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Owens v Owens [2005] EWCA Civ 1275

Application for permission to appeal against order for ancillary relief refused despite non-disclosure.

Owens v Owens [2005] EWCA Civ 1275

Court of Appeal: Wall LJ (10 October 2005)

Application for permission to appeal against order for ancillary relief refused despite non-disclosure.

This was an application by the husband for permission to appeal against an order made in July 2005, by which the judge dismissed two appeals from orders of the district judge made earlier in the year.

In the original divorce proceedings between the husband and wife, the district judge had ordered a clean break in February 2004, with the parties' former matrimonial home being sold and the proceeds divided equally between them. The husband's appeal against the order for ancillary relief was dismissed on the basis that the marriage had been of some length, and the equal division of what was the only available asset was, on the face of the facts, unexceptional.

On the husband's application to the Court of Appeal for permission to appeal in November 2004, he was told that section 55(1) of the Access to Justice Act 1999 applied to his application; it appeared that there was no point of principle involved and no other substantial reason why the court should entertain the application, and permission was refused. At that hearing, the husband advanced an argument that the district judge's order from February 2004 had been obtained by fraud or dishonesty on his former wife's part. He was told that, if he wished to attack the order on that basis, his proper remedy was to go back to the district judge and apply to have the order set aside on the basis of non-disclosure or fraud.

The husband did go back to the district judge, and with some justification, as the district judge found that the former wife had not been full, frank and clear in the disclosure which she had given to the court.

On this appeal, the court had to consider what were the consequences of the non-disclosure, and referred to the judgment of Lord Brandon in Livesey (formerly Jenkins) v Jenkins [1985] FLR 813, which made it clear that not every application to set aside on the grounds of non-disclosure would succeed.

Held, refusing the application, that there had clearly been non-disclosure, but the non-disclosure would not have made any difference and was not so grave and so serious as to justify a re-opening of the proceedings, which would itself cost a great deal of money and which would result in precisely the same conclusion.

Even though the appeal had overcome the section 55(1) hurdle, there was no prospect of the appeal succeeding.

Read the full text of the judgment here