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 THE HERTFORD COUNTY COURT
(His Honour Judge Brandt)

		The Royal Courts of Justice Strand London WC2 Monday 22nd July, 2002

1. LORD JUSTICE THORPE: This is Mr Dawkins' application to appeal the order of His Honour Judge Brandt, sitting at the Hertford County Court on 26th October 2001. He had before him the husband's appeal from the order of District Judge Eynon in ancillary relief proceedings. Both parties had been represented before the District Judge, but before the Circuit Judge Mr Dawkins was in person and his wife represented by counsel.
2. Mr Dawkins succeeded before the Circuit Judge to the extent that he reduced the lump sum ordered by District Judge Eynon from £35,000 to £20,000. Mr Dawkins subsequently obtained, by letter written to the judge, a variation of the order extending the date of payment of the lump sum from 1st February 2002 to 1st July 2002. That extension was by order drawn on 7th December.
3. Apparently the solicitors acting for the wife, who were presumably served with that order, failed to communicate it to their client, with the consequence that she became very irate when she did not receive the £20,000 on 1st February 2002. There were then angry exchanges between the parties which, certainly with the advantage of hindsight and certainly from an objective viewpoint, seem very unfortunate and no doubt must have been upsetting for their son.
4. But during the course of their exchanges, Mr Dawkins sought from his wife the assurance that the £20,000 that he was to pay her would be securely set aside for future school fees. Apparently, according to Mr Dawkins, she refused to give him any assurance, either as to how she had managed sums that she had previously received for school fees or as to how she would use the sum to be paid. His anxieties have been further fueled by the recent receipt of a letter from Aldwickbury, saying that the fees for the summer term have not been paid. This summer term is the last term that their son is to spend at that school, since he moves on in September to St Columba's in St Albans. Although a weekly boarder at Aldwickbury, the fees there of £6,000 per annum are even slightly less than the £6,500 that it would cost as a day boy at St Columba's.
5. The anxiety that the wife may be unreliable and even profligate runs through the case in the court of trial, and it is noticeable that Judge Brandt considered this assertion on behalf of Mr Dawkins between pages 28 and 30 of his judgment. He noted that the District Judge had not found the mother guilty of profligacy. In the end the judge says:

"... I am content to adopt the District Judge's view of it, without having heard any evidence, that it went on her income."

6. So the issue has been there throughout. The opportunity for Mr Dawkins to apply, either to the District Judge or to the Circuit Judge, to draw the order in such a way as to ensure that the lump sum could only be spent on school fees was there but was not taken. It seems to me that it would be open to Mr Dawkins even now to apply to the judge for an extension of time for payment, perhaps proposing that he should pay the lump sum by three annual instalments direct to the school or something to that effect. But if I am wrong about that, it is plain from the judgment of Judge Brandt that the clear foundation for his lump sum order was that the payment would relieve Mr Dawkins from further liability for school fees and that the obligation would be on the mother to finance the future private education, if need be dipping into her own resources. He makes that very clear finding at page 33 in the bundle, where he says:

"There is nothing to suggest that the wife should not contribute at least some small part of the capital that has been awarded to her already, or which she has already. Why she should not use some small part of that, if necessary, to top up this boy's education fees."

7. So it would be open to Mr Dawkins to apply to Judge Brandt in the event that the mother attempted to terminate the agreed course of education at St Columba's prematurely, certainly if she so attempted on financial grounds.
8. As I have endeavoured to explain to Mr Dawkins, this application for permission is caught by section 55 of the Access to Justice Act 1999. That prevents this court from granting permission if there has been an appeal in the court of trial, unless the application reveals some important point of law or principle or that there is some other compelling reason for accepting it. That is a very high hurdle, and one that is seldom crossed.
9. Mr Dawkins tells me that he has received some informal legal advice in order to advance this application. In consequence he has sought to suggest that his application may be covered by judgment of the House of Lords in Barder v Caluori [1998] AC 20. But in my opinion this is very far from a Barder v Caluori situation. Lord Brandon in his speech made it very plain that it is only in the most exceptional cases that the court will reinvestigate what were intended to be final orders. That test is certainly not here satisfied.
10. So, for all those reasons, this is an application for permission which must be dismissed. Mr Dawkins has explained his sense of frustration. I understand that, but the function of this court is specifically limited by recent Parliamentary enactment and I must apply the rule. The rule clearly indicates that this application must be dismissed.
11. The associate very helpfully points out that apparently the case was also listed for an extension of time and a stay of execution. Necessarily, those two applications also fall with the first.
ORDER: Applications for permission to appeal, an extension of time and a stay of execution refused. (Order not part of approved judgment)