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 BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE MESTON QC)
[LOWER COURT No. BH03D00492]

		Royal Courts of Justice Strand London, WC2
		Wednesday, 5th July 2006

1. LORD JUSTICE WILSON: Mr Darnton, who appears in person, applies for permission to appeal against orders made by HHJ Meston QC in the Bournemouth County Court on 22 February and 28 April 2006. Before the judge were applications made by Mr Darnton; to them Mrs Darnton was a respondent and in them the Attorney General was an intervener. Mr Darnton's applications were that the judge should rescind or set aside decrees nisi of divorce which on 13 December 2004 he had granted to Mrs Darnton against Mr Darnton and to Mr Darnton against Mrs Darnton and other orders made on that day. The judge's order on 22 February 2006 was to dismiss Mr Darnton's applications; and his order on 28 April was to order Mr Darnton to pay the costs of Mrs Darnton and of the Attorney General referable to the applications subject to assessment on the indemnity basis. Against these orders Mr Darnton aspires to appeal.
2. At the centre of the litigation, which has an extraordinarily protracted history, has been an issue between Mr Darnton, who is of white British ethnicity, and Mrs Darnton, who is of Indian ethnicity, as to whether they were validly married in Bangalore on 2 or 3 December 1992. On any view they underwent a purported ceremony of marriage on 2 December 1992. On any view, either on that date or on the following day, in the presence of each other, they both signed a memorandum of marriage, written in English; and Mr Darnton signed it as "Bridegroom" and Mrs Darnton signed it as "Bride". Thereafter for ten years they lived as husband and wife in England and had two children. Sadly there were problems between them, as a result of which, for example, Mr Darnton, when writing to Mrs Darnton's solicitor in March 2003, stated "I probably agree that the marriage has broken down irretrievably". The emphasis is mine.
3. When, however, in April 2003, Mrs Darnton presented a petition for divorce against Mr Darnton, including the conventional financial claims, Mr Darnton countered with an allegation that he and Mrs Darnton had never been validly married. He asserted in particular that under Indian law the marriage was valid only in the event that he had been converted to Hinduism and that, on the contrary, he had never been so converted. In the alternative he cross-petitioned for divorce.
4. In 2003 and 2004 the issue as to the validity of the marriage spawned a substantial enlargement of forensic conflict. To the divorce proceedings Mr Darnton added an application for a declaration that he had not lawfully been married to Mrs Darnton. Both he and Mrs Darnton procured expert evidence, of a conflicting character, as to the validity of the marriage under Indian law. The Attorney General became an intervener in both proceedings and procured his own expert evidence, which accorded with that procured by Mrs Darnton.
5. The hearing on 13 December 2004 had been intended to be a hearing both of the issue raised in Mr Darnton's application for a declaration and of the preliminary issue raised in the divorce proceedings, namely whether there had been a valid marriage. Mr Darnton, then as now, appeared in person; counsel represented Mrs Darnton and the Attorney General. In the event a compromise was reached. Its terms are to be collected from a draft order signed by Mr and Mrs Darnton and the two counsel. The transcript of the hearing on that day shows that it was explained to the judge that the crucial change, from which all else flowed, was that Mr Darnton sought permission to re-amend his answer in order that, instead of denying that he had been validly married to Mrs Darnton, he both admitted and indeed positively averred that he had been validly married to her. Consequentially all three parties invited the judge to dismiss Mr Darnton's application for a declaration that he had not lawfully been married to Mrs Darnton; and Mr and Mrs Darnton proceeded to invite the court to grant cross decrees nisi of divorce to each of them against the other upon an undefended basis.
6. At the foot of the draft, signed 'minute of order' was a note, namely:

"Judge to decide … whether he wishes to add to paragraph 1 'without deciding that R is/was a Hindu' – but not a condition precedent of agreement."

It was explained to the judge that, while, as the note indicated, he did not make this request a condition precedent to his agreement, Mr Darnton considered it appropriate for the judge to include those words, whereas Mrs Darnton and the Attorney General considered that they might later be a source of confusion and were better omitted. In the event the judge elected to omit them. In that the expert evidence had addressed in detail the circumstances in which Indian law would infer – or presume – conversion to Hinduism from the admitted evidence, including by videotape, of Mr Darnton's unequivocal participation in the elaborate ceremony of marriage and his subsequent subscription of himself as the bridegroom, it seems to me that Mr Darnton's concession of a valid marriage was not inconsistent with a reservation of the question of whether he truly was or had been a Hindu. But I readily follow the concern of the judge not to precipitate any future confusion by incorporation of words which, although he advocated it, Mr Darnton did not insist upon.

7. In the event, keen to assist, the judge went further than the minute of consent order had anticipated. Instead of consigning the amended petition and the re-amended answer to subsequent travel through the special procedure, he offered to pronounce decrees nisi there and then. For that purpose Mrs Darnton and then Mr Darnton, each on oath, formally confirmed the truth of the allegations in those documents. Asked by the judge whether he could confirm that from his point of view the "marriage" had irretrievably broken down, Mr Darnton said that he could indeed do so. Decrees nisi were duly pronounced.
8. Shortly thereafter there was an extraordinary development. For Mr Darnton applied to this court for permission to appeal against the decrees nisi upon the basis that there was no valid marriage between him and Mrs Darnton capable of dissolution. His principal argument, as later formulated for his benefit, as a layman, by Ward LJ, was that on 13 December 2004 the court had failed to discharge the duty cast upon it by section 1(3) of Matrimonial Causes Act 1973 "to enquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent". Mr Darnton's assertion was that, had the judge enquired into the allegation by Mrs Darnton and indeed into his own allegation (or "averment") that they had been validly married, he would have concluded that they had not been validly married. The argument has only to be thus framed in order to reveal its absurdity. Even were section 1(3) to require enquiry into the "fact" of a marriage alleged by a party in divorce proceedings, as opposed only into the "facts" defined in section 1(2) of the Act, it is plain that, where it is apparent to the court that both parties accept that the marriage is valid and that its validity is confirmed in two expert reports, the court's "duty" under section 1(3) is already discharged even though no doubt the court retains a "power" to enquire further if it wishes to do so. Mr Darnton had never suggested to the judge on 13 December 2004 that he should go further by way of investigation into the validity of the marriage; and indeed the crux of the agreement presented to the judge was that it was no longer appropriate to do so.
9. In his proposed appeal to this court Mr Darnton took various other points. He sought, for example, to appeal against a preliminary ruling which the judge had made on 30 November 2004 that Mrs Darnton's failure to file a marriage certificate did not preclude the grant to her of a divorce. Mr Darnton's patently unsustainable challenge to that ruling was rejected by Ward LJ on 20 June 2005 in refusing permission to appeal against it. But the judge then adjourned Mr Darnton's application for permission to appeal against the decrees nisi; and the adjourned hearing took place before him and Buxton LJ on 4 October 2005. In the event that application was then also dismissed. By reference to the transcript of the proceedings on 13 December 2004, this court dismissed Mr Darnton's suggestion that he had been pressurised into accepting the compromise then presented to the court. It proceeded also to dismiss his suggestion, made by reference to the words which he had wished in vain to be included in the order, that it had not been open to the judge to do what he and Mrs Darnton had asked him to do, namely to pronounce decrees nisi of divorce without investigating the previous issue as to the validity of the marriage. In an interesting ruling on a point which is not straightforward, the court construed section 1(3) of the Act of 1973 as casting upon the court a duty to enquire, so far as it reasonably could, only into such of the "facts" set out in section 1(2) of the Act as each party was asserting. I am bound by that ruling upon the construction of the subsection; but, as I have sought to explain, it is irrelevant because, even had the judge been under a duty to enquire into the allegation of both Mr and Mrs Darnton that there was indeed a valid marriage, it is clear that in the circumstances he had sufficiently discharged it.
10. Following the refusals by this court of permission to appeal, there was a still more extraordinary development. For Mr Darnton applied to HHJ Meston that the decrees granted, and other orders made, on 13 December 2004 should be rescinded or set aside and that either Mrs Darnton's petition and his cross-petition should be dismissed or they should be re-heard. It was this application which, following a hearing on 11 January 2006 at which Mr Darnton appeared in person and counsel appeared for Mrs Darnton and the Attorney General, the judge dismissed on 22 February 2006. He did so by delivery of a written judgment set in 97 paragraphs running across more than 30 pages.
11. Mr Darnton has implied that the idea of reapplication to the judge emanated from a comment made by Ward LJ on 20 June 2005. My colleague had referred, as being an "alternative" remedy to the attempt to appeal, to the possibility of bringing a fresh action in order to set aside Mr Darnton's consent to the decrees and orders granted and made on 13 December 2004. Instead, of course, Mr Darnton's attempt to appeal proceeded as far as it could; and, by their judgments dated 4 October 2005, the judges of this court had made clear that there was no material by virtue of which Mr Darnton could escape from the consequences of the consent which he had given on 13 December 2004. There was certainly no reiteration at the end of the hearing on 4 October 2005 that Mr Darnton might appropriately re-apply to the judge. But re-apply he did.
12. Mr Darnton's main application to the judge was for him to rescind the decrees pursuant to section 9(2) of the Act of 1973. That subsection provides that, where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then after a specified time the party against whom it was granted may apply to the court and the court may make the decree absolute, rescind the decree, require further enquiry or otherwise deal with the case as it thinks fit. As the judge pointed out in his judgment, the crucial feature of the provision in section 9(2) is the failure of a party granted a decree of divorce to apply for it to be made absolute. Upon the other's application, after the specified time, the court will enquire into the failure of the person to whom the decree has been granted to apply for it to be made absolute. Is there any good reason why the decree has not been made absolute? If not, then, if the other party shows good reason for it to be made absolute, the power there resides for the court to make it absolute. Perhaps, alternatively, the other party to the decree alleges that there has been a reconciliation and seeks its rescission. In that case, depending of course also upon the response of the party to whom the decree was granted, the power there resides for the court to rescind it. In the present case there was clear reason why Mrs Darnton had not applied for the decree granted to her to be made absolute: the reason was that, once the proceedings in this court were on foot, the validity of the decree was in issue and that thereafter she was attempting to proceed with her claims for ancillary relief, prior to resolution of which it would have been dangerous for her to forfeit her financial rights as Mr Darnton's wife. It seems to me that, although its words are wide, section 9(2) provides only the most tenuous vehicle for the sort of application mounted by Mr Darnton. It may, however, be more fruitful to survey not whether section 9(2) gave the judge jurisdiction to rescind the decree but whether it could even arguably have been a case for exercise of any such jurisdiction.
13. As a basis of the judge's jurisdiction alternative to section 9(2) of the Act of 1973, Mr Darnton invoked rule 2.42(1) of the Family Proceedings Rules 1991, which provides that an application for re-hearing of a suit for divorce, where no error of the court at the hearing is alleged, should be made to a judge. In that Mr Darnton was alleging no fault on the part of the judge on 13 December 2004 beyond his failure to determine the previous issue as to the validity of the marriage, Mr Darnton was able successfully to invoke the decision of this court in Peek v Peek [1948] 2 All ER 297 to the effect that such did not amount to an "error" which precluded recourse to this sub-rule.
14. Clearly, however, Mr Darnton's preference was for rescission of the decrees and dismissal of the petition and cross-petition under section 9(2) rather than for a re-hearing of them under rule 2.42(1).
15. Amid the plethora of points pressed upon the judge and painstakingly considered by him, the central point made by Mr Darnton in support of his application was, as before, that there could be no divorce because there had been no valid marriage in that he had never been converted to Hinduism. Inevitably the judge held that it was not open to Mr Darnton to persist with this point: even if it had been possible at any time after 13 December 2004 for him to mount it before the judge, it was certainly not possible for him to do so in the light of the judgment of this court that Mr Darnton's complaints in this regard were not even arguable. Indeed Mr Darnton, who, while not a qualified lawyer, is highly intelligent and indeed a university lecturer, made to the judge the astonishing submission that he should disagree with the construction placed by this court upon section 1(3) of the Act of 1973. Inevitably the judge held that he was bound by that construction but, in paragraph 34 of his judgment, he assembled nine, in my view cogent, reasons why, even had the construction of section 1(3) been otherwise, it would have cast no duty upon the court on 13 December 2004 to go further than it did in considering whether there had been a valid marriage.
16. To this point Mr Darnton added a variety of other arguments which the judge, whether or not in the circumstances obliged to do so, chose to address. Mr Darnton, for example, raised yet again his complaint that Mrs Darnton had not filed a marriage certificate. That point was, of course, res judicata. He complained that, in subscribing to the compromise on 13 December 2004, he had been under various misapprehensions: but on 4 October 2005 this court had considered in detail, and rejected, his complaints about the course of that day. He sought to place before the judge fresh evidence that Mrs Darnton had been untruthful in relation to her premarital domicile and residence and otherwise; but the issue as to the validity of the marriage did not depend upon the court's acceptance of the word of Mrs Darnton against that of Mr Darnton and, anyway, it was far too late for that evidence to be adduced. Mr Darnton also sought to complain to the judge that, contrary to an express acceptance in his answer that he had been served with the petition, he had never properly been served with it. Of course his extensive participation in the proceedings prior to decree made any potential issue as to compliance with the technicalities of service irrelevant. Mr Darnton also invoked his human rights, in particular Articles 6 and 9 of the Convention of 1950. He contended that the proceedings until 13 December 2004 were not conducted on a level playing field in that, for example, his resources placed him beyond eligibility for public funding. Although on any view the lack of representation – and perhaps, even more importantly, the lack of firm advice – for Mr Darnton has been deeply regrettable, it is unarguable that lack of legal representation or advice in civil proceedings, whether such be at the election of the litigant or otherwise, constitutes an infringement of his rights under Article 6.
17. Mr Darnton's arguments to the judge under Article 9 form the first few of his 21 grounds of appeal to this court so it is convenient – at last and very briefly – to turn to them. Under Article 9 Mr Darnton has a right to freedom of religion. The allegation is that the decrees granted on 13 December 2004 constitute him against his will an adherent, whether present or past, of the Hindu religion and thus infringe his right under Article 9; and that the judge should have so recognised on 22 February 2006. But it was not open to Mr Darnton to take this point before the judge: he had given his free consent to the grant of the decrees on 13 December 2004 and his attempt to extricate himself from the consequences of his consent had been considered and rejected by this court at a hearing at which all his arguments were or should have been marshalled. Anyway the decrees do not force Hindu beliefs upon Mr Darnton in any way: they reflect his then acceptance of the fact that his conduct on 2 and 3 December 1992 would probably lead an Indian court to conclude that, for the purposes necessary to entry into a valid Hindu marriage, he had accepted Hindu beliefs and had not instead indulged in a cruel charade.
18. Mr Darnton would complain to this court that the judge was wrong to interpret section 1(3) of the Act of 1973 in the way in which he did. But the judge was bound to adopt the construction determined by this court in the judgment dated 4 October 2005. This court would be similarly bound by that construction. Mr Darnton's argument that the construction of section 1(3) favoured by this court is incompatible with his rights under the Convention of 1950 is impossible even to formulate, let alone to accept. Anyway, for the reasons which I have sought to give and which the judge gave, the point is entirely irrelevant.
19. Mr Darnton would complain to this court that the judge should have rescinded Mrs Darnton's decree by reference to the absence of a certificate of marriage. That point is no longer open to Mr Darnton: it met its end in this court on 20 June 2005.
20. Mr Darnton would argue that, in that, prior to his taking silk and then becoming a judge, the judge was himself standing counsel to the Queen's Proctor in family matters and so occasionally appeared on behalf of the Attorney General, he was biased, or may be taken to have had an appearance of bias, in favour of the arguments of the Attorney General. This is unarguable: in the words of Mr Amos, counsel on his behalf in these proceedings, the Attorney General is party-neutral although not necessarily issue-neutral. How can the judges past career at the Bar in the occasional service of government in family proceedings be arguably considered to compromise his impartiality as between Mr and Mrs Darnton?
21. Finally Mr Darnton would complain that it was outside the boundary of the judge's discretion to make the order for costs against Mr Darnton subject to assessment on the indemnity basis. On the contrary, my view is that the proceedings before the judge were an abuse of the process of the court; indeed that this proposed appeal is also an abuse of the process of the court; and that all Mr Darnton's points are "totally without merit". I use that phrase because Mr Darnton's conduct of these proceedings rightly led the judge to consider whether to make a civil restraint order against him pursuant to, or by analogy with, rule 3.11 of the Civil Procedure Rules 1998 and the Practice Direction supplementary thereto; and because the phrase is of significance in that context. Like the judge, I decline as yet to make such an order. Apart from anything else, the jurisdiction to make it at all in family proceedings requires attention. Nevertheless Mr Darnton will readily understand that, in any future consideration by a court as to whether to make an order against him of that character, the total absence of merit both of the application before the judge and of the application to this court today is likely to form part of the court's survey.
22. Permission is accordingly refused.

Order: B4/2006/1165 – Permission to appeal refused. Extension of time no order.

B4/2006/1166 – Permission to appeal refused.