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 LEICESTER COUNTY COURT
(His Honour Judge Hall)

		Royal Courts of Justice Strand London WC2 Friday 15th June, 2001

1. LADY JUSTICE HALE: This is an application for permission to make a second appeal in an ancillary relief case. The applicant (whom I will call "the husband" because that was the reason for these proceedings) has a very high mountain to climb to achieve such permission. The test for second appeals is set out in section 55(1) of the Access to Justice Act 1999. This says that no appeal may be made to the Court of Appeal unless the Court of Appeal considers that:

"(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

2. That means that where, as in this case, the Court of Appeal would be the third court to look at the matter, it should not do so if the case is one which is the application of established legal principles to the particular facts of the case. That is particularly so in ancillary relief cases following divorce. We have been told, in the Court of Appeal, by the highest court in the country, the House of Lords, in the case of Piglowska v Piglowski [1999] 1 WLR 1360 that we must be very cautious in interfering with the decisions of the courts that have first tried the case. Lord Hoffmann said in that case that:

"... to allow successive appeals in the hope of producing an answer that accords with perfect justice is to kill the parties with kindness."

3. I explain all that at the outset so that Mr Tait realises how difficult it is in this case for me to help him, however much, in the circumstances which I shall explain, I might want to do so.
4. The parties met in 1987. They lived together from the summer of that year and married on 23rd December. Their only child, Emily, was born on 3rd August 1988. They separated in December 1992. The wife left the former matrimonial home with her daughter, and in fact went to live for a while at the home of her first husband. There has been a prolonged contact dispute between the parties. Contact was established for a while, but there has been no contact since July 1997. There was then an order prohibiting the husband from making further applications for two years. That has now expired and he is hoping to bring a further application with a view to re-establishing contact with his daughter.
5. The wife applied for ancillary relief in 1993. But in 1995 that was adjourned generally with liberty to restore it at a later date. The only asset in dispute substantially was the former matrimonial home at 249 Hospital Bridge Road, Twickenham. This was bought by the husband in 1986, before he even met the wife. The price was around £80,000 and it was raised by £42,000 of the husband's own money and a £38,000 mortgage. The property was later transferred into joint names. The mortgage liability was, in the course of the marriage, increased very substantially to finance an extension and meet other liabilities. At one time it was as high as £92,000, the house was in negative equity and there were arrears on the mortgage. By the time of the hearing before the Circuit Judge, against which the husband wishes to appeal, it was around £71,000.
6. It seems clear from the information before me that when the proceedings were adjourned in 1995 the wife's main objective was to be relieved of her liability for the mortgage and for two other debts, with HFC and TSB. It was proposed that if she could be relieved of those liabilities she would agree to transfer the house into the husband's sole name and for there to be a clean break. But that did not happen at that stage, perhaps because of the negative equity or perhaps the creditors would not agree.
7. Of course things have changed since 1995. The husband tells me that he could have given the house up at that stage, but he did not do so. He kept it going, he says, because he wants to maintain the place where his daughter was born and spent the first four years of her life as a place which she can continue to visit. He hopes in due course that contact will be re-established so that she can.
8. The property market has improved since 1995 and so the proceedings were restored. They came before District Judge Reeson in the Chesterfield County Court on 1st September 1999. There was a valuation by a Mr Hayles, obtained by the husband, of some £130,000. The husband said that this was far too high, but the District Judge accepted it. He took the view that legally the wife had a half-share. The transfer outright to the husband would mean that she got nothing. He later assessed her share on a redistribution under the Matrimonial Causes Act at thirty per cent of the equity. He observed that ideally the husband should remain in the house and raise the money from another source. It is clear that he meant by this, raise the money to pay the wife off from another source. But he acknowledged that that was impracticable and therefore he ordered a sale of the property. The net equity was to be calculated after the costs of sale, the mortgage liability of some £72,000, and the TSB and HFC debts of over £13,000. He did not provide for another debt to be paid off out of the proceeds of sale because he did not regard that as joint. The net proceeds were to be divided seventy per cent to the husband and thirty per cent to the wife. He also made the usual orders associated with a clean break.
9. The husband's appeal against that order came before His Honour Judge Hall in the Leicester County Court on 15th January 2001. The husband was contending for the solution proposed back in 1995: that the wife should be released from the debts and the property transferred to him. He contested the valuation and the judge allowed evidence to be called from Mr Hayles who had given the original valuation. Mr Hayles put the value at £135,000. The judge referred to some other evidence of a higher possible value, but also evidence that the house would need money spent on it. So he took the figure of £130,000 which had been accepted by the District Judge. Again, the joint debts were around £85,000, the costs of sale would be about £5,000 and so the equity was around £40,000.
10. The husband's case then, as now, is that he had bought the house before he met the wife. He had contributed a significant sum of money to buy it. The mortgage was a comparatively low one. He has paid the mortgage since the separation. It was a comparatively short marriage and it was during the marriage that the debts accumulated so heavily. The wife has income from her occupation as a funeral director and she has housing to go with it. In his view the wife is seeking a sale of this property to put a further obstacle between him and restoring contact with his daughter. If the house was sold he would not be able to afford to rehouse himself and that would have a variety of serious consequences for him: he would be homeless and if he was homeless he would be unable to keep his employment.
11. The judge dealt with those arguments in relation to the property by reminding himself of Emily:

"Emily is now 12 and essentially, from the age of 4 years, Mrs Tait has been the parent responsible for bringing her up. The contribution that she makes both in terms of child-bearing and child-rearing is no less significant a contribution to this marriage as the financial contribution made by Mr Tait. To bear and bring another human being into the world and then have the sole responsibility for looking after and bringing up that human being from the age of 4 to the age of 16 is an extremely significant contribution. And although Mrs Tait put no money into the house, her contribution to the marriage was no less significant than that of Mr Tait."

12. His conclusion therefore was that the wife's argument for a share higher than thirty per cent was very strong. However, he accepted that the District Judge had awarded her thirty per cent of the equity, and he assumed that that was based upon the fact that the husband was taking on debts which were otherwise a joint liability and that justified the reduction. He took the view that he could not say that the learned District Judge's approach was in any way flawed, and even if he had been applying his own discretion completely afresh he would have come to the same conclusion.
13. The one thing that he did do was to give the husband an opportunity to avoid having to sell the property by giving him three months in which to raise the £12,000, which would be thirty per cent of the £40,000 equity which he assumed there would be in the house. If of course the house had to be sold the thirty per cent would be whatever the thirty per cent was. But that in a sense was a concession to the husband which the judge was prepared to make. Perhaps one of the reasons that he was prepared to make that concession was that the husband's proposals for discharging the debts did involve him seeking the assistance of his mother. Perhaps the judge had in mind that if the husband could do that, he might be able to do it to a rather greater extent, although of course he had no evidence about that.
14. I am told by the husband today that, the three months now having gone by, the wife has applied for and obtained an order that the property be put on the market within five days of yesterday. This was in the knowledge that this application was before the court today. The husband also tells me that he stopped paying the mortgage three or four months ago and that the building society is now seeking to repossess the house. But of course that does not affect the basic situation in this application.
15. The points which the husband has raised both before His Honour Judge Hall and before me are, of course, relevant points for the exercise of the judge's discretion under the Matrimonial Causes Act, but the matter has now been argued before two different judges who have had the benefit, particularly in the case of the District Judge but also to a limited extent in the case of the Circuit Judge, of hearing evidence. The matter is one of discretion and the Court of Appeal very rarely interferes with the exercise of discretion by a trial judge, particularly in a case such as this. I have tried to explain how difficult it is to put in train an appeal in these cases, and I cannot find anything in this case which fits within the criteria for a second appeal under section 55 of the Access to Justice Act.
16. I cannot grant this application, although I do express some considerable sympathy for the situation in which the husband finds himself. But that will be of little comfort to him.
ORDER: Applications for permission to appeal, a stay of execution and to rely on further evidence refused; applicant to be provided with a copy of this judgment at public expense. (Order not part of approved judgment)