England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Portsmouth County Court
His Honour Judge Marston
PO07/C00582

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/05/2010

Lord Justice Wall :

1. This is an application by Mr. SW for permission to appeal against an order made by HH Judge Marston sitting in the Portsmouth County Court on 9 November 2009. This is the second time that this case has reached this court, and in order to prevent needless repetition, I propose to refer to the earlier hearing before Thorpe and Elias LJJ and myself on 20 May 2009, which resulted in reserved judgments handed down on 1 July 2009 under the neutral citation number [2009] EWCA Civ 644. I incorporate those judgments into this.
2. I heard this application for permission orally last term. prior to my appointment as President of the Family Division on April 13 2010. When I heard the application I had not had the opportunity to read the voluminous documentation produced by the applicant and his McKenzie friend. I therefore decided that the best course was to hear oral argument and to reserve judgment. This is what I have done. I would like to apologise to the applicant and to his McKenzie friend for the fact that due to a combination of the Easter vacation and intense pressure of other work I have been unable to look at the papers again until very recently.
3. I gave the leading judgment in the previous appeal, and Thorpe and Elias LJJ agreed with me. The case has since been reported as Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and as SW v Portsmouth City Council, Re W (children) (concurrent care and criminal proceedings) [2009] 3 FCR 1. As my judgment in the earlier appeal was written anonymously, and the case has been reported under initials, I propose to maintain the reporting restrictions imposed on the case, and this judgment will also be written anonymously.
4. The order made by the judge on 9 November 2009 does not identify the order which Mr. W seeks permission to appeal, although it refuses him permission to do so. I do, however, have a judgment by Judge Marston dated 15 September 2009, which, I am told, was not formally handed down until 9 November. That judgment reports that following the fact-finding hearing in October 2008 which was the subject of the first appeal to this court, Mr. W stood his trial in the criminal court and was acquitted of raping his step-daughter ISW. This, of course, is something which Judge Marston, in the fact-finding hearing to which I have referred, found that he had done.
5. By the time the first appeal was heard in this court, the criminal proceedings had been concluded, and this court was aware of Mr. W's acquittal in the criminal proceedings. Although this court was critical of the judge's apparent ignorance, when conducting his fact finding hearing, of the stage the criminal proceedings had reached ; (1) it did not overturn the judge's findings because the father had been acquitted in the criminal court; (2) it did not criticise the judge for his refusal to secure the attendance of ISW to give evidence in the care proceedings; and (3) it did not accede to the argument that the judge should have adjourned the care proceedings to abide the outcome of the criminal trial.
6. Mr. W, following his acquittal in the Crown Court, applied to Judge Marston, as the judge recorded it, for "leave to review or set aside my judgment in the light of the acquittal if an appeal was not successful". The judge referred to page 1820 of the Family Court Practice for 2009 (the Red Book) and Order 37 rule 1 of the County Court Rules.
7. The relevant parts of Order 37 rule 1 read as follows: -

(1) In any proceedings tried without a jury, the judge shall have power on application to order a rehearing where no error of the court at the hearing is alleged.

(2) Unless the court otherwise orders, any application under paragraph (1) shall be made to the judge by whom the proceedings were tried.

(3) A rehearing may be ordered on any question without interfering with the finding or decision or any other question …

The passage in the Red Book reads as follows:-

This rule provides an exception to the provision of County Courts Act 1984, s 70, which provides that every judgment or order of the county court shall be treated as final and conclusive between the parties. It gives the county court power to review its own decision where no error of the court is alleged. This is wider than the powers available to the High Court under Supreme Court Act 1981, s 17, which in effect requires an application for a new trial to made to the Court of Appeal under CPR 1998, r 52.10(2)(c). A judge, or district judge (r 1(4)), may order a rehearing. This means that the judge or district judge will consider the evidence at the original hearing together with the fresh evidence. Where the complaint is that a party was not present at the hearing an application should be made under r 2. An order made by consent may be varied under the terms of this rule (and FPR 1991, r 8.1) – see under FPR 1991, r 8.1. This provision, whilst being the more appropriate course, does not preclude an appeal (see O'Connor v Din [1997] 1 FLR 226).

No error of the court—an application for a rehearing may be made under this rule where no error of the court is alleged. The test to be applied is "Is the allegation which is made against the decision an allegation that the court went wrong on the materials before it, or is it an allegation that the court went wrong because evidence on a vital matter was concealed from the court?" (Peek v Peek [1948] 2 All ER 297). If the allegation is that the court went wrong (ie an error of the court) on the information before it, the remedy is an appeal. If material on a vital matter was not before the court, an application should be made under this rule. The most common grounds for an application are:

(a)  where there has been default or misconduct by an officer of the court or a party;

(b)  where fresh evidence has been discovered or the judgment has been obtained by fraud;

(c)  where there has been an irregularity during the course of the trial, eg during speeches the judge was misled or there was perjury or a mistake by a witness;

(d)  where there is an allegation of material non-disclosure (see eg Livesey (formerly Jenkins) v Jenkins 1985] FLR 813, HL; T v T (Consent Order: Procedure to Set Aside) [1996] 2 FLR 640).

8. The judge then commented: -

… The Order gives the Court power to review its own decision where no error of the Court is alleged. Here, fundamentally, what Mr W was relying upon was the fact that he was found not guilty in the Criminal Court; that in itself of course does not provide grounds for re-hearing or for setting aside an Order of the Civil Court's findings because of the difference in standard of proof. But here Mr W has asked me to look very carefully at what ISW said in the criminal court which is of course something that I knew nothing about in the handing down of Judgment, because he says that ISW's evidence is different to the evidence which I had in the various interviews and videos and so on that I had before me, having ruled that ISW was not to give evidence in the Care Proceedings. The effect of the new evidence from ISW would be, it was said, to destroy the credibility of her evidence that I had and therefore mean that I had to set the original Judgment aside.

9. The judge then went on: -

The test I have to apply to is "Is the allegation which is made against the decision, an allegation in which the Court went wrong on the material before it or is it an allegation that the Court went wrong because evidence of a vital matter was concealed from the Court: Peek v Peek [1948] 2 All ER 297(wrongly transcribed as Pete v Pete). By analogy "concealed from the Court" I take this also to be not available to the Court at that time through no fault of any of the parties. This means that I have to conduct, in my view, a narrow enquiry into what, if any, new evidence is relied upon. What I do not do is to go back and look again at the information that I had before me because the remedy for that is to go to the Court of Appeal and that has already happened…..

10. Having read the 24 page submission prepared by Mr W's McKenzie friend Mr. O'Connell; and having concluded that (despite the fact that Mr W was obliged to represent himself in the care proceedings) the care proceedings had been fair, the judge continued: -

Mr W then seeks to rely upon non-disclosure of various documents in order to convince me that the Local Authority has conducted the case in such a way as to actively try to conceal matters from me. I reject this part of the Application. There are some 8 files of documents before me. Everything that I have ordered to be disclosed has, so far as I can see, been disclosed in this case and there is no material before me now save for the Criminal trial that was not before me at the Finding of Fact hearing which finished in October of last year. Mr Morgan, for the Local Authority, was I think right to express his concern that this was moving back to the conspiracy theories that Mr W had set out in the main trial as one of the matters that he had to deal with. As Mr O'Connell put it in his final submission "Mr W wants to re-visit the points that he missed in the other hearing". That is not the purpose of this hearing.

Having considered ISW's behaviour and the question of issue estoppel, the judge says: -

I now turn to what seems to me to be the real question in this case, which is whether if I had had the transcript of ISW's evidence before me in the Criminal trial, I would have come to a different conclusion to that which I came to.

11. The judge comments on the fact that there is a full transcript of ISW's evidence at the criminal trial in the bundle, and he goes on to point out a number of differences in what ISW said under cross-examination as opposed to what she had said in interview. He refers to comments made by the judge in the criminal trial and refers to that judge's summing up to the jury. He concluded that the discrepancies in ISW's evidence were "minor" and that had he had the transcript before him in the care proceedings he would have taken the view that ISW had "maintained the main bulk of her evidence". The judge thus concludes: -

I would then have taken that evidence and set it in context to everything else that I had heard in the case and I am bound to say that I am convinced that I would have come to the same decision with the same process of reasoning that I set out in my Judgment.

In all of the circumstances here the evidence that was put forward which was not available to me that is the evidence that ISW gave in the Crown Court would not have changed the decision that I came to. The vast preponderance of other matters that put to me on Mr W's behalf are ones that related to the original hearing and are not relevant to this Application. In those circumstances, the Application for me to set aside my original Judgment and provide for a re-hearing is dismissed.

The judge's reliance on Peek v Peek [1948] 2 All ER 297 (wrongly transcribed as "Pete") ( Peek).

12. Order 37 rule 1(1) states in terms that the judge has the power on application to order a rehearing where no error of the court at the hearing is alleged. Peek is an example of that power being exercised. There was no criticism in that case of the judge for reaching the decision he had: the question was whether or not he would have reached a different decision had the material subsequently made available been available to him at the hearing. This court, in Peek decided that it might well have done, and agreed that the Divisional Court had the power to order a rehearing.
13. In the instant case, the judge took the view that had he had the additional material, he would have reached the same conclusion. The two critical questions are; (1) was that the correct approach? and (2) if it was, was it open to him to reach the conclusion he did?

The attack on the judge's decision

14. For the applicant, it is argued, firstly, that the judge was wrong to follow Peek. I think there is some force in that submission, although it is difficult to criticise the judge when he is hearing an application brought under Order 37 rule 1 and is following the guidance set out in the Red Book. As the applicant is astute to point out, however, the leading case on the question of re-opening issues is children's case is in the field of issue estoppel and remains that of Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285 decided by Hale J (as she then was).
15. In essence, Hale J decided that the question of issue estoppel had little, if any role to play in proceedings relating to children. She acknowledged, however, that there was a public interest in bringing litigation to an end; she also pointed out that any delay in determining the proceedings was likely to be prejudicial to the welfare of the children concerned; she made it clear that the welfare of any child was unlikely to be served by relying on a determination which might turn out to be erroneous, and she was clear that the court's discretion to re-investigate must be applied so as to work justice and not injustice.
16. Above all, however, she stated: -

…… the court is bound to want to consider whether there is any reason to think that a hearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different Judges might on occasions reach different conclusion upon the same evidence. No doubt we would all be reluctant to allow a matter to be re-litigated on that basis alone. The court will want to know (a) whether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way; (b) if so, whether there is any ground upon the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.

17. A further factor, which has only recently occurred, is of course, the decision of the Supreme Court in Re W (children) (abuse: oral evidence) [2010] UKSC 12. [2010] 1 FCR 615. In that case, the Supreme Court allowed an appeal from the Court of Appeal (myself, Wilson and Rimer LJJ) in which we had upheld a circuit judge's decision not to insist that an alleged child victim of abuse be called to give evidence in care proceedings. The Supreme Court decided, in principle, that the presumption against a child giving evidence was irreconcilable with ECHR Article 6, and invited the judger to reconsider her decision that the child should not give evidence. (My understanding is that she has done do and reached the same conclusion). I mention this case, not because I think that it affects the outcome of this application, but because it represents a development in the law which was not open to the judge when the heard the case.

Discussion

18. The remainder of the applicant's grounds of appeal seem to me to me a set of variations on the same theme. Because, it is argued, the judge applied the wrong approach, he could not have reached the conclusion he did. I reject out of hand the allegation that the judge approached the case with a closed mind. This is a highly worrying case with, as this court found, several unsatisfactory features.
19. I have, however, come to the very clear conclusion that the judge, despite the applicant's strong views, was entitled, having considered all the fresh material. to come to the same conclusion on the critical issue; namely if he had known the outcome of the criminal trial, and if he had had the transcript of ISW's evidence in the criminal trial before him.
20. Whether or not the judge adopted the right approach, it seems to me that he has considered the question before him fully and fairly. He has reached a conclusion on it. In my judgment, that was a conclusion which was open to him, and it follows that this court will not interfere with his decision. I remind myself, and repeat, what I said in paragraph 81 of the judgment which I gave on 1 July 2007.
21. These proceedings have already gone on for a very long time. They must be resolved. Although I do not encourage it, the fact that the doctrine of issue estoppel does not apply means that the judge will be able to consider the ultimate outcome on all the material available to him, and if the applicant has fresh evidence to place before the judge. the judge will be duty bound to consider it.
22. This application must, however, be refused.