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 BRIGHTON COUNTY COURT
(HER HONOUR JUDGE COATES)

		Royal Courts of Justice Strand London, WC2
		30th January 2007

1. LORD JUSTICE SCOTT BAKER: Mr Tuckett seeks permission to appeal against various orders arising out of matrimonial ancillary relief proceedings. By his amended notice of appeal, he says he wishes to appeal, first, against the order of Judge Coates of 13th November 2006, second, the order of District Judge Gamba of 10th April 2006 and, third, part of the order of Judge Coates of 13th July 2006. In his skeleton argument at page 3, Mr Tuckett refers in particular to Judge Coates' order of 13th November 2006; paragraph 6 of her order of 13th July 2006; District Judge Merrick's order of 8th July 2005, as requested in his skeleton argument of 13th July 2006; and a stay of execution of the order of District Judge Gamba dated 10th April 2006. As will be apparent, some of those orders are of some antiquity and the husband is out of time in respect of appealing against them, and therefore requires additionally an extension of time.
2. Mr Tuckett has an ancillary application of very recent date, asking that he be allowed to admit in evidence the documents referred to in parts A, B, C and D attached to his notice. Part A comprises transcripts of various proceedings; Part B comprises various reports and valuations of an expert nature; Part C comprises evidence relating to his mental illness; and Part D comprises two statements of his own regarding his business income which he has from a bed and breakfast enterprise, and the other statement relates to his former wife's family.
3. I shall refer to Mr Tuckett as "the husband", notwithstanding that he is no longer married to Mrs Tuckett, to whom I shall refer as "the wife". They were married in August 1996 and a decree nisi was pronounced following a defended divorce on 8th September 2005. That has now been made absolute. There are two children, W who I think is just 11 and P who is 8, who lived with the wife. The parties separated in December 2004. The wife moved to a flat in Haywards Heath which she had owned before she was married, and the husband stayed in the former matrimonial home in Henley-on-Thames.
4. On 10th April 2006 District Judge Gamba made an order in the ancillary relief proceedings. He had essentially to divide up the assets so that each party could be housed. The flat in Haywards Heath was too small for the wife to remain in with the children, and the District Judge assessed her housing needs as £345,000. Finding that sum involved selling the former matrimonial home, where the husband was (and indeed still is) living and running a bed and breakfast business. The District Judge ordered its sale, with £223,000 going to the wife and £255,000 going to the husband. If the house sold for more than £700,000 (I would interpolate that there was a mortgage on it), the balance was to be divided between the husband and the wife 50/50.
5. The husband was dissatisfied with the District Judge's order and appealed to Her Honour Judge Coates, who dismissed the appeal on 13th November 2006. The husband is still dissatisfied and seeks to appeal to this court. Although he seeks to appeal against District Judge Gamba's order of 10th April, any appeal against that order was to Judge Coates and indeed has been dealt with by her. So I think the reality is that he is trying to appeal against Judge Coates' decision that upheld the decision of District Judge Gamba.
6. The real cause of the husband's dissatisfaction lies in the steps that District Judge Gamba took (or perhaps more particularly did not take) leading up to the conclusion to which I have referred. Before making a property adjustment order, it is necessary for the court to form an assessment of what assets the parties have. The wife has a minority shareholding in a dry-cleaning company, the main function of which is running a dry-cleaning business from various different premises.
7. For reasons with which family practitioners are familiar, minority shareholdings are notoriously difficult to value in family cases. The District Judge relied on the valuation of a Mr Patel, who thought a prudent investor might offer £100,000 for the business, and he said that the wife's shareholding should be discounted by 60%. The wife said that her siblings, who were the other shareholders in the business, had no desire to buy her shares. Mr Patel's calculation was made on three bases: net assets, net earnings and a dividend basis. Having accepted his evidence and the evidence of the wife that her siblings did not wish to buy her shares, and that there was no other realistic way of realising the value of the shares, the judge valued the wife's shares at £54,666. The husband submits that that is an undervaluation. He claims that he was disadvantaged by not having either his own expert or a court-appointed joint independent expert. He felt that Mr Patel, as the company accountant, was far too close to matters for him to give a fair and dispassionate report.
8. What the husband seems to me to be complaining about essentially arises out of case management. Wilson LJ, when this case had earlier been to the Court of Appeal, covered the question of expert evidence, and I do not repeat what he said on that occasion. A great deal of money can be spent on fruitless expert evidence in relation to the valuation of minority shareholdings in matrimonial financial proceedings. The court's primary interest is in the realisable assets, which the judge found did not realistically include the wife's shareholding.
9. The circumstances in which the District Judge proceeded on Mr Patel's evidence alone are well covered in the earlier judgments, which I have read and which I will not repeat. In my judgment the District Judge was not in error for proceeding on the basis that he did, still less was Judge Coates in error for refusing to interfere with the District Judge's decision or to accept any fresh evidence.
10. The husband also complains about the valuation of some land purchased by the wife's parents (or in one instance I think late parent), in respect of which the wife, along with others, has a beneficial interest. If this land can be developed it has a very significant value. But the evidence before the District Judge was that there is no prospect of development in the foreseeable future. In my judgment, the District Judge again was entitled to proceed on the basis that he did and there are no grounds for saying that Judge Coates was wrong in refusing to interfere.
11. The next main point taken by the husband is that the District Judge took inadequate account of his ill health. Since the year 2000 he has suffered from bipolar affective disorder, which makes him prone to periods of depression and inability to cope. Both the District Judge and the Circuit Judge were aware that the husband suffered from this condition. The complaint from the husband is that he ought to be able to put now, and should have been able to put before, more evidence before the lower courts to explain the position in more detail.
12. However, the court is well able to see the extent to which the husband has engaged in these proceedings. For example, there is before the court today a skeleton argument running to 44 pages, with a supplemental skeleton argument running to another six pages. It is plain that the husband has been into this case on numerous occasions with the greatest care and detail. He submits that his condition changes from time to time and there are periods when he is unable to cope, and that that should be taken into account when considering permission to appeal out of time and his not having proceeded as expeditiously as he should have. Again, it seems to me that these are matters that the court on the earlier occasions had fully in mind.
13. One of the directions made by Judge Coates on 13th July, and of which the husband now complains, is that he was only to be permitted to rely at his forthcoming appeal on grounds to be found within his skeleton argument. It seems to me that this was a perfectly sound and sensible case management decision for the judge to make, particularly in the light of the history of this case, where it seems to me that the husband takes every opportunity to leave no stone unturned and to invite the court to consider and rule upon every conceivable issue.
14. As I have mentioned, the husband's skeleton argument runs to 44 pages and 183 paragraphs. He submits that he has a number of human rights arguments, essentially that he has never had a fair hearing. I reject these contentions entirely. It seems to me that these proceedings have now become an obsession with him. His efforts to continue to pursue them are doing no service to himself, to his former wife, and most importantly to his children. A vast amount of money has been spent on the cost of this litigation. It is quite disproportionate to the available assets. In my judgment, Judge Coates, having given her reasons in a full and careful judgment, was fully entitled, indeed had no other option, but to reject his appeal from the District Judge.
15. As far as this court is concerned, any appeal now would be a second appeal. As the law makes clear, in order for a second appeal to be allowed to go forward, it is necessary for the litigant seeking to appeal to persuade the court that some important point of law or practice arises, or that there is some other good reason for allowing an appeal to go forward. In my judgment, that criterion is not met and in the circumstances all the present applications are refused.
16. In so far as there are applications for an extension of time, they too are refused and the application to adduce the fresh evidence to which I have referred is likewise refused.

ORDER: Applications for permission to appeal, an extension of time and permission to adduce fresh evidence refused; a copy of the transcript of this judgment today to be prepared at public expense and a copy made available to the husband and the judge.

(Order not part of approved judgment)