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 BRISTOL COUNTY COURT
(Her Honour Judge Darwall-Smith
and His Honour Judge Lord Meston QC)

		Royal Courts of Justice Strand London WC2 Monday 25th February, 2002

1. LORD JUSTICE THORPE: There are three applications before the court today. For the record I identify the first two thus, 01/0560 and 01/0559. Those applications both relate to orders made by His Honour Judge Lord Meston QC on 25th January 2001. They are separate applications because the Civil Appeals Office made plain to Mr A that he had to have one application in relation to the Family Law Act order and another in relation to the Children Act order.
2. Mr A has filed a very clear and comprehensive argument in support of his application to appeal these orders that were made over a year ago. There has been what might be termed planned delay in bringing them to a hearing, and none of that counts against the applicant. But what inevitably counts against him is that the orders made by Judge Meston on that day were made by him in the exercise of his discretion, and nothing that has been said and nothing that has been written suggests to me that he in any way erred in the exercise of that discretion or arrived at a conclusion that was plainly wrong. Obviously Mr A feels deeply the injustice of these orders, but that is not the test to be applied. He has to demonstrate that there has been a fundamental failure in the process in the court below. That he has not done. There are no realistic prospects of success, and I put those applications to one side simply saying that they are dismissed.
3. What is perhaps of greater significance is the remaining application, which has been designated 01/2381, which is his application to appeal the order made Judge Darwall-Smith on 4th October 2001. Again, Mr A has put a huge amount of work into preparing this application. He has presented a written argument of comprehensive thoroughness. Really written submissions of this detail hardly allow much room for oral advocacy. But Mr A has addressed the court this morning with great feeling, and nobody could doubt his conviction that this endeavour by the family justice system to impose upon the disputing ex-spouses a solution that is fair has fundamentally failed.
4. The root order was made by District Judge Rutherford as long ago as 14th May 1998. That order was reviewed in this court on 18th November 1999 and again, passingly, on 14th August 2000. Following the failure of applications for permission to appeal, what followed inevitably was enforcement. Two applications for enforcement came before the same District Judge, District Judge Rutherford, respectively on 30th January and 3rd July 2001. It was his orders that Mr A appealed to the Circuit Judge. At a directions hearing Her Honour Judge Darwall-Smith provided that she would read the voluminous papers on 26th September and hear submissions on the 27th. Mr A has told me today that he spoke for five hours more or less uninterrupted on the 27th and that counsel for the respondent made brief reply. At the end of that the judge reserved her judgment, which she delivered on 4th October. It is obviously very carefully considered. It runs to 17 pages and it goes beyond merely reviewing the validity of the enforcement orders made earlier that year. It reviews the whole history of the litigation and all the orders previously made.
5. The judge's acceptance of the need to look at the root orders arises out of the fact that on 27th September, in the course of his fluent submissions, Mr A made very serious allegations of misconduct and non-disclosure against Mrs A, her solicitors and counsel. The judge characterised some of those allegations which she described as "increasingly intemperate and offensive". She considered whether there was any basis for these allegations. Although she heard no oral evidence, she pointed out that she had had the opportunity of an overview of all the proceedings contained in the papers, and she reached the conclusion that the allegations were without foundation.
6. In the end she accordingly upheld the enforcement orders made by the District Judge. Mr A has said that that outcome breaches his rights arising under Articles 3, 6, 8, 12, 13, 14 and the Protocols. But the judge had proper regard to the Convention, and she made the point that under Article 8 both Mr A, Mrs A and the children have rights and there had been no interference, or, if there had, it was plainly justified in the circumstances. The judge also had regard to the case of Beer v Higham, relied upon by Mr A in his argument, but she had no difficulty in holding that that authority was not relevant to the issues raised in the appeal.
7. I have emphasised to Mr A that this application is an application caught by section 55 of the Access to Justice Act 1999. The relevant provision is to this effect:

"(1) Where an appeal is made to a county court ... in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that-

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it."

8. This statutory provision has been interpreted strictly by this court. This is a high hurdle which few litigants successfully pass. Of course from Mr A's point of view everything here is important; everything here is a point of principle or practice; everywhere there are compelling reasons for intervention. But looked at from the court's perspective, this is a very sad case in which a root decision was taken as to the division of assets in 1998. That decision stands, absent some proof of fraud or other vitiating element. Mr A's endeavour to establish such a vitiating element failed in front of the Circuit Judge. So all that was left was the essential enforcement. That is all that District Judge Rutherford was dealing with in January and July 2001, and all that the Circuit Judge was doing was upholding his decisions on enforcement.
9. There is absolutely nothing here that begins to constitute an important point of principle or practice objectively viewed. Nor is there anything that could possibly be said on an objective judgment to compel this court to hear the case. As Judge Darwall-Smith pointed out in her reserved judgment, litigation between these two has gone on for far too long and at far too great a cost already. This is plainly not business for the Court of Appeal. This application likewise must stand dismissed.
ORDER: Applications for permission to appeal refused. (Order not part of approved judgment)