England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS JUSTICE BLACK)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th June 2008

Lord Justice Wall:

1. This is a case which in my judgment does not show the family justice system in a particularly good light. At the same time it seems to me a case which turns exclusively on its highly unusual facts and, in my view, is not a precedent for anything nor should it be treated by the profession as such. I have, however, reached a very clear view which I will now express. As both Mr and Mrs Zeiderman are in person before us, I will direct that a copy of this judgment be transcribed at public expense and made available to them both, but I have come to the clear view that there needs to be a rehearing of this matter, and in those circumstances, consistent with that view, I propose to say as little as possible about the facts or the merits.
2. We have before us an application by Mr Brian Zeiderman for permission to appeal against an order made by Black J as long ago as 25 January 2007. Black J's order, however, was itself made on appeal from an order made by District Judge Segal, sitting in the Principal Registry of the Family Division on 7 June 2006, so now more than two years ago. The case is what we continue to call "ancillary relief" following the breakdown of the parties' marriage. We were, however, told today that the decree nisi, which appears to have been granted on 4 July 2005, has still not been made absolute. That is not a matter which is within our power but it itself, in my judgment, casts some doubt on the jurisdiction on the district judge to make the order which he did, or, to put the matter more accurately, whether or not the order of the district judge has properly taken effect.
3. The district judge directed that Mr Zeiderman should transfer the former matrimonial home to Mrs Zeiderman and he also ordered Mr Zeiderman to pay her periodical payments at the rate of £20,000 a year. On Mr Zeiderman's case, the former matrimonial home was the only substantial capital asset of the parties, and £20,000 represented approximately 50% of his net income after all deductions.
4. The district judge felt able to make these orders principally because he did not believe Mr Zeiderman's evidence. One particular aspect is of critical importance in this respect. The district judge accepted Mrs Zeiderman's case about a property which had previously belonged to Mr Zeiderman's parents. This is a property at 24 Glenham Drive, Gants Hill in Essex, and following the death of Mr Zeiderman's father in May 1991 this property, including his mother's beneficial interest in it, had been transferred into the name of his sister-in-law. Mr Zeiderman's case was that this property – and, following its sale, the proceeds of sale of it -- were nothing to do with him. However, Mrs Zeiderman believed -- although there was no objective basis for her belief apart from her profound mistrust of her former husband -- that once the ancillary relief proceedings had been concluded, Mr Zeiderman would receive a half share of the proceeds of sale of the property. Indeed, Mrs Zeiderman in argument this morning before us appeared to indicate that he had already done so.
5. Equally, Mrs Zeiderman did not believe, and made it clear that she did not believe, that Mr Zeiderman had been frank in the disclosure of his income, and contended before the district judge that he was in receipt of income substantially in excess of that which he asserted. Once again the district judge seems to have accepted and acted upon her belief -- hence what is, on any view, his undoubtedly high award of periodical payments.
6. Black J dismissed Mr Zeiderman's appeal from the order made by the district judge. Furthermore, in a preliminary judgment which Mr Zeiderman took some time to produce, and which he may have had difficulty in getting, Black J also refused Mr Zeiderman permission to adduce evidence from his sister-in-law (about 24 Glenham Drive) and from his then employer, Mr Hutt (about his earnings)..
7. It follows from all this, of course, that this is a case to which section 55(1) of the Access to Justice Act 1999 and rule 53.13(2) of the Civil Procedure Rules apply. Thus in addition to overcoming the fact this application for permission to appeal is substantially out of time and the appeal is now somewhat stale, Mr Zeiderman has to persuade us that it raises an important point of principle or practice or that there is some other compelling reason for this court to hear his appeal and deal with it.
8. The history of the application in this court is also not straightforward. The application first came before my Lord, Ward LJ on 2 October 2007. At that point, a copy of Black J's substantive judgment was not available and Mr Zeiderman was directed to produce a copy of it. It is, however, apparent that Ward LJ's judgment adjourning the application identified accurately the key issues at the heart of his appeal. The judgment has been transcribed and I need not read it in detail. However, the Lord Justice rightly pointed out that 24 Glenham Drive had belonged to Mr Zeiderman's father and mother, had been transferred back in 1991 and that a Deed of Family Arrangement had been made in 1992. This was not an asset belonging to Mr Zeiderman and, as the Lord Justice put it, the district judge seems to have assumed that he, by his parents not by him (and the transactions in question were made back in 1991/2), had made transfers of assets in order to defeat his wife's claim. As the Lord Justice put it, one might have thought that the explanation that he could call on his sister-in-law for his half share was "a bit flimsy".
9. Ward LJ also pointed out that Black J had refused Mr Zeiderman permission to adduce evidence from his sister-in-law; and at that point the judgment in which the learned judge had refused that permission was not available and Mr Zeiderman was directed to get it. Furthermore, the Lord Justice expressed some concern at the fact that the district judge appears to have placed heavy reliance on conduct within section 25(2)(g) of the Matrimonial Causes Act 1973 and suggested it might be arguable that the order was in any event a harsh conclusion which might need to be reviewed.
10. When the matter came before my Lords, Thorpe and Wilson LJJ, on 24 April 2008, they further adjourned it to an inter partes hearing and in his judgment Thorpe LJ made very much the same point. Indeed, Thorpe LJ went out of his way to examine the order of the district judge and the evidential basis upon which the district judge had made it. In relation to the parents' property, Thorpe LJ expressed some considerable concern that the district judge had made a finding on what was not evidence but simply on a different belief asserted on behalf of Mrs Zeiderman. He described this attempt to make proof of a concealed asset as being "extremely weak, amounting to no more than 'I assume that'". .
11. Thorpe LJ therefore expressed a fundamental anxiety about the district judge's order and whether the district judge had been entitled to reach the conclusion which he did. Thorpe LJ, however, did not criticise Black J for refusing to entertain fresh evidence on the point of the house, taking the view that that was essentially a matter of discretion. However, he ended his judgment with a wise entreaty to the parties to attempt to mediate or discuss the outcome which the district judge had achieved on the basis that there may well need to be some adjustment to it in the light of a proper approach to the application for ancillary relief.
12. In my judgment, having myself read the papers carefully and listened to argument this morning, I have come to the conclusion that there is considerable force in the observations made by Ward and Thorpe LJJ and Wilson LJ's agreement with them. All three Lords Justices are of course family experts sitting in this court.
13. Most unfortunately, however, it appears either that this court's decision made by Thorpe and Wilson LJJ to put the matter over did not reach the district judge; alternatively, the district judge appears to have ignored it, because on 20 May 2008, which was due to be the hearing of an application by Mr Zeiderman to vary the order for periodical payments, Mr Zeiderman did not attend. There is evidence that he informed the court (correctly, that Thorpe and Wilson LJJ had put the matter back and there was not be a hearing on 20 May. However, the district judge seems to have proceeded and somehow or other appears to have taken the view that he had jurisdiction to strike out the notice of appeal from Black J. He also made an order that the documents in relation to the transfer of the property at 24 Glenham Drive should be signed by a district judge of the Principal Registry other than himself. Speaking for myself, it seems to me most unfortunate that the district judge should have thought it appropriate to make orders of that kind on 20 May, and in my judgment they should undoubtedly be stayed until such time as the matter has been reheard.
14. So I return to my conclusion and my reasons for reaching it, namely that \Mrs Zeiderman's application does need to be reheard. In my judgment, in addition to the anxieties expressed by Ward, Thorpe and Wilson LJJ, I have to say that, as I read it, the judgment of the district judge is open to a number of serious criticisms.
15. For example, it places a very heavy emphasis on matrimonial misconduct on the part of Mr Zeiderman. The district judge decided the application after the decision of the House of Lords in Miller v Miller [2006] 1 FLR 1201/2. In that case, Lord Nicholls of Birkenhead had made it very clear that it was only those specific aspects of conduct which it was inequitable to disregard that should be considered in the context of ancillary relief. The district judge begins his judgment by pointing out that Mrs Zeiderman's statement reads more like a petition for divorce based on unreasonable behaviour. He then proceeds to set out -I think it is 15 - allegations of conduct and states that "arguably all this adds up to conduct that it would be inequitable to disregard". In my judgment it must be highly doubtful that this was the right approach.
16. Equally it must be doubtful as to whether or not it was appropriate to deal with individual aspects of conduct during the course of the marriage which, as I read them, had frankly no bearing on financial matters and only go to issues of credibility.
17. In my judgment, therefore, the district judge was arguably over-influenced by his perception of Mr Zeiderman, although of course he was entitled to form a view about him. However, my principal anxiety about the judgment is that which has been expressed by my colleagues and which anxiety I share, namely that the district judge appears to have made a property adjustment order, not on the basis of evidence but on the basis of an assumption and a belief, and in my judgment that is not a satisfactory basis on which to proceed.
18. Furthermore it does seem to me, with great respect to her, that, given the importance of the issue in the case, Black J should have admitted the evidence produced by Mr Zeiderman by his sister-in-law. Rule 8.1(3) of the Family Proceedings Rules provides, as Black J herself pointed out, that the appeal shall be limited to a review of the decision or order of the district judge unless the court considers in the circumstances of the case it would be in the interests of justice to hold a rehearing; and the rule goes on to say:

"Oral evidence or evidence which was not before the district judge may be admitted if in all the circumstances of the case it would be in the interests of justice to do so, irrespective of whether the appeal be by way of review or rehearing."

19. Black J excluded the evidence on the basis of the well-known decision of this court in Ladd v Marshall but, in my judgment, even applying the principles set out as they have been enunciated by this court in the case of Cordle v Cordle [2002] 1 FLR 214, in my judgment the issue in question was of the highest relevance, indeed at the heart of the case. It was necessary to do justice to the case for it to be resolved, and although Ladd v Marshall is a persuasive authority, it is not one which is automatically followed in family matters, as indeed Thorpe LJ himself pointed out in paragraph 32 of Cordle itself.
20. All these anxieties, therefore, lead me to the conclusion that it is indeed arguable, that the district judge made an inappropriate order in relation to both income and capital. In the circumstances I have described it seems to me that his approach can be criticised, and that Black J, particularly in relation to the question of the transfer of 24, Glenham Drive, should not have simply approved the district judge's exercise of discretion but should have herself reinvestigated to a greater extent than she did.
21. In these circumstances I remain with the anxiety that the result achieved in this case may be wrong and in my judgment justice requires that there be a re-hearing before a different tribunal in order to see what the correct outcome of the case should be. At the end of the case, therefore, despite both the delay which has occurred and District Judge Segal's findings about Mr Zeiderman's credibility I am left with a sense of unease about the result. In my judgment, my doubts about both the justice of the ultimate outcome and the manner in which the conclusions were reached by the district judge are sufficient to bring this application within section 55(1) of the Access to Justice Act and the CPR and thus to constitute a compelling reason for this court to grant permission, to allow the appeal and to direct a re-hearing of Mrs Zeiderman's application for ancillary relief.
22. The critical question, therefore, is before whom the re-hearing should take place. It is clearly a matter that should take place as swiftly as possible. Mrs Zeiderman has this morning come before us and made clear the difficulties financially in which she currently finds herself. Both parties need to know what the future of the former matrimonial home will be and, in particular, whether or not Mr Zeiderman is going to receive any part of it, either immediately or as a deferred interest.
23. In my judgment this is not a High Court case. It is a county court case. At the same time, to remit it to a district judge other than District Judge Segal may well simply be to invite a round of further appeals. I therefore would propose, speaking for myself, that the re-hearing in relation to both capital and income should be listed for directions and then allocation at the earliest possible opportunity before the Senior District Judge. He can then decide whether he should take the case himself or should allocate it, the options for allocation of course including allocation to a specialist circuit judge, of whom there are a number sitting in this building.
24. In my judgment, therefore, I would grant permission to appeal. I would allow the appeal. I would set aside the orders made by the district judge and Black J and I would direct a re-hearing of Mrs Zeiderman's application for ancillary relief before the Senior District Judge or as he may allocate. I would also order that an application for directions as to allocation and as to the manner in which the case should be conducted should be listed before the Senior District Judge at the earliest opportunity.
25. I simply end by repeating the wise words of Thorpe LJ. There is still time for negotiation, mediation and compromise. I have no doubt at all the costs of this case already are seriously disproportionate to the issues that are involved and it may well be that an agreement between the parties, were such a thing possible, would obviate the expenditure of further costs. Having heard Mrs Zeiderman this morning I have to say I think it unlikely that compromise could be achieved but nonetheless that was what Thorpe LJ said and I respectfully agree with him.
26. I would, therefore, propose be the outcome I have set out..

Sir Peter Gibson:

27. I fully share the anxieties which my Lord has expressed about the decision of the district judge and the refusal by Black J to admit fresh evidence and I concur in the orders which my Lord has proposed for the disposition of this appeal and the further hearings to follow.

Order: Application allowed; appeal allowed