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 LUTON COUNTY COURT
(HIS HONOUR JUDGE FARNWORTH)

		Royal Courts of Justice Strand London, WC2 Wednesday, 27th November 2002

1. MR JUSTICE MUNBY: This is application by Mrs Wall, who was the respondent in this suit, for permission to appeal against the decision of His Honour Judge Farnworth in the Luton County Court on 18th October 2002. The circuit judge was on that occasion exercising the matrimonial and ancillary relief jurisdiction hearing an appeal from an early decision by District Judge Taylor on 11th July 2002.
2. It is apparent from his judgment that the circuit judge, correctly in the circumstances, approached the hearing of the appeal before him applying the principles in Cordell v Cordell. He set out in his judgment that the respondent's appeal raised, as indeed her application before me today raises, many particular issues but observed that the overriding basis of her appeal to him was that she felt the district judge's order did not achieve a fair outcome as between herself and her former husband.
3. The circuit judge pointed out that the main issue between the parties at the hearing had revolved around the matrimonial home. The petitioner's case had been that it should be sold, the petitioner receiving 40% and the respondent 60%, whereas her proposal, certainly in front of the circuit judge, was that the split, rather than being 60:40 in her favour, should be more of the order of 70:30 or 80:20 in her favour.
4. As the circuit judge pointed out, the respondent, in her submissions to him, strongly objected to the district judge's decision on that particular matter, arguing that it had not achieved any sense of parity or fairness for her, the district judge having, in her view, concentrated too much on achieving parity for her former husband. That proposition was one she repeated in front of me this afternoon.
5. The circuit judge carefully analysed the way in which the district judge had approached the matter before arriving at his conclusion that the decision of the district judge displayed no error of principle of law and could not on any basis be said to be plainly wrong. Accordingly he dismissed the appeal.
6. In the course of the hearing before the circuit judge, as again before me this afternoon, the respondent raised a point involving, as she would see it, procedural impropriety, unfairness and indeed misrepresentation, that is to say procedural propriety, impropriety, unfairness and misrepresentation in the context of the hearing before the district judge. The point arises in this way. The respondent's statement of issues, dated 26th March 2002, had clearly staked out a claim by the respondent based upon taking into account the value of her former husband's interest in the farming business. However, when the matter came to be argued in front of the district judge on 11th July 2002, counsel then appearing for the respondent, expressly agreed that the former husband's interest in the farm business should be left out of account for the purposes of capital provision.
7. The respondent accepts before me today that that is indeed what her counsel did but tells me that she did not appreciate at the time the significance of what was happening. That was a matter which she raised by way of complaint in front of the circuit judge. On page 13 of his judgment, he said this:

"She also complained the district judge had not taken into account [the applicant's] capital account in the farming business. She agreed that her husband should not be required to sell farming assets but that it should be taken into account in the balancing exercise. I have to reject that proposition. The district judge was expressly asked to leave out the farming business except in the sense it provided the income support Mr W now and in the future, and also, of course, the money for the children. The partnership does not own land or buildings. It was not a realisable asset since if Mr W sold up he would be without income. It was not included in the schedule of assets and I do not see any case for including it now."

The circuit judge, as I have said, dismissed the appeal, saying this, at page 14 of his judgment:

"In truth the district judge was require to carry out a careful balancing act and did so, having regard to the requirements of the statute and reflecting upon the views of the House of Lords in White v White. It is a difficult discretion to exercise and I recognise that arguments can and do arise in these cases on the result of that exercise, but I am bound to say that nothing said by Mrs W in her lengthy submissions to me or in her written arguments demonstrates that the district judge's decision produced such an unbalanced outcome that it can be categorised as wrong and requiring a different decision from myself. I am satisfied the district judge took into account all those matters he was required to do and concluded in a careful judgment that the order should be made in the terms I have recorded. I see no reason to interfere with that order in any way."

8. The respondent has appeared before me today in person. She has prepared as a litigant in person, detailed grounds of appeal set out in her appellant's notice and also a lengthy, detailed and very helpful skeleton argument identifying each of the matters of which she seeks to make complaint. She has also addressed me orally, in a measured and helpful manner.
9. I have read and taken into account everything said by her in her grounds for appeal and in her skeleton argument as well, of course, her oral submissions. I need not go through her complaints in detail. They are that, for the reason I have already mentioned, she did not obtain a fair trial in front of the district judge and that the circuit judge fell into error in not recognising and remedying that state of affairs.
10. She complains that the eventual outcome was unfair and indeed discriminatory, her arguments in that respect before me today being very similar in their nature to the arguments considered and rejected by the circuit judge.
11. In supplemental amended grounds of appeal, she asserts that in the balancing act the district judge plainly got it wrong. She also complains of non disclosure by her former husband in the courts below and finally seeks to draw comfort from the very recent decision of this Court in Lambert v Lambert.
12. She complains, further, in relation to the hearing before the circuit judge that the circuit judge, as she would have it, misunderstood and mixed up some of the resources, when he came to analyse the parties' assets and resources. Finally, she complains about the refusal of the circuit judge to allow her an adjournment for the purpose of obtaining legal assistance and representation for the purposes of pursuing her appeal in that court.
13. Those are by no means all but they are, it seems to me, the most significant of her various grounds of appeal.
14. This Court cannot give permission to appeal in any case unless it considers that an appeal would have a real prospect of success or unless there is some other compelling reason why an appeal should be heard. Despite everything that the respondent has said to me, I am wholly unpersuaded that her appeal would have any prospect of success at all, let alone a real prospect of success.
15. The fact is that this Court, like the Court below, can interfere only if the court below has erred in law, adopted an approach which is wrong in principle, been guilty of some procedural irregularity or unfairness, or has come to a decision which is plainly wrong. In my judgment, the circuit judge, far from being plainly wrong, was fully justified in coming to the decision he did in dismissing the appeal from the district judge. Whether I, myself, would have made the same order as the circuit judge is quite beside the point, in just the same way as in front of the circuit judge it was entirely beside the point whether the circuit judge would have come to the same decision as the district judge.
16. The question for the circuit judge was: had the district judge got it plainly wrong. In my judgment, the circuit judge was fully entitled to come to the view that the district judge had not got it plainly wrong. The question for me is whether, at this stage, it is arguable that the circuit judge got it plainly wrong. Notwithstanding everything that the respondent has said, I am entirely satisfied there is no basis for that complaint.
17. Nor, in my judgment, is there any basis for the respondent's complaint of procedural irregularity, misrepresentation or unfairness either in relation to the proceedings before the district judge or in relation to the proceedings before the circuit judge. I have already set out from his judgment the manner in which the circuit judge dealt with the matter of alleged procedural irregularity before the district judge. In my judgment, the circuit judge was fully entitled to deal with that matter in the way in which he did.
18. So far as concerns complaints of procedural irregularity or unfairness, in the context of the hearing before the circuit judge, there is no properly arguable basis for any such complaint. In particular, the circuit judge was fully entitled to take the view that it would be inappropriate, in all the circumstances, for there to be an adjournment, even when that adjournment was sought by the respondent for the purposes of obtaining legal representation.
19. There is, I am satisfied, no even arguable basis for any complaint directed or sought to be directed by the respondent against the decision of the circuit judge.
20. Accordingly whilst recognising, as I do, how upsetting and indeed distressing my decision must be for her, I would in any event without hesitation dismiss the respondent's application for permission to appeal.
21. The matter does not in fact end there, because this is a case of a proposed second appeal, that is to say, a proposed appeal to this Court from a decision of the circuit judge, which was itself a decision on an appeal from the district judge. Such appeals are regulated by CPR Part 52.13, which in material part provides that this Court will not give permission in such a case unless it considers (A) that the appeal would raise an important point of principle or practice or (B) that there is some other compelling reason for this Court to hear it. That, as will be appreciated, is an even more stringent test than the test, on the basis of which I have already decided that permission should not be given for this appeal to proceed.
22. The plain fact, I am afraid, is that despite everything said by the respondent, and even if it be the case, which I do not in fact accept, that the decision against which she seeks to appeal was, as she would have it, unfair, this appeal does not raise any point of principle or practice, let alone an important point of principle or practice. Nor, despite everything she has put before me today, am I able to discern any compelling reason why this Court should hear this appeal.
23. Accordingly, for those reasons the respondent's application for permission to appeal must be dismissed.
24. I refer to two other matters. The first is this. The respondent sought, by application notice dated today and handed up to me at the beginning of the hearing to apply for an order for discovery. I make no complaint at all about the fact that that application is made very late in the day. But there can of course be no conceivable purpose in ordering discovery, save in the context of pending proceedings. Having dismissed her application for permission to appeal, it necessarily follows that her application for discovery must be dismissed.
25. The other matter is this. One of the matters of complaint raised by the respondent, in her written materials although not one on which she addressed me orally, is her complaint that the circuit judge, at the conclusion of the appeal, made an order varying the order which had been made by the district judge and giving conduct of the sale of the property to her former husband's solicitors and agents appointed by them. The reasons why the circuit judge took that step appear adequately from the transcript of the colloquy with counsel, following the giving of his judgment, and from the observations of the circuit judge, which appear on pages 16 and 17 of the transcript. It seems to me that, in the circumstances which there appear, the circuit judge was entitled, in the exercise of his discretion, to make that order. It was for him, in the exercise of his discretion, to consider whether or not to make that order. It cannot be said that in the exercise of that discretion, he was plainly wrong.
26. Accordingly, the respondent's application for permission to appeal must be refused. Her application for discovery must be dismissed and her separate ground of challenge to the directions given by the circuit judge, at the conclusion of the appeal, must, likewise, be dismissed.