England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2001] EWCA Civ 848

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		Neutral Citation Number: [2001] EWCA Civ 848
		B1/01/0870/1005

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE SINGER)

Royal Courts of Justice
Strand
London WC2A 2LL
Friday 11 May 2001

B e f o r e :

LORD JUSTICE THORPE
LORD JUSTICE CLARKE
____________________

	IN THE MATTER OF AN APPLICATION
	RE: (R CHILDREN)

____________________

(Computer Aided Transcript of the Palantype Notes of
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 Applicant appeared in person.
The Respondent did not attend and was not represented.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE THORPE: There are two applications brought for permission to appeal in what are undoubtedly complex and fraught proceedings between Mr R and his former wife. The proceedings in relation to ancillary relief have occupied the court over 23 days commencing in April 2000 and running through until February 2001. The judge has not yet given his judgment, so we are in that period of purdah, between the completion of evidence and submissions and the arrival of the reserved written judgment.

On 28 February Mr R issued an application to the judge, who was by then sitting at Leeds, for an order that the maintenance pending suit order that had been made in June 2000 should be reduced. The judge made no order on that, understandably, since he was in the course of considering his greater conclusions.

Mr R then sought an order requiring his former wife to remove a caution. The judge adjourned that for a date to be fixed. Finally, he sought leave to put in additional evidence. Two of his proposals prevailed by agreement. All the rest were refused. That outcome is reflected in the order of 29 March which Mr R today seeks permission to appeal. He runs two points. The first is that this is readily available material highly relevant to the issues that the judge has before him. He says that if it is excluded the risks of an unsatisfactory outcome, and therefore of an appeal, are magnified. His second point is that the application which he sought to bring should have been listed in a court on more or less any date to the judge's convenience to enable him to argue his application face to face.

On 29 March Mr R had the facility of a telephone link up between himself, the judge and Mr Marks for his wife in order to make his application. Usually applications of this sort will be listed in chambers before the judge face to face. But there can be no rule. If the system is to operate successfully it must operate flexibly and in a case in which the judge is out of London, trying a case in the provinces, opportunity has to be taken of modern technology which saves the trouble and expense of the case packing up and moving to the north east. I cannot see any fundamental unfairness in the manner of conduct.

As to the submission that these documents were highly relevant and readily available, that is for the judge to decide. I can hardly think of a greater judicial discretion than that given to a judge who has completed the process of trial and who is in the course of formulating his judgment. It is inconceivable that this court would impose upon the judge an obligation to receive further material which the judge did not himself regard as helpful, unless the circumstances amounted to transparent judicial misconduct. There is no such evidence here. That application fails.

The second application is not quite so extreme. The order that Mr R seeks permission to appeal is at least an order in relation to a trial which has not yet taken place. The same judge conducted a pretrial review on 3 May in Children Act proceedings relating to the two children of the family, proceedings which are fixed for a ten-day hearing commencing on Monday 14 May 2001. On 3 May the judge ordered the husband to file and serve a statement as to the matters that he was going to put to certain witnesses; he gave him leave to file statements from two witnesses; he gave him rather limited leave to file a further statement of his own; he refused him leave to file statements from four other witnesses; he gave leave to the mother to issue a subpoena in respect of one witness; he refused Mr R's application to put in evidence audio and video tapes; he refused his application for an adjournment; and he laid down a detailed provisional timetable for the two weeks of trial. In paragraph 10 of the order the judge built in some flexibility by saying that, at the conclusion of the court welfare officer's evidence, the court would give consideration to whether any other witnesses should be required and the issues upon which their evidence might be received.

Although, perhaps with less force, still the considerations that led to the refusal of the previous application, have to be recognised here. Judges have a particular responsibility nowadays for case management. No longer do judges allow the parties adversarially to take whatever course they please in preparation and at trial. It is the responsibility of the judge to impose firm control on proceedings. In carrying out that task, the judge has to have a very wide discretion. It would be quite unprincipled for this court to call in for review an order such as this, which, on its face, is a perfectly conventional discretionary adjudication to ensure that the 10 days allowed are used as productively and as effectively as possible.

I understand Mr R's sense of dismay, if not despair, at being denied the opportunity to put in audio and video tapes which he sincerely believes will demonstrate a close bond between him and the children, and also demonstrate the wife's mendacity. But the trial judge knows far more about the developing issues and his decision on a point of this sort is one that it is extremely difficult to impugn on an application for permission.

The judge is not absolutely precluded and, no doubt, Mr R will ask him to reconsider his position if the matter is open for reconsideration, which it may well not be since the general flexibility built into paragraph 10 is defined as applying to witnesses rather than evidence.

Although I am very conscious of Mr R's sense of anxiety, his sense that this judge has taken against him, his sense that justice will be denied, it would be quite contrary to principle for me to admit either application to further consideration. Obviously the judge's principal task has not been executed in relation to the big money case. In relation to the Children Act, his task has hardly commenced. Applications for permission are almost invariably, in this field of law, directed to substantive judgments. It is to be noted that there is yet to be delivered a substantive judgment in this case.

For all those reasons these two applications are both dismissed.