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 YORK COUNTY COURT
(District Judge Wildsmith)

		Royal Courts of Justice Strand London WC2 Wednesday, 7th November 2001

Wednesday, 7th November 2001

1. LORD JUSTICE WARD: This is a sorry tale of muddle and confusion and it leaves me feeling extremely sorry for the applicant, Dr Lomass. He seeks my permission to appeal against the direction of Deputy Master di Mambro notified to him by a letter of 16th October last year that, because of the effect of section 18(1)(d) of the Supreme Court Act 1981, the applicant had no right of appeal to this court against a decree nisi of divorce which had by then already been made absolute. That is the narrow application before me and, for the moment, I shall deal with it on that very narrow basis.
2. Section 18(1)(d) of the Supreme Court Act provides as follows:

"18.-(1) No appeal shall lie to the Court of Appeal-

...

(d)from a decree absolute of divorce or nullity of marriage, by a party who, having had time and opportunity to appeal from the decree nisi on which that decree was founded, has not appealed from the decree nisi"

3. The chronology, for the short and immediate purpose of this application, is that the decree nisi of divorce was granted in this matter by his Honour Judge Fricker on 24th July 2000. It was made absolute on 20th September 2000. The applicant did not make any application to the Court of Appeal until 29th September 2000.
4. The application to the court was therefore made, and this is common ground, after the decree had been made absolute. The proper procedure for the applicant to have followed was therefore to seek a declaration that he had not had time and opportunity to appeal from the decree nisi and, armed with that declaration, the Court of Appeal would then have the power to consider the matter. That procedure was clarified in the case of Clark v Clark [1996] 1 FCR at page 125. In that decision this court held that the proper court to determine that matter was the court which granted the decree nisi. Hence the proper procedure for Dr Lomass was to go back to the York County Court seeking that declaration. He has not done so. He has not obtained that declaration and there is therefore, as the Court of Appeal held in Clark v Clark, no jurisdiction for this court now to grant him the relief which he seeks, which is to appeal either the decree absolute or, at the moment, the decree nisi.
5. There is nothing I can do. The Deputy Master was correct and his application for permission to appeal has therefore inevitably to be dismissed. But given the muddle and confusion, I will add a bit more to the bare bones.
6. The petition in this case was presented by the wife on the ground that the respondent had behaved in a way that she, the petitioner, should not reasonably be expected to live with the respondent under section 1(2)(b) of the Matrimonial Causes Act 1973. It was hardly the strongest petition that has ever been presented to a divorce court. Both District Judge Wildsmith and His Honour Judge Fricker have commented on that fact. The allegations made against Dr Lomass were thin in the extreme. In essence, she was complaining that he refused, or was unable to accept, her independence, that he asserted that he was always right and that accordingly she found that attitude unbearable and so withdrew from cohabitation.
7. The petition was at one stage going to be defended, but the respondent loved his wife and wished for a reconciliation and he chose not to defend. He hoped that commonsense would prevail. He was infuriated by the way matters had proceeded. He was convinced that his wife had misrepresented a letter he had written to her solicitors and, having shown a capacity to lie to her own solicitors, he would assert, and it is his case, she went on to lie about the allegations presented against him in that petition which were (to her knowledge) exaggerated and false. But he did not wish to engage in that head-on confrontation with her. He hoped that matters would proceed civilly to a reconciliation or, failing that, to a suitable passage of time passing before a divorce could be granted on two years separation with his consent. He wished to do the decent thing at all material times.
8. Having however declined to defend the divorce, steps were inevitably taken to certify the matter fit to go into the Special Procedure List for the pronouncement of the decree. Dr Lomass changed his mind and therefore applied, correctly, to District Judge Wildsmith to set aside the certificate and give him the opportunity then to defend the divorce. The District Judge dismissed that application. Consequently, the respondent's husband appealed to Judge Fricker and he dismissed the appeal on 24th July and pronounced the decree nisi.
9. What should the husband have done then? What he should have done appears from the notes to the decree nisi which read

"if the decree nisi was pronounced by a judge and the respondent wishes to appeal, he or she must serve notice of appeal and set down the appeal at the Court of Appeal within four weeks on the date of the decree nisi."

10. That was telling the respondent to come here to the Court of Appeal in London and appeal the decree nisi. Procedurally he would probably also have been advised - this at least is my preliminary view of the procedure - to have sought permission to appeal Judge Fricker's order refusing to set aside the District Judge's certificate putting the case in the Special Procedure List. Therefore the Court of Appeal ought to have had both those applications before it.
11. Unfortunately, that step was not taken. Instead, and no doubt acting on some information given to him by the York County Court, what Dr Lomass did was apply to Judge Fricker seeking an order in these terms. He intended to appeal to the District Judge

"against the judgment of Judge Fricker at the hearing of 24th July 2000 pronouncing the decree nisi. This is an appeal against the decree nisi".

12. He was going to the wrong place. Judge Fricker indicated as much, I suspect, on 11th August when he heard the matter, and he refused leave to appeal on the ground that the procedure followed by the court was at all times in due form and lawful, there was due process and there is no merit. That appears from the order which is at page 81 in the bundle.
13. Even at that stage if Dr Lomass had come here to this court and this court had been seized with an application for permission to appeal the decree nisi, then the procedures are such that the county court would have been informed, and the county court would have had a stop placed upon the making of the decree absolute while the appeal was pending and the decree would never have been made absolute. Unfortunately that did not happen. When Dr Lomass sought to clarify these matters and sought to deal with a letter from the office of 16th October, repeating the Deputy Master's direction but also enclosing a leaflet "Routes of Appeal" in the hope that that would clarify matters, Dr Lomass subsequently received a letter of 20th October in which the office apologised for the misleading content of that letter of 16th October. I am not at all surprised, therefore, that Dr Lomass was confused.
14. Eventually, on 15th November, he was told again that the Deputy Master confirmed that the court had no jurisdiction. Consequently the court could not assist any further and effectively that was it. Then he was told that he could appeal or seek permission to appeal Deputy Master di Mambro's direction.
15. In December he chose to not to follow that course, though that is the course he has reopened before me, as I shall explain. It seems he then went back to the York County Court and made a further application to District Judge Wildsmith, which was heard on 25th May of this year. The District Judge held that he had no jurisdiction to deal with the matter, but that if he needed leave to appeal he should go to the judge. I am told that was not an application pursuant to section 18 for a declaration that he had not had proper time and opportunity to appeal the decree nisi. I am not quite sure exactly what the application was, but I can well understand why, it being an attempt to reopen the matters dealt with in the previous year, it should be dismissed. His Honour Judge Hunt on 11th September then dismissed an appeal from that order and said there were no grounds for appealing any further. In those circumstances Dr Lomass renews the application before me to look at Deputy Master di Mambro's ruling.
16. What should happen, as I understand it, is that the application for a declaration under section 18, as it was clarified in Clark v Clark, should be made to the County Court. That has not been made. Whether it could be made after this passage of time is a matter upon which I would not wish to express a clear view. It may be that a respondent could seek permission to bring the application so well out of time; but I venture to think that there are formidable difficulties in persuading the court that there was no proper time or opportunity to appeal to the Court of Appeal. Unfortunately the wrong procedures were followed, and so I do not encourage Dr Lomass making that application. If he does then any judge dealing with that will of course ignore these remarks.
17. All I can do is express sympathy to Dr Lomass for the muddle that he has been led into. It is a difficult path to tread through these various regulations, and I did not find it easy myself. I hope a copy of this judgment, which will inevitably go to the York County Court, will help them clarify the procedures so that, if ever they are unfortunate enough to encounter the same difficulty, they will at least know what steps a litigant in person should take in order to protect his position. But, for the reasons I gave at beginning of this judgment, the application that is before me is, I regret to say, one which is hopeless because the court has no jurisdiction to intervene. The application has therefore to be dismissed.
Order: Application dismissed.