England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2013] EWCA Civ 628

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		Neutral Citation Number: [2013] EWCA Civ 628
		Case No: B6/2014/2076

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIGH COURT OF JUSTICE PRINCIPAL REGISTRY (FAMILY DIVISION)
(HIS HONOUR JUDGE O'DWYER)

Royal Courts of Justice
Strand
London, WC2A 2LL

24 March 2015

B e f o r e :

MR JUSTICE BLAKE
____________________

Between:

	STOCKER	Applicant
	- and -
	STOCKER	Respondent

____________________

(DAR Transcript of
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____________________

The applicant appeared in person
The respondent did not attend
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE BLAKE:

This is a renewed application for permission to appeal out of time from a judgment of His Honour Judge O'Dwyer sitting in the Principal Registry of the Family Division that was handed down on 3 December 2013.

The judgment was concerned with financial relief following divorce of the parties (who I will refer to in this judgment as husband and wife, despite, of course, the fact that they no longer have that status). Judge O'Dwyer made a final order in those proceedings. Financial settlement was complicated by the fact that a number of the assets of the husband were held in a company in which the wife had been employed and over which she held a debenture and she had placed the company in liquidation. Amongst the many headaches that the judge had to deal with were the debts of the company, the value of properties in the United Kingdom and Spain, the disputed value of a boat and matters of that sort, and offsetting of debts and costs before a final conclusion could be reached.

It appears from the judgment that a final hearing of the financial remedy issue was due to be heard on 4 March 2013. At that stage, both parties were legally represented by advocates experienced in financial remedy cases in family proceedings. The advocates had identified a division of assets that was agreed in substance, but the husband's team requested some further time to finalise the drafting of an agreed order and an attempt was made to resolve two fairly minor outstanding issues. However, after 4 March 2013 matters began to unravel. The husband withdrew instructions from his legal representatives and acted for himself. He has informed me today that this was because he ran out of funds and there were collateral disputes (it seems) between him and his former legal advisers. He then raised a number of allegations against his former wife in emails; a great many of which were sent directly to the court. It is unclear from the papers before me whether formal witness statements were filed by the husband dealing with these issues, but in any event, there were numerous hearings when the case was mentioned and applications for an adjournment were made by one party and the other (it seems) on the 4^th, 5^th, 12^thand 18^th of March, the 25^th of April, the 15^th of May, the 3^rd of June and the 19^th of July. In substance, the wife was submitting, through her representatives, that the husband should show cause why the agreement for division reached by his former representatives should not be implemented. He in turn was making various assertions why the proposed division would be unfair and disproportionate; those included the contention that the wife was taking money out of the company that she was not entitled to and that the division would be unfair as it would leave him without a substantial home. It should be noted that this was a case in which there were no children in the family to be taken into consideration and the husband, in his grounds of appeal and oral submissions today, contends that a 50/50 split should have been appropriate and that it was not fair that he should have to hand over a greater proportion of his wealth.

The judge prepared a judgment for handing down, conscious of all those submissions and contentions which had been articulated between March and November 2013. There is before this court the draft judgment for hand down prior to perfection. It sets out the history of the matter, the statutory proceedings governing financial settlement, relevant case law provisions, the rules and the practice directions. The judgment addresses, as best the judge could, the various issues raised in the emails by the husband, although the degree to which they were supported by evidence is unclear. He listed the husband's complaints against the wife and nevertheless dismissed them and adopted the previous agreement as the basis for settlement. Drawing up the order did require a number of adjustments to be made and the circumstances changed and the wife gave a number of proposed undertakings in the order.

The judgment was to be handed down on 3 December when, on that occasion, the husband did not attend. He tells me that was because he was living in Spain and he thought there would be another hearing on 19 December (of which there is no reference in the papers before me) and could not afford to attend on two hearings.

There is before the court a transcript of discussions on 3 December when, as a result of a further series of emails from the husband, it seems apparent that there was going to be no cooperation in the sale of the boat and therefore some alternative mechanism for distributing the assets was discussed. On 6 December an order was drawn up and emailed to the husband at an email address; although he had to be served personally with the order which had attached a penal notice and there seemed to be two versions of the wife's undertaking, depending upon whether there was to be cooperation about the sale of the boat or not.

The appellant husband remained dissatisfied with the judgment of His Honour Judge O'Dwyer. He had lost on the substantial contentions that he had developed and he appears to have attempted to file grounds of appeal on 18 December 2013, although it does not appear that an appeal notice was completed at that time. It is unclear whether an application fee was lodged and there was some confusion as to whether he should send the notice to the Principal Registry or to this court. It subsequently transpires that on 31 December 2013 an officer of the Principal Registry realised that an appeal of this sort needs to be directed to this court and the documents that have already been sent by the husband were sent to him to his last known address in the United Kingdom on record with this court. He subsequently contends that he had left that address in mid-June of 2013 and I think he accepts that he never provided an alternative address for service and therefore remained in ignorance of the fact that his application had been disposed of in that way until matters came to light again in June 2014, some six months out of time. He contends in the written grounds of appeal that I have read that the judge's division of the assets was unjust and disproportionate and he continues to rehearse a number of the issues that were the subject of the email input into the hearing below.

On 27 October 2014 the paper application for permission to appeal was refused by Kitchin LJ, who explained that the judge had properly directed himself as to the approach to be adopted and had careful regard to the agreement that he found that the parties had reached in about April/May 2013 and concluded that the appellant had not identified any good reason why it should not be relied upon; and insofar as the agreement resulted from any departure from equal division, such departure was a reflection of the careful compromise the parties had agreed upon legal advice and having regard to the difficulties of valuing their assets. He gave other reasons why he concluded that there was no real prospect of success in the appeal and no other compelling reason why an appeal should be heard.

Today, the husband has renewed the application before me and has essentially repeated the basis of his lack of satisfaction with the judgment about the disproportionate outcome of the distribution of the assets, but has not addressed in any specific way the comments of Kitchin LJ, which explain what the issues are on this application for permission to appeal.

By CPR 52(3) (6) permission to appeal should only be granted if the proposed appeal would have a real prospect of success. That is a challenging task to meet in a case where essentially it depends upon the judge's findings of facts and the exercise of discretion within the scope of his statutory functions.

Nothing that I have read in the papers or heard from the appellant husband today suggests that the judge misdirected himself in law, failed to take material considerations into account or reached a conclusion that was not reasonably open to him on the facts as he found them to be. In those circumstances, marrying up what the husband says in his notices and oral submissions with the judge's judgment, none of those matters constitutes a basis for an appeal that has any prospect of success. Unfortunately, as so often in this particular type of litigation, everything has the appearance of the aggrieved individual unwilling to accept that in proceedings of this sort there needs to be finality of the litigation process and the judgment of the court below needs to be respected unless wrong in principle. This judgment was not wrong in principle; accordingly, I see no basis to grant permission to appeal this renewed application. It is accordingly dismissed.

Order: Application refused.