England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE YORK COUNTY COURT
(His Honour Judge Cliffe)

		Royal Courts of Justice Strand London WC2 Thursday, 25th July 2002

1. LORD JUSTICE WARD: I have listened, not without sympathy, to Dr Lomas in his impassioned plea for permission to appeal an order made by His Honour Judge Cliffe on 11th February 2002, when he dismissed the application being made by Mr Lomas. That was characterised in his discussions with Mr Lomas as an application to set aside the decree absolute and, in effect, to allow the divorce to be granted on other grounds, a characterisation with which Mr Lomas agreed. Judge Cliffe held that he had no jurisdiction to deal with the matter and dismissed it.
2. There is a long history to this unfortunate case, which I need not recite in detail. Dr Lomas is the respondent to divorce proceedings brought by his former wife on the ground that he had behaved in such a way that she could not reasonably be expected to live with him. Although minded at first to defend that petition, the contents of which Dr Lomas has always regarded as being false, he later, for reasons which were understandable at the time, withdrew his opposition, although he noted his protest to the divorce proceedings. What he really hoped for was that the wife would recant and that there would be a reconciliation. But it was not to be. She pressed ahead. She obtained from the district judge a certificate that the matter was fit for the pronouncement of a decree nisi of divorce.
3. That was unacceptable to Dr Lomas. He applied, correctly, to District Judge Wildsmith for orders that the certificate be set aside and that he be given permission to file an answer out of time. That was dismissed by the district judge on 25th May 2000. Dr Lomas appealed to His Honour Judge Fricker QC, who dismissed his appeal on 24th July 2000 and on that day granted a decree nisi of divorce to the petitioner. That decree was made absolute on 20th September 2000.
4. Since then there have been other steps taken by Dr Lomas, the detail of which is not in the papers before me. I know that he applied again to Judge Fricker, who had to dismiss his application. He applied to a district judge and, on appeal, to His Honour Judge Hunt, and they dismissed his applications. He was making those applications because of understandable procedural complications in getting the matter heard by the Court of Appeal. There was a great deal of difficulty put in his way in working through the procedural morass.
5. I dealt with that on 7th November 2001 and dismissed his application to appeal against the decree absolute because, by virtue of section 18(1)(d) of the Supreme Court Act 1981, no appeal lies from a decree absolute of divorce by a party who, having had time and opportunity to appeal from the decree nisi on which that decree was founded, has not appealed from the decree nisi. Dr Lomas had not appealed from the decree nisi. He has not obtained, by way of rehearing, an order that he had no time and opportunity to appeal from that decree nisi. It is now long past the time when any court would ever grant him that relief. It is too late.
6. Dr Lomas comes here by way of seeking permission to appeal from Judge Cliffe's order. Judge Cliffe had no jurisdiction to set aside a decree absolute of divorce. Only this Court has that power and that power is circumscribed, as I explained in my judgment of 7th November 2001. There is now no prospect whatever of this decree absolute being upset. I am afraid that Dr Lomas has to accept the finality of that judgment.
7. I can be sympathetic towards him. I can readily understand his feelings. As he said in the submissions made to me earlier, he feels that his former wife:

"... had no right to blame this breakage, quite falsely, on me, or to lie about my character before the courts to enforce her ends. Thus, there was an offence to my personal honour, which I still feel bound to defend, and to the wider principles of public justice, to which I appeal."

8. I very much regret that he feels that his character has been destroyed by false evidence. I readily understand his wish to defend his honour. But his appeal to the wider principles of public justice is totally off the point. There is no relief that I can grant him. Judge Cliffe was correct to find that he had no jurisdiction. Neither do I.
9. Dr Lomas must now, unhappily, accept the finality of his divorce because I do not see any court anywhere being able to assist him in upsetting the decree nisi nearly two years after it has been made absolute. He has come to the end of the road and his application must be dismissed.
Order: application for permission to appeal dismissed.