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 BRISTOL COUNTY COURT
(His Honour Judge Jack QC)

		Royal Courts of Justice Strand London WC2 Wednesday 6th February, 2002

1. LADY JUSTICE HALE: This is an application for permission to appeal long, long out of time against an order of His Honour Judge Jack QC made in the Bristol County Court on 10th June 1994. He ordered the applicant to transfer all his legal and beneficial interest in 37 Wellington Hill, Horfield, Bristol to T E, subject to the mortgage in favour of the Bristol and West Building Society. On completion of that transfer, T E was to execute a charge in his favour for £10,000, together with one tenth of the remainder of the net proceeds of sale after deduction of £20,000. That charge was not to be exercisable until their child, K, attained the age of 18 or ceased full-time education, whichever was the later. The charge would be transferred to any house that was bought by Miss E instead of 37 Wellington Hill, and there were various other ancillary provisions in the order.
2. The parties' relationship began in 1986. They were never married to one another, but in November 1986 they bought a house together. It was put into their beneficial joint names. The price was £49,950. Miss Evans provided £19,950 from an inheritance. The remaining £30,000 was borrowed on mortgage. That was later increased to just over £40,000 to provide for new windows. The applicant paid the mortgage instalments, but apparently nothing else towards the household expenses, until he left the home.
3. In 1988 Miss E was diagnosed as suffering from multiple sclerosis. In 1991 they had a daughter, K. Relations between them deteriorated soon after that. There were proceedings between them about K and about the occupation of the home which were settled by a consent order in February 1993. The applicant left the home in March of 1993, leaving some possessions behind him in a locked room. He did not pay the mortgage thereafter.
4. In April 1993 Miss E applied for financial provision for K under the Children Act 1989, Schedule 1. The applicant responded with another application for a residence order relating to K. The original intention was to hear both applications together, but the residence hearing which took place before His Honour Judge Batterbury in February 1994 overran. The financial provision hearing was therefore adjourned. It eventually came before His Honour Judge Jack for hearing on 17th and 18th May 1994.
5. The applicant was not at the hearing. It had already been adjourned from April at his request because he wanted to go to a funeral in Birmingham. A later request on his behalf to take it out of the list in May had been refused. His solicitors ceased to act for him very shortly before the hearing. The applicant rang the court on the morning of the hearing to say that he would not be there. His Honour Judge Jack decided to proceed nonetheless.
6. Clearly the applicant knew of the hearing. He said that he was told on Friday the 13th that he would have to attend on Tuesday the 17th. There is, however, evidence from the respondent's solicitors to suggest several communications before then. His Honour Judge Jack took the view that the applicant had not contacted the court the moment that he knew, and that he was not there because he did not wish to be and wanted to put off the determination of the issue. The judge also took into account that if the hearing went ahead, the applicant could apply to have it set aside if he had a good reason for not having been present. Meanwhile, the respondent's condition might be exacerbated by the stress of a further adjournment. He therefore proceeded to determine the case.
7. He did so on the basis that each party had a beneficial half share. They were not just joint tenants in law, they were also joint tenants in equity. In July 1993 the house had been valued at £62,000. The equity was therefore some £21,735. The purpose of the acquisition, which was for the couple to live together, had come to an end. So as the law then stood, unless the Children Act powers were used, there was a real risk that the applicant could obtain an order for sale so that the proceeds could be divided. If so, K would become homeless because her mother would not be able to secure rehousing on her share of the equity. The home had to be preserved for the benefit of K.
8. On the other hand, the applicant had eventually to be entitled to receive his share in it. Hence the £10,000 charge gave him his half of the net equity which was likely to be raised if the house was sold then. The remaining part of the charge was to take account of any growth in the value of the property after the date of the order, but bearing in mind that the respondent would be paying the mortgage instalments thereafter. That is why he arrived at the sum of one tenth of any further equity after the deduction of his £10,000 share and her £10,000 share.
9. Some time after the order had been made it was put into effect. If so this was done by the court in the usual way.
10. The Appellant's Notice was sealed on 27th June 2001; so many years after the events in question. The grounds upon which the applicant wishes to have permission to appeal fall into three categories. First, he says that he was not told about the hearing and it took place in his absence. He did of course know about the hearing - however far in advance he knew about it is not for me to decide - but he did know. In any event, as His Honour Judge Jack pointed out, the correct approach, as stated by this court, where a litigant is dissatisfied with an order that has been made in his absence, is to apply to the lower court to have that order set aside. There are provisions in the rules to enable that to be done. Of course it has to be done promptly, of course there has to be a good reason for not turning up, and of course there has to be good reason to think that if the matter were heard again the outcome might be different. That therefore provides no basis for this court to give permission to appeal so long after the event.
11. The second broad area is that the applicant has been told that there was no power to make the order that the judge did in fact make. This is not correct. There is no power to rearrange the property rights of co-habiting couples, save in accordance with Schedule 1 to the Children Act 1989. This gives a very broad power indeed to order the transfer or settlement of property for the benefit of a child of unmarried parents. There is ample power in the wording of paragraph 1 of the Schedule to entitle the judge to do what he did.
12. It is a general principle that the object of the exercise of those powers is to provide for the child while the child is growing up. We take the view in English law that that is what children are entitled to from their parents and they are not generally entitled to be looked after for life. It is for that reason that those powers are normally exercised in such a way that any rearrangement comes to an end when the child grows up. Of course that is exactly what His Honour Judge Jack did. He made provision for the preservation of the home for the child while she was a minor or still in full-time education, and for the division of the proceeds of sale in accordance with the equities in the property as they were established. So he was indeed entitled to do as he did.
13. The third broad area that the applicant complains about are the circumstances in which the order was made. The main point he makes is that there has been a change in those circumstances; in that the child has had to be looked after by the local authority for some time now because of a deterioration in her mother's health, and possibly for other reasons as well. That being so, the initial object of the order is no longer in place, and he points out that he could benefit from this home much more than the respondent could. He not only has K to think about, there are other children in his immediate family, and furthermore the house is not in the slightest bit suitable for the respondent in her current very sad state of health. He also says that even at the time when the order was made K was being provided with accommodation by the local authority, and that therefore the object was not even present then.
14. A change in the circumstances since an order was made is not in itself a ground of appealing against an order that was correct at the time. The question is whether the Court of Appeal should give permission to appeal so long out of time. When considering that question the court will bear in mind the length of the delay; the reasons for the delay; the merits of the appeal; and any prejudice to other people caused by the delay. In this case there has been an enormous delay for which there is no satisfactory explanation. There will be substantial prejudice to other parties if an appeal goes ahead. In any event, for the reasons I have said, I do not think that an appeal would have a real chance of success. A change in the circumstances is only relevant if the very tight criteria set forth by the House of Lords in Barder v Caluori [1988] AC 20 are met. Those conditions are that the change was not foreseen or reasonably foreseeable at the time when the order was made; that the change happens within a comparatively short time of the order; and that the application is made without delay. None of those criteria are fulfilled in this case, in particular not the second or the third.

So whatever my views about the current use of the property in question, there is no basis for me to give permission to appeal out of time against the order made so long ago, so I have to refuse this application.

15. I will make the usual order which is that there be a transcript of this judgment at public expense, and a copy provided to the applicant.
ORDER: Application for permission to appeal refused; copy of the transcript of the judgment to be provided to the applicant at public expense. (Order not part of approved judgment)