COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Her Honour Judge Black sitting in the
Brighton County Court on 18th March 2008
Strand, London, WC2A 2LL
B e f o r e :
|- and -
in an earlier case, so Mr Blooman's case was reserved)
Hearing date: 27th November 2009
Crown Copyright ©
Lord Justice Wall:
55 Second appeals
(1) Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal 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.
These provisions are reproduced in rule 52.13 of the Civil Procedure Rules 1998 (CPR).
(6) Permission to appeal may be given only where
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.
The hearing before District Judge Merrick
At 16.13 on 21 March 2006, Mrs. Blooman's solicitors wrote by FAX indicating that the contents had gone, been disposed of by Mrs. Blooman, never agreed or notified to Mr Blooman and were of negligible value. It contained an entirely false allegation that Mr. Blooman had taken contents of substantial value. It then goes on to say that they will not release a signed transfer of the Florida property. Mr. Blooman had not asked for this. Mrs. Blooman's solicitors have failed to understand the issues between the parties and misread correspondence and documents.
Why are we here? Mrs. Blooman's solicitors have failed to provide definitive information about which terms of the amended draft consent order are agreed, despite several requests in writing, for them to do so. Mrs. Blooman's solicitors have incorrectly asserted that Mr. Blooman is trying to change the agreement accorded on 17 January 2006 whereas by their draft document of 24th January 2006 it was they who sought to make a unilateral declaration.
First of all there is the question of the agreementMr. Blooman's case is that the contents of the property were not agreed. They were not part of the discussions. As far as he was concerned they remained still to be dealt with. He says they were worth quite a lot of money, some £20,000 and that they were to be dealt with. He accepts the other terms of the agreement, but that the contents were not part of the deal.
122. I have to say that I find it almost unforgivable that these matters were not raised at the FDR 20,000. He may have been bit optimistic but it perhaps could have been a significant sum in the context of her personal position.
124 There is not much point in having an FDR and leaving a whole area of nightmare for the parties to be arguing about and back in court. The object is to resolve it all.
125 If nothing is raised one is entitled to assume that there is not an issue. It is mischievous to find oneself at some time afterwards dealing with proceedings about ownership of chattels. It really is the worse scenario (sic).
129 can well understand Mr. Blooman's grief as it were, of what he perceives as being most unfair at the negotiations. It sadly is not his fault. I do not blame him for anything that happened at the hearing. He had lawyers there to help him. He should have been able to rely on them.
Mr Blooman's application to vary the order for periodical payments
The hearing before Her Honour Judge Black
(a) there being no final hearing (with attendant additional expense) and
(b) there be a time limit on the obligation for him to make periodical payments to Mrs. Blooman.
(a) there had been no fraud or mistake to warrant setting aside the order. Any mistake claimed was really a claim that he received bad legal advice (paragraph 90);
(b) there had been no material non-disclosure at best any matter not disclosed at the time of the January agreement was known by the time of the March hearing (paragraph 91);
(c) there had been no new event taking place since the making of the order invalidating the basis or fundamental assumption on which the order was made (paragraph 92) [ I interpolate: this is a reference to Barder v Calouri as to which see below];
(d) the order remains executory because Mr Blooman has not complied with it but the basis of the order has not fundamentally changed and so it is not a case in which the court should refuse to enforce the order or consider making a fresh order for ancillary relief (paragraph 93)
(e) there was no duress or undue influence which would warrant the court interfering with the agreement (paragraph 97 on page 31).
Discussion: the position as at the date of the hearing before Judge Black
The decree absolute
The events of 13 January 2009.
31 Variation, discharge, etc, of certain orders for financial relief
(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section .. the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.
(2) This section applies to the following orders [under this Part of this Act], that is to say
(d) any order made by virtue of section 23(3)(c) or 27(7)(b) above (provision for payment of a lump sum by instalments).