England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(His Honour Judge Meston QC)

		Royal Courts of Justice Strand London WC2 Friday, 27th April 2001

1. LORD JUSTICE THORPE: Mr. Robert Channon applies for permission to appeal an order made by His Honour Judge Lord Meston QC sitting in the Bristol County Court on 16th March 2000. He refused Mr. Channon permission to apply for an order setting aside the previous provisions of the court, embodied in the orders of 10th December 1992 and January 1994. That was the bald order, and behind it lies a tangled history of litigation between Mr. Channon and his former wife, Carol Margaret Channon, as well as between him and his former solicitors.
2. I am not going to recite this litigation history in any detail because this case has been to this court twice before, most recently on 15th December when, in a relatively brief judgment refusing permission to appeal an order made by Her Honour Judge Darwell Smith in the same court, I endeavoured to recite the litigation history. So what I say today is simply in supplement to the judgment of the court given on 15th December 2000. In that summary of the litigation history I did not refer to this small branch of what is a sizeable tree, and the small branch has its beginnings in a letter of 3rd December 1999, which is a privileged letter but which has been included in my bundle, from Mr. Burrows, the solicitor acting for Mr. Channon. The letter is at page 26 of the bundle prepared for today's hearing. I do not read it but only summarize it in this way. Mr. Burrows suggested that at the original hearings of the wife's applications for ancillary relief the court had been deliberately and recklessly misled by Mr. Mark Evans QC, who was then acting in the case. Accordingly, on 22nd December 1999 Mr. Burrows, on Mr. Channon's behalf, issued an application for permission to proceed to set aside. He needed to obtain the court's permission to apply since previous orders made in the Bristol County Court restrained Mr. Channon from issuing any further applications in the litigation without permission.
3. The application for permission of 22nd December sought to proceed with the application to set aside, on grounds that (1) counsel for Mrs Channon (that is Mark Evans QC) misled the court concerning the second pension fund; (2) the wife allowed counsel to mislead the court, at least Judge Batterbury who took the 1994 hearing; (3) the solicitors allowed the court to be misled, and (4) the court made an order knowing it to be wrong. Even by Mr. Burrows' standard that was a bold application. It was heard by Lord Meston and it was trenchantly rejected. He said in the course of his judgment, which has been noted but not transcribed:

"I am of the firm conclusion that the husband should not be allowed to proceed".

4. Later in the same paragraph he explained why. He said:

"There has been no attempt to mislead, no evidence that the court was misled and no evidence of any misunderstanding that had a material consequence on the order that was made."

5. The order reflecting that judgment was drawn on 23rd March and an application for permission to appeal was lodged with this court on 17th April 2000. The application comes into the list over a year after its issue. That may be because of some mistake on the part of the court in failing to list this application at the same time as the application that was listed before the court on 15th December.
6. In disposing of that application on 15th December Simon Brown LJ, who presided, said in his following judgment:

"There must be finality in litigation. It has been altogether too long arriving in this case."

7. With that sentiment I am in complete agreement. On any view this application for permission is both stale and hopeless. But Mr. Channon, who has presented his application this morning with considerable skill, has prepared a skeleton argument and has supplemented that with oral submissions that contend that the view that the judge reached on 16th March was subsequently contradicted by the view that he reached in his judgment of 24th November 2000 in separate proceedings brought by Mr. Channon against his former solicitors. Of course between the two sets of proceedings there is much common ground, for in the second set Mr. Channon alleged that his former solicitors had been negligent in the conduct of the ancillary relief proceedings, and particularly in the conduct of his case before the District Judge in 1992 and the Circuit Judge in 1994.
8. It is important to distinguish the judicial task as it was in March and as it was in November. In March the judge had to decide whether there was any evidential basis to justify a judicial investigation of the four issues raised in the notice of 22nd December 1999. In November the judge's task was to decide whether the solicitors had been negligent in their conduct of the proceedings. It is perfectly open to a judge to arrive at a very firm conclusion that the attack on the competence and the integrity of counsel for the petitioner failed, whilst at the same time the attack upon the competence of solicitors for the respondent succeeded. So I find no contradiction in the conclusions reached by Lord Meston in March and November 2000.
9. There is one matter within the judgment that I would just refer to in conclusion. Lord Meston made a finding that Mr. Channon has been very badly affected by the matrimonial litigation and its outcome. He went on to refer to health and personality problems. He went on to record that the proceedings had dominated Mr. Channon's life for a decade and that Mr. Channon had not been able to move on and rebuild his life as would have been hoped. He concluded:

"He simply has not achieved the finality which is or ought to be the object of matrimonial litigation of this sort."

10. Lord Meston went on to award Mr. Channon the sum of £10,000 in damages for that suffering and that sum, together with a sum of £25,000 for the loss of a chance of a better outcome, together with indemnity orders in respect of costs ordered against Mr. Channon in the past, was the total sum of Mr. Channon's success in the negligence action.
11. When this court gave judgment on 15th December the court expressed the view that the slate between husband and wife should be closed by diverting £35,878.19, the wife's entitlement under the ancillary relief order, from the success in the negligence action, which this court thought was worth just over £50,000, ignoring the indemnity as to costs. Mr. Channon today has said that the wife is actually claiming not £35,000 but some £53,000 because she has added to the capital sum accrued interest. He also says that she is seeking some £40,000 in costs. I have every sympathy for Mr. Channon in his sense of despair. I hope that both the wife and those who advise her will have regard to the reality. The bird in the hand is much more valuable than two in the bush. I would very much hope that those who have a responsibility in relation to the final chapter of this unhappy story will have regard to the observations and findings of Lord Meston in his judgment of November last, and will temper strict rights with good sense and realism. But certainly as a matter of principle, there is no role for the Court of Appeal in this unhappy saga and the application for permission issued on 17th April 2000 must be dismissed.
Order: Application for permission to appeal refused; copy of judgment to be supplied to Mr Channon at public expense.