England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(Her Honour Judge Carr)

		Royal Courts of Justice Strand London WC2 16th April 2002

16th April 2002
1. THE PRESIDENT: Mrs Eve seeks permission to appeal to the Court of Appeal. It is what is popularly called a second tier appeal. Under the Civil Procedures Rules of 1998 paragraph 52.1(3):

"Permission is required from the Court of Appeal for an appeal to that court from a decision of a county court [and this was a county court decision] which is itself made on appeal."

2. In subparagraph (2):

"The Court of Appeal will not give permission unless it 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."

3. Mrs Eve's application for permission to this court has to be considered in the light of one or other of those two requirements.
4. She and her husband married on 23rd September 1972. They separated in February 1993. They had no children. The decree absolute was made on 4th July 1997. Both parties were either 51 or 52, very close in age. They had both worked.
5. The matter came on an ancillary relief applications before District Judge Hill at the Sheffield County Court on 2nd January 2000. District Judge Hill reserved his judgment which was given on 31st January 2001. It was a careful written judgment in which he came to the conclusion that there should be no payment whatever to the wife. He said:

"I do not find therefore any requirement for maintenance from the husband. I therefore dismiss the wife's claims."

6. For the purpose of this permission to appeal it is not necessary for me to go in any detail to the financial disparity which is alleged by the wife to be the result of that situation. I have to look at this, I have to say to the wife, in a far broader way than the details of the figures.
7. The wife was represented by counsel at the hearing before the district judge. Because of the financial position of each party, and the fact that she had been working and had assets, she was not eligible for legal aid and she therefore paid for the lawyers who represented her and was represented by counsel.
8. One of her criticisms in relation to the district judge was that the husband had provided at a very late stage a considerable amount of additional evidence provided on the day of the hearing. Her counsel asked for a brief adjournment to look at the schedule of assets that the husband had not provided before the hearing. He did not ask for an adjournment to enable him or the wife to investigate in depth whether or not these documents materially changed the approach that the wife would make to this case. That seems to me, I have to say, a matter of some significance because one has to assume, and I have to assume, that the case was therefore fairly presented to the district judge.
9. The allegations made by the wife, which she repeated to the circuit judge and indeed to me today, which were that the husband was providing a raft of false claims and obvious chicanery, as Mrs Eve expressed it today, were not accepted by the district judge, who came to the conclusion that the husband had not deliberately falsified documents, or deliberately omitted information that he should have provided.
10. The wife, dissatisfied with the decision of the district judge, appealed to Her Honour Judge Carr. In November of 2001 there was the hearing. Judge Carr herself gave a reserved judgment on 6th December 2001. It was at that stage the wife felt that she could no longer afford to pay for lawyers. She represented herself. It is clear from the judgment of Judge Carr that Mrs Eve had put in an enormous amount of time and effort to provide a very detailed and carefully constructed notice of appeal and the documents to support it. At a pre-trial directions hearing the judge herself gave permission for additional evidence to be provided at the appeal. That she did in line with an earlier decision of the Court of Appeal in Marsh v Marsh, in which a judge was able to look again at the hearing before the district judge, to accept in a relatively informal way additional evidence, permit from time to time oral evidence to be given before the appeal judge and for the appeal judge to exercise his or her own discretion in relation to the decision made by the district judge. That was the approach that Judge Carr adopted in this case.
11. However, the case took several days (three days to hear) and during the hearing a decision of the Court of Appeal was handed down and came to the attention of the judge a fortnight later. The decision of the Court of Appeal was Cordle v Cordle heard on 15th November. The members of the court were Thorpe LJ and myself. We took the opportunity to reconsider Marsh v Marsh and appeals from district judges to circuit judges. We gave directions as to the practice to be followed in future.
12. Mrs Eve has referred to a distinguished academic's comments on whether or not the decision of the Court of Appeal and the new guidance is or is not in line with the Family Proceedings Rules of 1991. Whether they are or no, the Court of Appeal decision stands until it is challenged as being ultra vires the rules, or otherwise set aside whatever it may be, and I, as well as anybody else, am bound by what was decided by Thorpe LJ and myself in Cordle v Cordle.
13. Consequently, in looking at this permission to appeal, I have to look to see whether the circuit judge was right to apply Cordle v Cordle when she gave her judgment on 6th December. She was. Clearly from the tone of her judgment she was unhappy with it. She was unhappy at not being given the full exercise of discretion to hear the case afresh as she thought she ought to be able to, but, like everyone else, I am afraid, she has to fall in line with the decision of the Court of Appeal. I read from the headnote for convenience:

"Any appeal from a decision of a district judge in ancillary relief should only be allowed by the circuit judge if it had been demonstrated there had been some procedural irregularity, or that in conducting the necessary balancing exercise the district judge had taken into account matters which were irrelevant, or ignored matters which were relevant, or had otherwise arrived at a conclusion which was plainly wrong. Equally a circuit judge hearing such an appeal would not admit fresh evidence unless there was a need to do so on the application of more liberal rules for the admission of fresh evidence recognised as necessary in family proceedings."

14. And we disapproved of Marsh v Marsh.
15. The circuit judge, faced with the wife wishing to put in new evidence primarily to show that the husband had made a raft of false claims, that his credibility was to be challenged, came to the conclusion that she had to apply, and she was right to come to that conclusion, the more restrictive approach of the appellate court, which was not to allow it unless there was some good reason to do so. She said in her judgment, looking with some care at CPR Rule 52(11), setting out the way in which an appeal would be limited to a review of the decision of the lower court and then setting out the exceptions to that, which included:

"Unless it orders otherwise, the appeal court will not receive oral evidence or evidence which was not before the lower court."

16. She said at paragraph 5 of her judgment:

"In the event, in the light of the decision in Cordle, although originally sympathetic to [Mrs Eve's] application, it seemed to me that, even though there may be more liberal rules in the context of Family Proceedings, that essentially all the matters that the wife sought to cross-examine the husband on were matters that could properly have been taken before the district judge."

17. I go back to the fact that there was no application for an adjournment to be able to look more critically at the documentation on another occasion.
18. The circuit judge then came to the conclusion that the district judge, in conducting the balancing exercise as he had to under section 25 of the Matrimonial Causes Act 1972, did so fairly. Consequently he did not act outside the ordinary rules. She said:

"I do not consider that the district judge gave undue weight or acted in a way in relation to that account that could possibly be regarded as any sort of procedural irregularity.

...

Again it seems to me, that I have to ask, was the district judge, in saying she could meet her own needs out of her capital in the balancing exercise that he had carried out, plainly wrong? I cannot say he was."

19. Then she goes on, because she clearly did not like Cordle v Cordle:

"The fact that I may have considered a need for the seven years or so until the wife's pensions kick in, is not to say that I am now entitled to substitute that discretion. I am plainly not permitted so to do as a result of Cordle."

20. She then looked at the point about the raft of false claims and said:

"I am not able to make a finding that the husband has failed to make full disclosure."

21. She came to the conclusion that, bound as she was by Cordle v Cordle, she could not interfere with the district judge's decision. In the normal course of cases she was entirely right, and whether Cordle v Cordle came to her at the beginning, the middle or the end of the hearing, she was bound by the new procedure.
22. Understandably Mrs Eve feels very sore about this. She had been given permission to present additional evidence. She is then told that she cannot do so. She had been led to believe that she would be able to give oral application, cross-examine the husband and go through all the documentation to show, as she hoped she would be able to show, that the husband had put up a false case. The district judge did not think the husband had put up a false case. On the facts before the circuit judge she did not think that the husband had put up a false case.
23. The difficulty for Mrs Eve is that if she had had time, and she said she should have been granted an adjournment, that she had only had a very short note of what Cordle v Cordle said, she was not given proper time to consider the implications of Cordle, but I am sorry to have to say to her that if she had been given an adjournment, that is she had been given time to consider the implications of Cordle v Cordle, she would still have been faced with the circuit judge having to treat this case as an appeal which could only be interfered with by reason of procedural irregularity, or by the district judge being plainly wrong. It would not have helped Mrs Eve, but understandably as a litigant in person she feels that she was ill done by. She was very unlucky that it all arose in the middle of the case. It does not, however, affect the decision to which the judge rightly came.
24. The judge did not misdirect herself. She was perfectly entitled not to grant an adjournment because the adjournment would not have assisted the wife. If she was right that the evidence could have been provided broadly before the district judge, she was right not to allow the additional evidence in. That was entirely in Rule 52(11). The Cordle decision is a direction to the judiciary, not an aspiration for the future.
25. The district judge and the circuit judge did not think that Mrs Eve was in an unfair position against her husband. They did not think that there was not what is sometimes called the level playing field. Consequently I have no evidence before me, bearing in mind the judgments of the district and the circuit judge, to come to the conclusion that there has been any breach of Article 6 of the European Convention on Human Rights.
26. Mrs Eve in her written submissions has suggested that the decision of the House of Lords in White v White had not been applied. I do not propose to go into it in any detail. I do not share Mrs Eve's view on that. The general proposition of White v White is to do justice between the parties. Both the district judge and the circuit judge took the view that, broadly, justice had been done.
27. I am disturbed, I have to say, by what the circuit judge said because she gave Mrs Eve a scintilla of an argument by drawing the distinction between what she had to do in the light of Cordle v Cordle and what she would like to have done if the decision of Marsh v Marsh had still applied, where she could have heard oral evidence and where she could have exercised her own discretion. Twice she sets out that she was minded to have done something different, to have awarded a sum of money to Mrs Eve in order to cushion the point between the hearing in December 2001 and the point at which, as she put it, the pension provisions kick in, which I think is six or seven years.
28. I do not think it was very helpful of the circuit judge to have said that. I think that she clearly, as I have said already, did not agree with the Court of Appeal decision in Cordle and she let her feelings escape her in indicating to the wife what she would like to have done. I cannot stress too strongly how unhelpful that was because it gives to the wife a feeling of great injustice and a feeling that she has been deprived of a specific sum of money that the circuit judge might have awarded.
29. If it is not possible to do something because the law or procedure changes, judges should not say what they would like to have done although they cannot now do it. Mrs Eve is entitled again to feel sore that she may have been deprived of it. But at whatever point the procedure set out in Cordle v Cordle became effective, it was overdue for the Family Courts to have the same rules for family cases whether relating to ancillary relief, child or other family cases.
30. This court, looking at the way the circuit judge properly dealt with the case in the light of Cordle v Cordle, has to ask whether this appeal would raise an important point of principle or practice. The short answer is, no, it does not. Is there any other compelling reason for the Court of Appeal to hear it? Mrs Eve feels that she has been very unlucky and that she has been unfairly treated. But the circuit judge did look at the issues which are relevant for the Court of Appeal, which is, was there a procedural irregularity? Did the district judge approach this case the right way? Was he plainly wrong? To which she gave the answer on each of those "no". Consequently there is no compelling reason why this case should be heard by the Court of Appeal. The scarce resources of the Court of Appeal should, as previous decisions of this court have said, be utilised to deal with matters of importance. Mrs Eve's case is enormously important to her, and I understand it, and I am sorry that she finds herself in this position, but I hope afraid that sympathy from the court is not a substitute for saying that the court should deal with the case.
31. Therefore, with sadness for her, but without any doubt whatever, I refuse permission.
ORDER: Application refused. No order as to costs.