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 BLACKBURN COUNTY COURT
(HIS HONOUR JUDGE SMITH)

		Royal Courts of Justice Strand London, WC2 Monday, 14th October 2002

Monday, 14th October 2002

1. LORD JUSTICE MANCE: This is an application issued on 28th June 2002 for an extension of time and for permission to appeal from the order of His Honour Judge Smith, sitting in the Blackburn County Court on 5th September 2001, whereby he dismissed the applicant's application for permission to appeal again out of time against an order of District Judge Law made on 19th July 2000.
2. Mr Legg, who is the applicant, married his ex-wife, Audrey Legg, on 31st March 1976. Mrs Legg left the matrimonial home on 13th December 1988 and petitioned for divorce, based on alleged unreasonable behaviour by Mr Legg. At a hearing on 19th July 2000 District Judge Law, sitting in the Chorley County Court, ordered Mr Legg to transfer all his estate and interest in two properties, 1 Laurel Avenue, Euston and 64 Victoria Park Avenue, Leyland, including any interest held by him as a partner with Mrs Legg in the firm Chorley Motorist Centre, on or before 16th August 2000 or upon decree absolute, if later, and subject to any existing mortgage in respect of those properties. He also ordered that on or before the same date Mr Legg pay the sum of £98,000 to Mrs Legg.
3. The bundle of documents which Mr Legg has put before me includes a court attendance file note dated 19th July 2000, made, as I understand it, by the solicitors for Mrs Legg, on which someone (presumably Mr Legg) has written, "Was this off the tape or notes?" It seems to me that it must really have been off notes made at the time, but, however that may be, it seems a fairly exhaustive summary of what occurred and what was said during the course of the relevant morning and to show a full consideration of a number of issues which arose in the course of oral evidence given by Mr and Mrs Legg and of documents which were available and produced on either side. The hearing apparently ended with, amongst other things, an indication, as Mr Legg accepted before His Honour Judge Smith, by the District Judge to Mr Legg that he had 14 days to seek to lodge an appeal, permission for which was refused by the District Judge.
4. Mr Legg tells me, and I fully accept, that the order was not received as drawn up for some period -- I think he said seven days -- and that he could not deal with any appeal in time. But that does not explain why it was that it was not until over a year later that he in fact sought to appeal.
5. In the meanwhile, Mr Legg appears not to have complied with the terms of the order, at least in so far as any transfer of land was concerned, and such a transfer was executed on his behalf by District Judge Chorley on 20th December 2000.
6. As regards 1 Laurel Avenue -- see the bundle before me at pages 44 and 45 -- although Mr Legg tells me that Chorley Motorist Centre has entered a caveat (a caution) on the register on the basis that it was the owner, in fact one notes that the District Judge dealt with that issue and expressly embraced in his order any interest held by Mr Legg as partner in the firm of Chorley Motorist Centre.
7. Mr Legg's appeal (although the notice of appeal is not in front of me) was not issued for, it appears, over a year. That appears from the transcript of the hearing in front of His Honour Judge Smith. His Honour Judge Smith listened to submissions by counsel for Mrs Legg and from Mr Legg in person and pointed out the difficulties which arose from the lapse of time and the difficulties which Mr Legg faced in seeking to challenge the District Judge's decision on the merits, bearing in mind that his challenge was basically to the truthfulness of his ex-wife on issues on which the District Judge had heard evidence and reached a decision.
8. In the end His Honour Judge Smith -- and I have a transcript here of the whole argument and of the judgment -- said this:

"The respondent husband seeks leave to appeal, out of time, the order of District Judge Law made on 19th July, 2000, that is over 12 months after the making of the order.

The order was made after a contested hearing at which the wife and the husband both gave evidence and at which various affidavits were put before the District Judge which he read and considered. At the conclusion of that hearing, the District Judge told the respondent husband that if he wanted to appeal he had 14 days in which to do so.

The reason for the delay in seeking an appeal of the District Judge's order has been ventilated in my court this morning. I have asked the respondent, in person, directly, why it is that over a year later he seeks to appeal an order when he was told in terms that he had 14 days in which to present an appeal. His explanation is wholly unconvincing. There is, in short, no explanation at all as to why it is that all this time has elapsed before he seeks an order from a higher court altering the terms of the order of the District Judge.

In deciding whether to grant leave to appeal out of time, of course, I have got to have one eye on the potential merit of any such appeal, I have read the District Judge's judgment and he quite clearly took a very poor view of the respondent. He did not believe his evidence and he did not accept that what he said in his affidavits or statements was accurate.

If leave were to be granted for an appeal, the Circuit Judge would have to respect the District's Judge's findings as to the respondent's credibility and, indeed, his findings generally as to the facts put before him. I say that because the respondent, when asked whether or not he had any new material to demonstrate that his wife had committed perjury at the time of the hearing in July, 2000, did not (radio interference) and did not refer me to any such evidence. The respondent in his application merely repeats that his wife did not tell the District Judge the truth.

He complains about the effect of the order upon him. He complains about the quality of the evidence before the District Judge, namely that the District Judge was acting on accounts which related to 1997, but insofar as he might have a complaint there -- and I am not sure whether he has at all -- the District Judge, of course, was doing the best that he could in the circumstances and it was open to the respondent, indeed, to provide the Court in July, 2000, with more up to date accounts. That is something which he neglected to do so he can hardly complain that the Judge was acting on the most recent evidence that he had as to the prosperity or otherwise of the" [that may be "company" or "partnership", I suppose] "he was considering." [It may possibly be a reference to Mr Legg.]

His Honour Judge Smith went on:

"There is no proper reason at all here why the Court should grant leave to appeal out of time against the terms of the order made by the District Judge. Accordingly, the application is dismissed with costs."

9. Subsequent events include -- and I have seen the letter -- the withdrawal of public funding from Mrs Legg on 31st May 2002 following representations made by Mr Legg, but I have no material as to precisely why or on what grounds it was that that withdrawal took place. I have not been given copies of the representations. Mr Legg has told me that all he supplied was the truth and the Legal Services Commission looked into the matter. So I do not have any direct evidence as to what matters motivated them or the grounds on which they acted.
10. I also have information that Mr Legg on 28th May 2002 wrote to the Lancashire Constabulary again alleging perjury against Mrs Legg in this case. The file indicates that on 26th June 2002 the Constabulary informed Mr Legg that following their investigations these allegations were not being pursued, at least for the moment. They were, if anything, matters for the Civil Courts and not police matters at this stage. They then referred to his forthcoming appeal and looked forward to hearing from him in due course.
11. Following that, on 28th June Mr Legg issued an Appellant's Notice seeking permission to appeal out of time to this court. He was asked by me, first, to comment on the period of a year's delay before any attempt to appeal to the Circuit Judge. He said that for six or eight months he was still involved in court cases because of his ex-wife's and her partner's lies. He said that it had taken eight months get fresh evidence, and he reiterated that affidavits sworn before the District Judge were perjured.
12. In relation to the second period he said that he was only advised in April or May 2002 by the police and a solicitor to bring these matters to the Appeal Court. Advice had not been given to him about that possibility by the Circuit Judge, and the court staff had simply said they could not comment on a judicial decision. Asked why he did not go to solicitors, he said that they cost money. He added that he had never found the Citizens' Advice Bureau very useful.
13. It seems to me that the position still remains, on the face of it, that there is no satisfactory explanation for the period of one year's delay before any attempt to appeal to the Circuit Judge, and that is now compounded by the absence of any satisfactory explanation for the period of some nine months before any attempt to appeal the Circuit Judge's decision to this court. I cannot accept that Mr Legg would not have been aware that there might be some possibility of a further appeal if permission was obtained, and indeed, by inference, he seems to have approached court staff in that sense.
14. Like the Circuit Judge, however, it is appropriate to look a little at the merits, especially as Mr Legg has referred in the context of the first period of a year to obtaining fresh evidence after eight months. When I asked him about this he referred to his wife's affidavits -- they are at pages 5 to 12 and 13 to 16 -- and said again that these were lies, in particular because she had lived with her boss at work, a man called Colin Bowes, whereas in the affidavits she swore that she had not. He referred me to page 24 in the bundle, showing that a document was served on the address where she and Colin Bowes lived and was received by Colin Bowes on 7th July 2002. But that is entirely consistent with the wife's affidavits, because they were dealing with the position much earlier. In her first on 13th May 1999 she said:

"I do not have a partner or any intentions to re-marry or cohabit."

In her second, on 4th October 1999, she said:

"I commenced another relationship a month after I left the Respondent and it is untrue to say I had been having an affair with my boss at work since December 1997. I live alone and have no intentions of co-habiting."

So what took place in July 2002 is not evidence that the affidavits were wrong.

15. Mr Legg also referred me to page 23 in the bundle. That is a police witness statement made by Colin Bowes on 14th January 1999 which related to alleged actions of Mr Legg and conversations by Mr Legg with Mr Bowes, about which Mr Bowes was complaining. Again that does not seem to me to show any relationship between Mr Bowes and the ex-wife, Mrs Legg, at that time. At most, what it shows is that Mr Legg thought that Mr Bowes was associating with Mrs Legg.
16. However, all this seems by the by, bearing in mind what the District Judge said in his judgment. As the notes at page 21 show, he said this:

"The question I must determine is one of the Petitioners conduct. Respondent contends adultery to the extent that he has suffered. I am not satisfied in law even if adultery were to have taken place that this would be sufficient to defeat Petitioners claims. There is no evidence of adultery - no witness although a witness summons could have been issued. I am required to consider all matters contained in Sections 23 to 25 of the Matrimonial Causes Act 1973. I do consider those matters and wife's requirements for a property free of mortgage if achieved and of husband's rehousing needs."

He then went on, in the light of his findings as to the respective positions and assets of the parties, to make the orders relating to property transfers. I should add in this connection that the witness statement from Colin Bowes, even if it had evidential value (which in my judgment it does not have) on the issue of cohabitation, was not actually permitted to be put in front of the District Judge, no doubt because Colin Bowes was not called and nor was the policeman who took the statement. Mr Legg said he could not set about getting anyone to come because he was on baiul at the time. So the District Judge was on any view right to say he had no evidence of adultery, but he also indicated that it would not have made any difference if there had been evidence and if he had found that there was adultery.

17. The other aspect relating to the merits to which Mr Legg referred was this. He contended that pages 19-20 in the bundle, which are accounts of Chorley Motorist Centre and a statement of some auditors, both dated November 1999 (the accounts being only in draft), show that Chorley Motorist Centre had an interest as to 50% in the case of Victoria Park Avenue and by virtue of repayment of a mortgage debt in the case of Laurel Avenue. Again, looking at the notes of the District Judge's hearing, these matters were gone into in great detail in front of the District Judge. He formed clear views on them in the light of his views as to the parties' credibility having heard their oral evidence. I can see no prospect of that being carried further; certainly not sufficient prospect to justify the extraordinary step of granting permission to appeal after all this time.
18. I have looked at the matter as if the test were one of real prospects, but I think strictly it is a second appeal or an attempt to bring a second appeal, and the test is a higher one, namely that there should be an important point of principle or practice or some compelling reason for an appeal. But quite apart from that, I am wholly satisfied that there can be no prospect in this court, and there is no basis, for the requisite extensions of time either to this court for an application for permission to appeal or, if permission to appeal were given, to the court below overruling the Circuit Judge in that regard.
19. Mr Legg has made it quite clear in front of me that he regards this matter as a matter of principle and he has got up very early in the morning to come all the way to this court to make the points of principle. He feels very strongly about it, he tells me, and his essential case is that the judicial system has been misled by Mrs Legg. But having said that, I regret that he has not assisted himself in the way he has gone about this and he has not produced anything which materially alters the look of it from the way it was in the court below or indeed on the merits from the way it was before the District Judge.
20. In all those circumstances, I refuse the application for an extension of time to apply to this court and for permission to appeal.
Order: Application refused.