England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UXBRIDGE COUNTY COURT
(HIS HONOUR JUDGE CATLIN)

		Royal Courts of Justice Strand London WC2 Wednesday 16th January 2002

Wednesday 16th January 2002

1. MR JUSTICE WILSON: Mr Sherrocks, to whom it is convenient to refer as "the husband", acts in person in seeking permission to appeal from an order of his Honour Judge Catlin, who was sitting at Reading but as a judge of the Uxbridge County Court, dated 27th June 2001. The order was made in proceedings for ancillary relief between the husband and the wife in divorce proceedings which, though defended by the husband, had resulted in the pronouncement of a decree nisi by his Honour Judge Marcus Edwards on 10th December 1999. The proceedings before Judge Catlin were by way of appeals to him brought by both parties from an order of a district judge of the Uxbridge County Court, namely District Judge Wicks, dated 15th November 2000. The same two junior counsel, each experts in the field of ancillary relief, represented the husband and the wife in the proceedings before the district judge and in the appeals before the circuit judge. As I will explain, the decision of the circuit judge was to allow the appeals, set aside the order of the district judge and make different provisions by way of ancillary relief. It could perhaps be said, looking at the matter very broadly, that the order of the circuit judge left the husband in a somewhat better financial position, and the wife in a correspondingly worse financial position, than under the order of the district judge. Of course the circuit judge, hearing the matter prior to the recent decision of this court in Cordle v. Cordle [2001] EWCA Civ 1791, applied the old principles to the despatch of appeals from District Judges referable to ancillary relief, which set appellants a lower hurdle to jump than now confronts them. Arguably the husband was the beneficiary of that circumstance; but my preliminary view is that the circuit judge would have been likely, even under the new principles, to have allowed the appeals as he did.
2. Last week the husband wrote to this court asking for an adjournment of today's hearing on the basis in particular that he had booked a holiday which was to begin last Monday. I refused the application and he was so notified. In those circumstances I am very glad to see him today. It has to be said, however, that he is clearly unwell. He is 67 years old and there is in the papers a mountain of evidence as to his health problems. However he has provided this court with three immaculate bundles; and, notwithstanding the stress visible to all in this courtroom this afternoon, he has addressed me with great clarity and civility for over half an hour. He is a shrewd man and, despite his distress, he must well understand the problems which surround this application. He has, in my view, presented the arguments as well as any professional advocate could have presented them; and I am extremely grateful to him for his assistance.
3. The nub of the husband's complaint about the orders made by the circuit judge relates to the disposition of the future proceeds of sale of the matrimonial home. The home is a substantial property in Gerrards Cross vested in the legal name of the husband but in respect of which, as declared in 1987 in proceedings brought under section 17 of the Married Women's Property Act 1882, the wife has a 50 per cent equitable interest. Notwithstanding the divorce proceedings, the parties still live under the same roof there; but it is common ground that the property should be sold. Like the district judge, the circuit judge proceeded on the basis that the property had a value of about £700,000, but that, after allowing for a mortgage debt of about £119,000 and costs of sale of about £21,000, the equity was about £560,000, of which of course each party's one half share was about £280,000.
4. I should say that the mortgage debt to which I have referred appears, and was taken by the circuit judge, to be charged upon the interest of the wife as well as of the husband in the property. Reluctant as I am to contemplate yet further litigation in this matter, I have in fairness to say that, if that premise turned out to be incorrect, lawyers on behalf of the husband might need urgently to help him to consider his position and whether anything could be done to re-open matters in the light of the proven invalidity of that important premise.
5. The husband's half share of the property is, unfortunately, more than fully eradicated by debts charged solely against it. Thus it is only the wife's half share which, for the purposes of the divorce court, carries value. The Circuit Judge's order was that, of her half share, the wife should retain 70 per cent (about £196,000) and that the husband should take 30 per cent (about £84,000). If permitted to appeal to this court, the husband would wish to argue that the proper division of the wife's share should be equal as between him and her and thus that he should take about £140,000, namely about £56,000 more than was awarded to him by the circuit judge.
6. I can address the background briefly. The wife is one year older than the husband, namely 68. They were married as long ago as 1956 and there were two children, now of course adult and independent. The husband was a businessman of no little acumen and at times success. But he fell into financial difficulties in the late 1980s, and in 1991, on the petition of the Inland Revenue, founded, so the husband has told me, on an alleged debt which, though found proved in the High Court, was not properly payable, he was declared bankrupt. Three years later he obtained his discharge. It was in 1998 that the wife petitioned for divorce under section 1(2)(b) of the Act of 1973. So the marriage may be said to have endured for about 42 years. In that the husband, appearing again for this purpose by himself, filed an answer denying the wife's allegations in the petition and in that they were therefore the subject of extensive evidence before, followed by a judgment given by, Judge Marcus Edwards, it was inevitable that any court considering issues of ancillary relief would pay regard to such part of his judgment as related to those issues. Thus it was, I am driven to conclude, properly taken into account by both the district judge and the circuit judge that the husband had been found by Judge Marcus Edwards throughout the marriage to have been irresponsible and devious in regard to his financial affairs; to have kept the wife in the dark; and to have given that judge an account of his relationship, or absence of relationship, with a funeral director's business which that judge had been unable to accept.
7. There have been three interlinked aspects of the order made by the district judge for ancillary relief. The first concerned periodical payments. It was common ground that the wife had no earning capacity and no income, not even a state retirement pension. There was lively issue about the extent of the husband's income. The wife alleged that, through the funeral director's business and in particular through a limousine chauffeur business, the husband was then still earning a very substantial income. This was vigorously disputed by him. The conclusion of the district judge was that the husband was earning about £50,000 a year, apparently net, and therefore that he should be ordered to make periodical payments to her, during their joint lives until her remarriage or further order, in the sum of £18,000 per year. The second aspect of his order was for the earmarking in favour of the wife of one half of a pension thought to be payable to the husband once it came on stream; and for the pro tanto reduction of his obligation under the order for periodical payment in respect of any monies thus received. The third aspect was a direction that the wife's 50 per cent equitable interest in the net proceeds of sale of the home be split as to 53 per cent to her and as to 47 per cent to the husband.
8. Before the circuit judge it was common ground that, through no fault of his own, the district judge had been wrong to make the earmarking order in that, as it had by then been discovered, all benefit thereunder was likely to have vested in the Official Receiver as the husband's former trustee in bankruptcy. So, by consent, that provision was set aside.
9. The burden of the husband's appeal to the circuit judge was that the district judge had been wildly wrong to ascribe to him an income of £50,000 per annum net, particularly in the light of his age and state of health, and that therefore the order for periodical payments had been wrongly made. The burden of the wife's appeal was that, in the light of what she said was the husband's profligacy and her own careful and protective management of her interest in the home, it had been wrong for the district judge to have removed from her 47 per cent of her interest in it.
10. The circuit judge, an official but unapproved transcript of whose judgment is now to hand and has been read to the husband (who has sight problems) immediately prior to this hearing, concluded that it was a case for a clean break between the parties; that therefore the order for periodical payments made by the district judge should be set aside; but that, in order to reflect the future absence of maintenance, the division of the wife's interest in the net proceeds of sale of the property should be varied from a ratio of 53-to-47 to one of 70-to-30 in favour of the wife.
11. There is no doubt that the circuit judge was under a duty under section 25A(1) of the Act of 1973 to consider whether it would be appropriate to effect a clean break between the parties. Indeed it seems that the district judge had failed to discharge his duty in that regard. The circuit Judge's conclusion that, whatever was the true level of his income, the husband was very likely not to comply with the order for periodical payments, such that, in that judge's words, it was "not worth the paper it was written on", seems unchallengeable. The circuit judge declined to re-investigate the size of the husband's income on the basis that the absence of relevant documents and the husband's record of deceit would defeat any such re-enquiry. The fact remained, however, that, whatever the husband's income was, it was not visible and thus not readily assailable in enforcement proceedings. In relation to the likelihood of compliance with an order for periodical payments, the circuit judge was entitled to bear in mind that the husband had ceased to make any payments to the wife in June 1999 on the expressed basis that, as Judge Marcus Edwards had recorded in his judgment, "we are fighting each other and I don't give money to adversaries"; and entitled also to consider that, even were periodical payments to have been successfully extracted from the husband in the short term, his age and state of health made it unlikely that they would continue to be properly payable in the medium or long term.
12. But, as the husband had (I note) been advised, the elimination of the obligation to make periodical payments to the wife would not be without risk for him. Provisions by way of property adjustment and of financial provision are complementary; and the future absence of periodical support for the wife was clearly a matter properly to be brought into account in the division of what, after all, was her share of the matrimonial home. The circuit judge's decision was that the absence of periodical payments should be reflected in an adjustment which would enable the wife to retain a further 17 per cent of her share, which, on the agreed figures, amounted to about £48,000. That is why I indicated at the outset of this judgment that the decision of the circuit judge was arguably more favourable to the husband than the decision of the district judge.
13. If granted permission to appeal, the husband would complain that the circuit judge was unduly influenced by unsubstantiated allegations by counsel for the wife that he had £300,000 by way of undeclared and hidden assets and was capable of earning the sum of £50,000 per annum which had been ascribed to him by the district judge. I do not read the judgment of the circuit judge as finding that the husband had either hidden assets, or income, of that or any particular size. True it is that he refused to allow re-investigation of his income, but that was a decision fully within his discretion (see G (formerly P) v. P [1977] 1 WLR 1376 at 1382H) and in any event he was careful not to found his judgment on the particular figure referable to income favoured by the district judge.
14. The husband next complains that the provision in his favour out of the wife's share of the equity of the home, namely only about £84,000, supplies him with an insufficient sum to enable him to purchase alternative accommodation, particularly in the area of Gerrards Cross where he has his friends and, I hope, a network of support, whereas (so he says) the sum of about £196,000 left to the wife equips her with more than she had said that she needed in terms of the purchase cost of small accommodation. The difficulty for the husband in pursuing that argument in this court is that, of course, it ignores any other hidden assets, and the purchasing power of his current income, whatever the size thereof may be; and in circumstances where Judge Marcus Edwards and, on independent investigation, the district judge, had come to the conclusion that the husband's disclosure was false, it would be impossible for this court to conclude that the sum awarded to him out of the home is the only sum at his disposal in meeting the cost of his future accommodation, purchased or rented.
15. I note at this point in my judgment that the husband is showing particular distress and dissent, but he will understand that this is not a court where such findings of fact can be re-visited.
16. The circuit judge found that he had evaded payment of a large amount of tax unrecovered in the bankruptcy, even though I have been careful to note what the husband has said about the invalidity of that debt. In my view the circuit judge was entitled, on the evidence, to describe him as able to manipulate his financial circumstances to his own advantage.
17. Included in the husband's case, as set out in his Appellant's Notice, are two features which flash amber lights at the ancillary relief specialist. First is his request for an order that the sale of the home be postponed for some months to enable him to continue to negotiate with a third party who might buy out the wife's interest. Although the husband did not volunteer any explanation, and nor in fairness did I ask him for it, of the circumstances in which some third party might act in that way, and in the process apparently save him from loss of occupation of the home, one is immediately concerned that there may be some "resource" in the background, available to be drawn upon for the husband's indirect benefit which, although there was an analogous hint of it before the circuit judge, has not been fully disclosed in the proceedings. The second feature is the husband's proposed challenge to the decision of the circuit judge, in this respect upholding the decision of the district judge that the wife should have conduct of the sale of the home. In circumstances where, from the time of the husband's defence of the petition for divorce onwards, he has made clear his intention to obstruct his removal from the comfortable home by all means possible, the suggestion that it should be he, rather than the wife, who should instruct the estate agents and the lawyers in connection with the proposed sale raises big question marks against his intentions to proceed towards sale.
18. The final ground for the proposed appeal is that, I am sorry to say, the husband was taken ill at around lunchtime on the second day of the two day hearing before the circuit judge. In those circumstances, says the husband, the hearing should have been adjourned. The husband cannot tell me, and it is far from clear, whether the highly experienced counsel then representing him sought any adjournment. Even had he done so, the judge would, in my view, have been entitled to reject his application. The litigation had already been becalmed by the absence of the husband through illness (and for this purpose I accept that it was genuine illness), for example in June 1999 when, following his non-appearance, the judge had granted a decree nisi which later he had felt obliged to rescind. At the hearing of the appeals relating to ancillary relief, the circuit judge resolved not to receive further oral evidence, whether from either of the parties or otherwise; and in those circumstances it was on any view practicable, perhaps indeed merciful, albeit obviously not ideal, for the hearing of the appeals to be concluded notwithstanding the husband's illness.
19. I would have been driven to the conclusion that the husband's appeal to this court would have no real prospect of success. As it happens, however, the husband faces an even more formidable hurdle than is reflected in those words. Under rule 52.13(2) of the Civil Procedure Rules 1998, reflective of section 55(1) of the Access to Justice Act 1999, I cannot give permission unless I consider that his appeal would raise an important point of principle or practice or that there is some other compelling reason for this court to hear it. The facility for a second appeal has thus been greatly circumscribed by Parliament, which clearly considered, as I believe reasonably, that second appeals can be used as a delaying tactic or otherwise as an abuse of court process or at least require use of judicial resources disproportionate to a single case. I fear that the husband cannot begin to bring his case within the permitted criteria. It may then be said: why have I just gone to the trouble of describing his case in so much detail? The answer is that I want the husband to realise that, even if such formidable obstacles had not crossed his path, he would not have succeeded in his proposed appeal; and that indeed to me, as a judge who professes expertise at trial court level in precisely this type of case, the judgment of the circuit judge seems to be, from an objective point of view, impeccable.
20. Speaking as a human being, my heart goes out to the husband, whose distress, stress and ill-health have all been so visible this afternoon. But as a judge it is my duty to refuse his application.