ordered to procure the applicant's attendance at the hearing. This they duly did. But the applicant had of necessity to represent himself and he had no file. The applicant says that District Judge Lancaster therefore adjourned the case stating that the applicant needed legal representation, and so told the applicant to find a solicitor to apply for an emergency legal aid certificate; and that District Judge Lancaster also made various comments about the applicant's needs when he left prison which have encouraged the applicant to think that there may be some merit in the case he now wishes to put before the court.
9. Thereafter the matter was listed again before District Judge Bullock in March 1998. The wife's solicitors, with the support of counsel's opinion, had protested that they could not be ordered to fund the applicant's appearance at the hearing and so he was not there. The applicant also tells me today that he was placed in segregation in prison. He was moved from Frankland to Wakefield. This increased his difficulties, both in contacting solicitors and persuading them to act for him and in obtaining the papers that he required. So although a production order was made, he was unable to fund his travel to court and that was why he was not at the hearing before District Judge Bullock.
10. The circuit judge commented that District Judge Bullock had no real choice but to proceed and pointed out that matters did not go through on the nod. District Judge Bullock heard evidence from the wife, he read the submissions from the husband and no doubt he also read the court bundle which is in the court file. The matters mainly in issue, it appeared to him, were 55 Hexham Road Sunderland; 43 Redshanks Close, where the applicant had been living and where the parties had live together for a while; some Northern Rock shares which were no doubt the product of the privatisation of that building society; and the Renault car.
11. The district judge ordered the transfer of the Northern Rock shares to the wife, to be used to help pay off the mortgage debt. By that stage there were substantial arrears on the mortgage and it would appear that the house was probably in negative equity. 43 Redshanks Close was to remain in joint names (and indeed they were both responsible for the mortgage) but it was shortly to be repossessed by the building society and the husband would have to indemnify the wife against any shortfall. 55 Hexham Road was to be sold and the proceeds divided 45 per cent to the husband and 55 per cent to the wife. 45 per cent, according to the calculations then, would give the husband about £11,700. The wife would have the option of buying the husband out on an agreed valuation but any sum due to the husband was to have offset against it the shortfall from 43 Redshanks Close. Each were to keep the contents and possessions that they currently held. The car was declared to be the wife's. Otherwise the order provided for a clean break.
12. The circuit judge commented that the wife was the one at risk of having to discharge the additional liability to Northern Rock because she was not in prison, and also she had 55 Hexham Road and her share in that. He therefore considered that the order made was not particularly generous to her because it did not give her enough to house herself. It could be commented that it was not particularly generous to the husband either, as he got back less than he had put into Hexham Road and he had to pay any further Northern Rock debt out of his share. The husband sought to appeal District Judge Bullock's order but because of his difficulties in prison he had not received the order until some time later and his proposed appeal was out of time.
13. The circuit judge gave directions in November 1998 and made a further production order. The same problems arose with financing that. The applicant tried to instruct further solicitors but had further problems. The solicitors asked the circuit judge to consider adjourning the case but the circuit judge refused the application. He looked at the order and he looked at the grounds of appeal and he saw nothing of any great merit or substance. The order could not be said to be generous. Indeed he said "one would not have been surprised in some cases if the wife had sought to appeal, but she has not". It seemed to him that the person who had come out of it relatively well was the applicant.
14. The applicant does not think so. He argues, firstly, that it was unfair to go ahead in his absence. Someone should have paid for him to be brought from prison. He argues that District Judge Lancaster had effectively given him legal aid in November. That, of course, is not the case. District Judge Lancaster could not give the applicant legal aid. Only the legal aid authorities can do that and in the light of the history, which may or may not have been apparent to District Judge Lancaster, it is not difficult to imagine that no legal aid would have been granted. But the applicant argues that there was a breach of his human rights because the trial went ahead without him. The Human Rights Act was not in force at the time of these events and in any event there are circumstances where it is unjust to others not to proceed, despite the difficulties.
15. But the applicant also says that the case for both sides was not put. His case in a nutshell is that he put a great deal of money into this marriage. He was earning good money as a salesman. He bought many items of furniture and other things, of which the wife had the benefit. He paid more as a cash contribution, £14,850 appears to be common ground, for 55 Hexham Road than the circuit judge thought that he had paid. The couple went on cruises, they lived a good life. The applicant paid for improvements to 55 Hexham Road as well. A settlement which gave his ex-wife more than half of the only asset that seemed to be available was not fair. Furthermore, he says that she was really only after him for the money. She got what she could out of him. She also kept the rent from 55 Hexham Road - that was the source of the arguments - and then she did her best to get rid of him. He lists a catalogue of threats, attacks and the like against him. He also accuses her, in effect, of conspiring with his former girlfriend to make false accusations which resulted in his conviction.
16. All of that might not lead to any different conclusion. I have to explain to Mr Aydin that on a second appeal, such as this, the Court of Appeal has to be satisfied that there is an important point of principle or practice or some other compelling reason for the appeal to be heard. The Court of Appeal is unlikely to interfere with the order made by District Judge Bullock without an extremely compelling reason, because he was the person who was best able to judge how the assets should be divided. I have to explain to Mr Aydin that who paid for what is not the main criterion. The main consideration is how to share assets out fairly between the couple according to their various contributions and needs, and contributions can be other than money. Obviously the wife entered this marriage with a house. The husband had, after the marriage, worked and contributed money. They had both made contributions to the marriage: they both should retrieve something from it, exactly how much being difficult to judge. For those reasons the Court of Appeal would be most reluctant to intervene.
17. However, I am concerned about his allegation relating to 8 May 1997. Mr Aydin has produced today some evidence from others to confirm what he says. He will obviously have to produce that in more substantial form for it to have any weight with the court, not just in the form of letters from people but in the form of sworn statements with any supporting documentation. He points out that he complained to the police, and the police said that the wife was in possession of a court order. This does not, on the face of it, make sense, because the only court order that could relate to the distribution of the property between them was made in March 1998, long after this alleged intervention in May 1997. Mr Aydin says that there was a large quantity of valuable property taken which would have put a completely different complexion on the order. He also says that he bought the car, and that it was registered in his wife's name for insurance reasons. He paid his wife £3,000 on the understanding that she would transfer the registration to him, but that is not what happened. That I regard as a rather less substantial matter.
18. For these reasons, it seems to me appropriate to adjourn this matter one more time so that any notes or transcript of District Judge Lancaster's remarks on 17 November can be obtained, and notice can be given to the other side, so that they can attend and explain matters from their point of view.
19. So, although I have warned Mr Aydin that, for the reasons I have tried to explain, the chances of a successful outcome to this appeal are not very great, I regard it as important that this matter be at least investigated at a hearing between the two parties, so that is what I am doing. I will order a transcript of this judgment to be prepared at public expense, and a copy served on both parties. However, I repeat my warning to Mr Aydin: he lives to fight another day, but he has not won and may very well not do so.
ORDER: Application adjourned. Copies of the transcript of this judgment to be served on both parties at public expense. (Order not part of approved transcript)