Baker v Rowe
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Leveson,Lord Justice Ward |
| Judgment Date | 06 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1162 |
| Docket Number | Case No: B4/2009/0322 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2009 |
[2009] EWCA Civ 1162
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRURO COUNTY COURT
HIS HONOUR JUDGE VINCENT
Before: Lord Justice Ward
Lord Justice Wilson
and
Lord Justice Leveson
Case No: B4/2009/0322
LOWER COURT NO: TR08D00171
Mr Andrew Worthley (instructed by CVC Solicitors, Penzance) appeared for the Appellant.
Miss Daisy Brown (instructed by Coodes, St Austell) appeared for the Respondent.
Hearing date: 20 October 2009
Lord Justice Wilson:
We have to unravel a tangled situation in relation to orders for costs as between interveners in proceedings for ancillary relief following divorce.
There are four protagonists. The first two are Mrs Wood and Mr Wood. They are now aged 98 and 99 respectively. They were married in 1972 and Mrs Wood issued a petition for divorce in 2008. Although the decree nisi granted to her has probably now been made absolute, it will be convenient for me to call Mrs Wood “the wife” and Mr Wood “the husband”. The third protagonist is Mrs Rowe. She is the daughter of the wife by a marriage prior to her marriage to the husband. Although therefore Mrs Rowe is not the husband's daughter, it will be convenient to describe her as “the daughter”. The fourth protagonist is Mr Baker. He was married to the daughter between 1988 and 1996. Although therefore Mr Baker was never the son-in-law of the husband and although his divorce from the daughter means that he is no longer the son-in-law even of the wife, it will be convenient to describe him as “the son-in-law”.
The son-in-law applies for permission to appeal against an order made by His Honour Judge Vincent in the Truro County Court on 22 January 2009. The hearing of his application was arranged as a hearing on notice to the daughter and on the basis that, were permission granted, the substantive appeal would be determined forthwith. Neither the wife nor the husband takes any part in the proceedings in this court.
Subject to errors on his part to which I will refer in [5] below, I can broadly say that on 22 January 2009 the circuit judge determined an appeal brought by the son-in-law against an order for costs made against him in favour of the daughter by District Judge Mitchell on 19 November 2008 following the intervention of each of them in proceedings for ancillary relief between the wife and the husband. Subject to those same errors, I can broadly say that the circuit judge dismissed the son-in-law's appeal. The son-in-law aspires to appeal to this court against the dismissal of his appeal.
The errors to which I have referred arises from the conjunction of:
(a) the circuit judge's statement that the son-in-law needed permission to appeal to him;
(b) the circuit judge's observation that, had he considered the issue of permission to appeal as a discrete matter, he would have granted it; and
(c) the circuit judge's orders, both as announced at the end of his judgment and as drawn, to the effect not only that the appeal should be dismissed but also that the application for permission to appeal to him should be refused.
A curiosity arising out of [5](b) and (c) above is that, although the circuit judge considered that permission to appeal to him was required and would have been granted if it had been considered as a discrete matter, his ultimate order was to refuse permission as well as to dismiss the appeal: for of course the same criteria for the grant of permission apply irrespective of whether the application for it is made separately or, as today, at a hearing at which the substance of the proposed appeal would also fall to be considered in the event that permission were granted. In this court we frequently grant permission to appeal and then, at the same composite hearing, proceed to dismiss the appeal. I will propose that very course at the end of this judgment.
But the major question-mark in this area is against the circuit judge's statement, recorded at [5](a) above, that the son-in-law needed permission to appeal to him. In the skeleton arguments filed for the use of the circuit judge counsel for the daughter did not contend (nor did counsel for the son-in-law concede) that permission to appeal was required; and I am unclear how the circuit judge came to make his unexplained statement that the son-in-law needed permission to appeal to him, notice of which had been filed in time. Rule 8.1(1) of the Family Proceedings Rules 1991 (“the Rules of 1991”) provides that any party may – i.e. without permission – appeal from an order or decision made or given by the district judge “in family proceedings” in a county court to a circuit judge on notice. Although para. (1) is subject to an exception where para. (2) of the rule applies, namely, for present purposes, in the case of an order “on an application for ancillary relief”, the effect of the exception is not to deprive a party of the ability to appeal against an order “on an application for ancillary relief” without permission; the exception has a different effect to which it is unnecessary to refer. Thus, irrespective of whether the district judge's order for costs between the daughter and the son-in-law is properly to be described as “on an application for ancillary relief” within the meaning of para. (2), no permission to appeal is presently required for an appeal from it provided that it was made “in family proceedings”.
Miss Brown, who appeared for the daughter in both courts below and who appears for her in this court albeit now pro bono, seeks to defend the circuit judge's statement that the son-in-law needed permission to appeal to him. Her argument therefore has to be that the proceedings before the district judge were not family proceedings, with the result that permission was required under Rule 52.3(1) of the Civil Procedure Rules 1998 (“the Rules of 1998”). She argues that:
(a) the claims of the daughter and the son-in-law before the district judge were made under the Trusts of Land and Appointment of Trustees Act 1996 (“ TOLATA”);
(b) claims under TOLATA are not family proceedings but, instead, are assigned to the Chancery Division under s.61(1) of, and Schedule 1 to, the Supreme Court Act 1981;
(c) had the issue between the daughter and the son-in-law proceeded in the High Court, rather than the county court, it would have been assigned to the Chancery Division; and
(d) insofar as at the hearing in November 2008 the district judge was also, albeit quickly and by consent, making a conclusive determination of the wife's claim for ancillary relief against the husband, the proceedings before him were partly family proceedings and partly non-family proceedings.
I am clear that Miss Brown's arguments at [8](a), (c) and (d) above are invalid. Section 14 of TOLATA provides only a vehicle which may be used for the assertion of a beneficial interest in property. In some circumstances other vehicles may be available: for example, for spouses, s.17 of the Married Women's Property Act 1882. In this case a third vehicle was available and was properly used instead of TOLATA. For the property in which the daughter and son-in-law wished to assert a beneficial interest was already the subject of proceedings for ancillary relief in family proceedings; and they were allowed to become parties to those proceedings in order to make their claims within them. For reasons to which I will advert in [23] below, the family proceedings were clearly the appropriate vehicle for them to use in making their claims. The nature of their claims did not cause the proceedings at any time to cease to be family proceedings; nor to become partly family proceedings and partly non-family proceedings.
The circuit judge's error that the son-in-law needed permission to appeal to him and the eccentricity of his ultimate purported refusal of permission have led to confusion about whether it is open to the son-in-law to appeal to this court. For s.54(4) of the Access to Justice Act 1999 (“the Act of 1999”) provides, generally, that no appeal may be made against a decision of a court to refuse permission to appeal. Nor is there inherent power in this court to bypass the prohibition in the subsection against hearing an appeal from a refusal of permission: Riniker v. University College London (Practice Note) [2001] 1 WLR 13. Had I been of the view that the son-in-law needed permission to appeal to the circuit judge, it is possible, in the light of the circuit judge's comment that, had he considered the issue of permission as a discrete matter, he would have granted it, that I would have suggested that we should proceed on the basis that his later purported refusal of permission was a slip and that he should be taken instead to have granted permission, albeit followed of course by his dismissal of the appeal. That would have resolved the problem presented by s.54(4) of the Act of 1999. As it is, however, the circuit judge's purported refusal of permission is best treated simply as a nullity.
Nevertheless, notwithstanding clarification of that particular area of erstwhile confusion, the fact remains that the son-in-law's proposed appeal to this court would be a second appeal and that, in accordance with s.55(1) of the Act of 1999 and Rule 52.13(2) of the the Rules of 1998, we cannot give permission unless we consider that the appeal would raise an important point of principle or practice or that there is some other compelling reason for us to hear it.
In 1976 the wife and the husband moved together to live at 3 Marlborough Grove, Falmouth...
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