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A (Children) [2009] EWCA Civ 676

Application by wife for permission to appeal, out of time, an order in ancillary relief proceedings for a transfer of property. Application refused.

The order was made in May 2008 and the application for permission to appeal was received in April 2009. The applicant explained that the delay, which now made the application out of time, had been caused by her lack of legal representation and so argued that this should be sufficient to allow the application.

Wall LJ rejected this argument partly because the trial judge had recorded that the applicant had “represented herself ably” so she was not disadvantaged and partly because there were already other proceedings ongoing under Part III of the Matrimonial and Family Proceedings Act 1984, so she has the chance of a remedy in those proceedings.

Case No: B4/2009/0743

Neutral Citation Number: [2009] EWCA Civ 676
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 20th May 2009


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(DAR Transcript of
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Mr C Wood (instructed by Mundays) appeared on behalf of the Respondent.

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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Wall:
1. This is an application by JK, formerly Mrs A, for permission to appeal against an order made by HHJ Hughes QC as long ago as 2 May 2008.  The Appellant’s Notice was received in this court on 3 April 2009 and the matter came before me without notice to the respondent husband last week.  Due partly to pressure of time and also to the obvious complexity of the case, I thought it sensible to have the matter listed inter partes, not least because it seemed at the time that Mrs K was in danger of being evicted from the home in which she was living, something which we understand today has now in fact taken place.

2. It is however, necessary, I think, to emphasise that this court is only concerned with the application for permission to appeal against the order made by Judge Hughes on 2 May 2008 and, in particular, the judge’s refusal to set aside the transfer of the property in which Mrs K was living in Surrey. 

3. Mrs K, who is in person today and was in person last week and indeed appeared in person before the judge, has produced a detailed skeleton argument, a document which she has expanded today with a further document to which other documents are annexed, all of which, of course, my Lord and I have read.

4. It is, I think, immediately apparent that Mrs K is very substantially out of time for appealing against the order, and in her skeleton argument she seeks to explain how that has come about.  She explains that she is a litigant in person; that she has therefore an imperfect knowledge of the law and procedure.  She has told us through an interpreter today that she did not appreciate the likely consequences of her failure to file her Appellant’s Notice in time.  She says she had no money; could not afford legal advice; was advised that the case was complex and that she needed a solicitor; and accordingly, we should in all the circumstances extend her time.
5. She says she has been to the Citizens Advice Bureau at least twice and they have told her that she needed legal advice.  Speaking for myself, I have to say that I do not think that the explanation she has put forward comes anywhere near satisfying the stringent provisions laid down by this court, in particular in relation to the question of extension of time.  I am fortified in that conclusion by the fact that there has been very substantial litigation between the parties on a number of fronts, and Mrs K has permission to apply to the court under Part III of the Matrimonial and Family Proceedings Act 1984 following her divorce from her former husband in Israel.  Any deficiency, therefore, in the financial arrangements between the parties can, in my judgment, be dealt with comprehensively in those proceedings.  So Mrs K is not without a remedy.  I would therefore myself take the view that the explanation that she has proffered, which I have read carefully and considered, is not sufficient to satisfy the criteria and I would refuse the extension of time that she seeks.

6. As always in family cases, however, or cases which have a strong family flavour, the court will look to the merits just as it were as a check.  The grounds of appeal which Mrs K advances are somewhat exiguous but nonetheless clear.  She says the judge was wrong and unjust in the order which she made.  She argues that she did not have adequate legal advice and representation during the trial because no public funding was available and she did not therefore have representation at all or at a level of expertise appropriate to the proceedings.  I have, of course, read the judgment with some care and I was concerned about the exercise by the judge of the jurisdiction.  I was unclear what jurisdiction she was exercising.  Nobody took the point before her and she dealt with it on its merits.  Mr Wood, who appears today pursuant to my listing, informs me that his understanding is that the application by Mrs K originated in the Chancery Division, was transferred to the Family Division and was therefore dealt with in the Principal Registry as an application pending in the High Court.  Judge Hughes is, of course, an extremely experienced circuit judge and I am satisfied that she did indeed have jurisdiction (in the light of what I am told) to do what she did.

7. It is, I think, significant, looking at the merits, that the judge was fully aware from the first paragraph of her judgment that Mrs K was indeed in person and that she was impecunious.  But she goes on to say, and I think this is of some significance, that it would have been more helpful to her (that is, to the judge) if Mrs K had been represented than to Mrs K herself.  She goes on to comment that Mrs K represented herself ably and conducted cross-examination of the husband and his witnesses with considerable restraint and ability.  I do not therefore think, speaking for myself, that Mrs K was disadvantaged and it equally seems to me, having read the judgment with some care, that the judge was essentially making findings of fact which it is impossible for this court to disturb.  It is equally clear that the judge was not impressed by either husband or wife, as I may call them in shorthand.  Both, it seemed to her, were not telling her the full story.  But, as I say, the findings which she made, and the basis on which her order is drafted, seem to me to be founded on facts which she was entitled to find and therefore the conclusion which she reached is not one which can be sensibly impugned.

8. In any event, as I have already made clear, it seems to me that Mrs K has her remedy.  She is able to pursue her former husband under Part III of the 1984 Act.  She was given permission so to do by Mr Jonathan Cohen QC, sitting as a deputy judge in the High Court.  That application, as I understand it, is underway and will continue.

9. Quite what the financial relationship between these parties is is not for us to investigate this afternoon.  We are simply dealing, as I said before, with the application for an extension of time and, if granted, for permission to appeal.  In my view the delay is excessive and not fully explained.  Therefore I would refuse the extension of time.  In my view the application should be dismissed on that basis.  However, even if I was wrong about that, I would come to the clear view that the judge was fully entitled to reach the decision she did and I would therefore refuse permission to appeal on the merits.

Lord Justice Elias: 
10. I agree.  I do have sympathy for a woman who has to take proceedings on her own in a case of this nature, but the fact is she is ten months out of time.  It is very exceptional to extend time and I see no justification for extending it to that extent.  In addition, as far as the merits are concerned, as my Lord, Wall LJ, has said, in truth they had no real prospect of success.  The judge made a finding, on the evidence, that there was no duress in the transfer of the house to the husband.  This appeal was really seeking to re-open that finding of fact and ask this court to go back over the evidence.  It is not our function to do that. 

11. So I too think this case has no real prospect of success and I would refuse leave to appeal on that ground.

Order: Application refused