England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COLCHESTER COUNTY COURT
(His Honour Judge Brandt)

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

1. LORD JUSTICE WARD: This is an application brought by Philip Stanton for permission to appeal against the order of His Honour Judge Brandt, sitting at the Colchester County Court, on 31st July 2001. The judge was hearing an application which he treated as an application for permission to appeal the orders made by District Judge Molle on 21st June 2001.
2. I will say a word about the background before I get to the heart of the difficulties in this case. In divorce proceedings brought by Mrs Carol Stanton an order was made by District Judge Gypps on 2nd March 1998. It was an order made by consent to resolve the ancillary relief proceedings between husband and wife. By that order the husband (as I shall call Mr Stanton) was ordered to pay the petitioner (his wife, or former wife) £2,500 by way of a lump sum. Secondly and materially, the petitioner wife was to transfer all her interest in the former matrimonial home, Millfields, Middleton, Sudbury, to the husband, subject to the mortgage on that property. But - and this is the important part of it - the respondent husband was to execute a charge, in terms of the draft annexed to the order, in favour of the petitioner over Millfields in respect of 50 per cent of the net equity upon the following terms:

"(i)such Charge not to be enforced until the first of the following:

(a)the Intervenor ceasing to occupy the property as his residence

(b)the death of the Intervenor

(c)further order of the Court."

3. The intervener was Reginald Stanton, the father of Philip. The circumstances of his involvement are not entirely clear, but it seems that what happened was this. When Mrs Stanton (the wife of Reginald and the mother of Philip) was seriously ill she sold her property and used the proceeds of sale - a sum, perhaps, of some £85,000 - to convert the property and add what is commonly known as a "granny annex" to the existing property at Millfields. Sadly, she died shortly thereafter, but Reginald remained in occupation of the granny annex, which had become part of Millfields. Mr Reginald Stanton is a gentleman in his early eighties or thereabouts. He has not been well and undoubtedly there came a point in time when, in circumstances the subject of bitter dispute, he was removed from Millfields by the Social Services Department and placed in independent old age accommodation. As a result of that removal, Carol Stanton applied to enforce the charge of the property.
4. That application came before District Judge Molle. There appeared, as I read his judgment, to have been two issues before him. The first was whether or not the granny annex formed part of the property to which the charge related. As to that, the district judge was satisfied that it did. The charge is in the papers before me. The charge covers, in Part 1 of the Schedule:

"ALL THAT freehold property known as and situate at Millfields ... as the same is more particularly described in a Conveyance of even date made between the Mortgagor of the first part, Mrs Stanton of the second part and Abbey National Plc of the third part."

"Mrs Stanton" for that purpose was Carol Stanton, the petitioner.

5. But Part 2 of the Schedule clearly relates to a parcel of agricultural land registered under a different title number. I have the land certificate among the papers and the charge is clearly registered in respect of Millfields, not in respect of that agricultural land. I would have thought - but this is, of course, a preliminary view - that it must be extremely difficult, if not impossible, to argue that the granny annex did not form part of the property subject to the charge. If Mr Stanton was led by his solicitors to believe otherwise, he may or may not have some remedy against them, as to which I express no view at all one way or the other. But on the face of the documents he has difficulty in asserting his case that the granny annex must in some way now be severed from the land, so that it does not form part of the sale. A moment's thought would, or should, convince him of the impossibility of his contention: you cannot sell a house divided down the middle. So his complaint against that part of the district judge's findings would appear, at least on a preliminary view, to be utterly hopeless.
6. The second challenge before District Judge Molle was whether or not father Reginald was still residing or, to use the words of the order, whether father Reginald had ceased to occupy the property as his residence. The district judge heard evidence about that. He heard, in particular, evidence from Reginald Stanton, who gave, it would seem from the note of the judgment, a confused account of what was happening. He had signed a letter prepared by his son saying one thing, yet he had told solicitors he had instructed the opposite. Although he insisted that he had changed his mind and intended to return to Millfields, the district judge was quite satisfied on the evidence that he had in fact ceased to occupy the property as his home and that he had no intention of returning. Thus District Judge Molle made an order declaring that (although it incorrectly says "Ronald", it must mean "Reginald") had ceased to occupy Millfields as his residence within the meaning of the consent order of 2nd March 1998 and that accordingly the petitioner had permission to enforce the sale of the property forthwith. He also gave consequential directions to deal with that sale.
7. As I have indicated, Philip Stanton filed a notice, which would seem to have been in time, saying, "I want to appeal" and setting out as his reason, among others, that his father was still resident in the property. There is an undated application by Reginald Stanton saying:

"I am wishing to appeal as I am living at Millfields, as I invested my life savings of £83,000 in the property. I wish to remain in my family home. I am now 80 years old."

8. I have no note of the judge's judgment dealing with that application. The order he made was (1) that the application for leave to appeal be refused; and (2) that the respondent pay the petitioner's costs.
9. The order made by the judge on 29th June was as follows:

"The District Judge heard this matter and no doubt dealt with all factual issues. These cannot be reopened on appeal. I can see no grounds here for giving leave to appeal and leave is refused."

10. Mr Philip Stanton appears to have sought permission to appeal to this court and that was refused by the judge on 31st July. There has been quite considerable delay between that date and his bringing this matter to the Court of Appeal.
11. I confess that, on first reading this matter, I had thought that this application was utterly hopeless. But, on reflection, I am persuaded that there is a matter which the court does need to consider. Under section 54(1) of the Access to Justice Act 1999 it is provided that:

"Rules of court may provide that any right of appeal to -(a) a county court,

(b)the High Court, or

(c)the Court of Appeal,

may be exercised only with permission."

12. Subsection (4) reads:

"No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)."

13. On my first glance at the papers I had assumed that the application met the insuperable difficulty that it was an application for permission to appeal a refusal of permission to appeal and, under section 54, that is simply not possible. I was minded to dispose of the application on that ground. But, on further research, it may be that there has been a misunderstanding in the county court. It will not have been the first time this has occurred. The misunderstanding is for the county court judge to assume that permission is needed in a family matter to appeal from a judgment of the district judge. As far as I know, the family proceedings rules have not yet, or at all, incorporated a requirement for their to be permission to appeal in an ancillary relief order or an order like this enforcing an ancillary relief order. It may therefore be that section 54 of the Access to Justice Act does not preclude the matter coming to this court. If it can be shown that the learned judge was in error and that he approached the application before him as an application for permission to appeal, then he misunderstood the nature of what he was to do, namely in fact to entertain a full-blown appeal from District Judge Molle's order; and it may be that there is room for this court saying that his error was fundamental.
14. I therefore give permission to appeal to consider the limited question of (a) whether or not the judge was correct to treat this matter as an application for permission to appeal, as opposed to a full appeal; and (b) whether or not, on the facts, the district judge's order can be upset due to Mr Reginald Stanton remaining in occupation within the meaning of the consent order.
15. So I shall give permission to appeal. The matter should be listed before at least one lord justice familiar with family work. It can be a two-judge constitution, I would have thought. It is a matter that certainly needs to be clarified.
16. But now I give to Mr Stanton junior and his father, who is not actually a party in this court, a word of warning. This is a very technical appeal indeed. Their only hope of persuading this court to interfere on the merits is by making a further application to adduce fresh evidence, namely fresh evidence of exactly what has happened to Mr Reginald Stanton: if he came back; when he came back; where he is living now; and what his plans for the future are. Reginald Stanton has a number of members of a support team with him and, as I see that the Pro Bono Unit have already assisted in the preparation of the bundle, or that the Citizens Advice Bureau have helped, it would be useful to seek some further advice as to how to get this fresh evidence to the Court of Appeal.
17. On that basis, I give permission to appeal.
Order: application for permission to appeal granted; matter to be listed before two-judge constitution, to include at least one LJ familiar with family work.