England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE HAMILTON)

		Royal Courts of Justice Strand London WC2 Friday, 30th March 2001

Friday, 30th March 2001

1. LORD JUSTICE WARD: Mrs Waite seeks permission to appeal the order made by His Honour Judge Hamilton sitting in the Birmingham County Court on 22nd September 2000 when he ordered, to summarise the order, that the former matrimonial home be sold, that the wife have the conduct of the sale, that he put a time limit upon her putting the property on the market. He ordered out of the net proceeds of sale that there should, firstly, be paid the sum of £25,000 to Mr Waite with the balance to Mrs Waite. He did however give further refinements of the order which I need not particularise, to allow for the possibility that the property may exceed £235,000 when it was sold. He ordered furthermore that the wife was to have £1,000 per annum by way of maintenance pending suit and periodic payments for a year up to 31st July 2001, to have nominal maintenance thereafter for the next year, but the time is not to be extended beyond that. He dismissed their respective claims under the Inheritance (Provision for Family and Dependants) Act allowing only for the maintenance up to 2002, and he held certain monies to be held by solicitors to be paid out in equal shares, and he made no order for costs.
2. To say that Mrs Waite is disgruntled with that order is to underestimate the depth of her feeling that a monstrous injustice has been done to her. She is presenting to the Court a large number of complaints, many in writing which I have had the chance to read and many in the course of her submissions this afternoon. Ordinarily these submissions can be limited to 20 minutes in duration. She had virtually an hour to present her oral argument. I hope she has felt that she has had enough time, though I suspect she will never have enough time to ventilate everything which she finds so distressing.
3. It is important I think that I say again that permission to appeal is granted if there is a real prospect of success. Success on a full appeal would depend upon Mrs Waite showing that the judge either misdirected himself in law or that when it came to the exercise of his discretion (and section 25 of the Matrimonial Causes Act 1973 is essentially a section giving huge discretion to the judge) that the judge was plainly wrong. I should spell out what that means. If it needs to be checked, she should look at the case of G v G [1985] 1 WLR 647. A judge is plainly wrong if he exceeds the generous ambit within which there is reasonable ground for differences of view. Those are the tests that I have to apply. I am not going to take an hour in judgment to summarise each and every argument, written and oral, that has been presented to me. I shall take those that seem to me to best represent the thrust of Mrs Waite's complaint.
4. Firstly, because it comes in order of time she contends that her human rights under article 6 of the European Convention were offended by the judge refusing her adjournment. She sought the adjournment of the hearing because, she complained, that two bundles of documents had been presented to her so late that she was unable fully to take them in. The judge refused to allow her that time. That was an exercise of discretion to which he was plainly entitled to conclude that time enough had been made available, especially in the light of the fact that these ancillary relief proceedings started years ago. There is no possible ground of complaint under that head.
5. The second, and running through the whole of the years of litigation in this matter, relates to her desperate unhappiness about the way in which her husband dealt with the company which they had established, a company called Swaptronics. She was, or eventually became, the holder of 5,000 shares out of the 10,000 that were issued. Her husband had all the remainder bar one which was held by a Mr Bhatti. Because of the difficulties in the marriage, there were endless difficulties relating to Swaptronics: firstly, she was excluded from the company's premises; next she was sacked and took proceedings in the industrial tribunal and lost; and then the really dramatic event when the husband gave notice, hardly a perfect notice of an extraordinary general meeting to be held, and sent it to her former solicitors, not to her. They never received it but it was apparently, according to the husband, given. At the meeting it was resolved to sell that company to a different company called Birchleaf Engineering Limited. The consideration was £10,000. Mrs Waite is convinced, and nothing would ever shake her conviction, that this was a gross undervalue of the assets of a once profitable company. She is suspicious because lo and behold Mr Waite managed soon to be employed by Birchleaf and in time to have a minority interest in that company. I confess that when the Companies Court dismissed her application to consider whether that was improper under section 459 of the Companies Act, there were many features of that transaction which caused me to be suspicious, and I confess that I then held, and I do not mind saying it again, and still hold considerable doubts about the way in which the husband manipulated that situation. I am not alone in that. If one reads the judgment of Robert Walker LJ of 11th November, he echoed some of the feelings of concern, but unhappily they did not allow Mr Waite to overturn the order of the Companies Court because she was in breach of the order.
6. Therefore it is a matter now of sad history that that takeover by Birchleaf Engineering Limited is a matter that Mrs Waite has to live with and there is nothing that this Court can now do, certainly on an application for permission to appeal against the ancillary relief order.
7. Judge Hamilton had to grapple with the problem, and given that he is accused of bias against Mrs Waite, it is pertinent to read from page 4 of his judgment how he did not insist that the legal complexities of estoppel should prevent any reopening of this enquiry. On the contrary, he said, and I quote from his judgment:

"I encouraged her to bring to my attention any clear evidence of wrongdoing by Mr Waite or any evidence that the business was so valuable as she suggested."

8. To suggest that the judge was biased in the light of his extending her that indulgence is fanciful. The result therefore was that Judge Hamilton spent four days listening to this matter. He had six arch lever files containing more than two and a half thousand pages of documents. That the trial should last so long is a testament, I would have thought, (a) to his patience and (b) to Mrs Waite's and Mr Waite's power of endurance, but the judge was in fact quite plain in his findings. They were:

"In the end, Mrs Waite could only repeat in various forms her assertion that in January 1995, the business of Swaptronics Ltd was worth a great deal more than the value put on it in the transaction with Birchleaf Engineering: she could not point to any clear evidence in support of either this asection or her further assertion that, after the conclusion of these ancillary relief proceedings, Mr Waite will receive his reward for the transfer of the business to Birchleaf Engineering."

9. That is a finding of fact against which it is virtually impossible to appeal. There was abundant evidence for the judge to come to the conclusion and the ways in which he gave to restrict evidence which is a matter for him. Still nothing has been presented to me which would allow me, suspicious as I am of that transaction, to go behind the judge's findings. Findings of fact are for the trial judge. He heard the evidence and this Court does not interfere unless it is plainly wrong, and I cannot be given any scintilla of evidence to convince me, as I might like to be convinced, that it was plainly wrong.
10. The company has now ceased to operate. There is a small amount of £10,000 in a solicitor's account and that, said the judge, is what it is currently worth. The case that Mr Waite will get his pay day was emphatically rejected.
11. To move to another point dealing with bias, Mrs Waite is offended by the judge suggesting that she was a strong lady who had an ability to build her life. I think the passage in the judgment which excites her criticism is his finding when dealing with her earning capacity:

"... she has linguistic skills and she is a resourceful woman of industry and energy. I am satisfied that with these qualities she has an earning capacity sufficient to keep her in an adequately comfortable standard of living which would be appropriate for her needs."

12. Mrs Waite chooses to read that as an example of his bias. On the contrary, it is a testament of the praise the judge is giving to Mrs Waite and to her obvious talents that are there still to be deployed, notwithstanding the difficulty that she is at an age where it would be that much harder for her to take up employment.
13. Mrs Waite suggests that because the judge made adverse findings against her, it should have been a trial by jury, but frankly that is nonsense. The procedures in the Family Division were properly followed by the judge and there can be no complaint whatever of that. Jury trials are not held in ancillary relief proceedings. Whether or not they are held in California, is neither here nor there.
14. She complains that the judge was biased, for example because he took no account of the husband's violent behavior during the breakdown of the marriage. It is not a matter that was relevant to this proceeding. He was not concerned with it and would have been criticised by the Court of Appeal if he had turned the ancillary relief into a defended divorce.
15. She complains that the judge was wrong in allowing the husband to put forward evidence of the price of suitable alternative property for Mrs Waite to live. What the judge accepted was that he was satisfied on the evidence put in by the husband that she could re-house herself for less than £100,000. In light of the fact that she had given no thought to the cost of suitable alternative accommodation, that was a finding he was entitled on the evidence before him to make.
16. She complains that the judge was wrong to find that she had not lived in penury but again her difficulty is that the judge gave a reasoned account to explain why he came to that conclusion, having analysed the money that she had available over the years. It was an assessment and a judgment that he was entitled to reach on that evidence and she cannot complain about it.
17. She complains that the judge failed to have regard properly to Mrs Brown's position, she being the lady with whom the husband has established a relationship and with whom he has an interest in the home they occupy. The difficulty there is that of course it is Mr Waite's needs or rather financial resources or assets and income which are material, and it is not the law of this country if you aggregrate the assets and income of the man and his cohabitee and give the wife a share of that combined pot. That is not the law of the land. The law of the land allows under section 25 an assessment of the husband's position. Even if he were wrong in finding that he really only had a six percent interest in the joint home that they had, and allowing him a 50 percent interest in that property, it did not so enhance his available resources as to make the ultimate order in any sense unfair. Mrs Waite would contend, like Mrs White, that 50/50 should be the prevailing order. If it were, then on the assets found to be available for distribution in this case she would have received significantly less than the judge had ordered, and if we bring into the pot a half share in the home he shares with Mrs Brown, then there is not a great deal of inequalty in the eventual result.
18. Mrs Waite complains that her contribution has been neglected. It hasn't. The judge made his finding on page 24:

"As Mr Waite agrees, Mrs Waite made her own substantial contribution to the welfare of the family not only as a wife and mother but also by supporting him in his business endeavours."

19. That is a satisfactory and proper application of subsection (f) of section 25(1) of the Act. He did weigh her contribution and found it was a significant and substantial one.
20. Mrs Waite makes an impassioned plea on behalf of her children for what she calls their patrimony. I think she recognises that that is not the law of England though it may be a future continental system. She is determined to change the law but unfortunately, as she well knows, judges do not make the law, Parliament makes the law, and it is for her to effect a change in the Inheritance (Provision for Family Dependants) Act 1975. That is the vehicle by which children obtain whatever relief the law thinks they could gain on the death of a parent.
21. I end as I began. I think this lady's life has suffered a turn of misfortune and she may have had in the past cause for some complaint, but her complaints are not fairly levelled at Judge Hamilton. I have looked very carefully at the material before him and the judgment as a whole, and I am totally satisfied that he applied the law correctly, was justified in the findings of fact which he made, and it is impossible to upset on appeal. So I am left with the unhappy task of dismissing this application for permission.
(Application for permission dismissed)