Cart v Cart

JurisdictionEngland & Wales
JudgeLady Justice Gloster
Judgment Date07 August 2013
Neutral Citation[2013] EWCA Civ 1006
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B6/2013/0553
Date07 August 2013

[2013] EWCA Civ 1006





Royal Courts of Justice

Strand, London, WC2A 2LL


Lady Justice Gloster

Case No: B6/2013/0553


Mr David Burrows (Pro Bono) appeared on behalf of the Applicant

The Respondents did not appear and was not represented

Lady Justice Gloster



This is an application by Mr C for permission to appeal the decision of HHJ Marston made in the Bristol County Court on 7 February 2013, by which: (i) he refused Mr C's application for permission to appeal out of time against an ancillary relief order dated 26 May 2006 made by District Judge Exton; and (ii) refused Mr C's application to set aside that order on grounds of material non-disclosure. There has been no previous determination of this application by a single Lord Justice on the papers.


Mr David Burrows, a solicitor advocate, appeared on behalf of Mr C on a pro bono basis. The court is grateful for his assistance and for his careful and detailed written and oral submissions and chronology.


After the hearing on 14 June 2013, at which I gave an extempore judgment and refused (or purported to refuse) Mr C permission to appeal against HHJ Marston's order, Mr Burrows raised further points in a e-mail dated 17 June 2013 and in a further eleven page note dated 15 June 2013 attached to that e-mail. In that material, Mr Burrows variously invited me to recuse myself, not to seal the order which I had made on 14 June 2013 and/or alternatively to refer the matter to the full Court. He also questioned the reference in my extempore judgment to the criteria set out in CPR 52. 13 in relation to second appeals and disputed that the present appeal involved a second appeal.


In the light of Mr Burrows' further representations, I have added to, and revised, the extempore judgment which I gave on 14 June. In particular, I have also addressed what, upon reflection, appeared to me to be a jurisdictional problem facing at least one aspect of Mr C's current application to this court, as well as the issue of whether a second appeal is involved.


Prior to handing down this judgment, and sealing the order, I provided Mr Burrows with a draft of this judgment. I also gave him a further opportunity to make submissions in writing in relation to the jurisdictional and procedural issues raised in my draft judgment. It appears from letters respectively dated 19 March 2013 and 14 May 2013 from Mr Burrows to the Civil Appeals Office (which Mr Burrows provided to me under cover of an e-mail dated 2 July 2013) that Mr Burrows had been in correspondence with the office about a jurisdictional issue which the office had raised in relation to the application of section 55(4) of the Access to Justice Act 1999. It appears that Mr Burrows received no answer to his question as to whether the issue was something the court expected him to deal with at the hearing on 14 June and therefore he assumed that the issue was no longer live. However, as a result of my providing him with the opportunity of addressing the point in written submissions, he has now had an opportunity to deal with that issue.


In that period between 14 June and the handing down of this judgment the court did not draw up or seal the order, which I had made on 14 June dismissing the application for permission to appeal.


Following a request by Mr Burrows for an extension of time which I granted, on 15 July 2013 Mr Burrows filed further written submissions with the court, extending to some 15 pages.

History of the proceedings


In order to set this application for permission to appeal in its proper context, it is necessary to rehearse, at least in summary form, the history of the proceedings between Mr and Mrs C. Mr and Mrs C were married in 1984. The divorce petition was filed in 2002, decree nisi was granted in October 2002 and decree absolute granted in January 2003. There are five children of the family, now all over 18.


On 21 October 2004 Mrs C applied to the Child Support Agency ("the CSA") for a child support maintenance calculation under the Child Support Act 1991 as amended. The application could not proceed immediately by reason of an existing court order for maintenance which had been made in October 2003. Mr C was contacted by the CSA by telephone on 9 March 2005 which was accordingly treated as the first effective date for liability. (This appears from page 3 of the "Statement of reasons for decision" issued by the Appeal Tribunal dated 22 October 2007 ("the Tribunal Judgment" to which I refer below.)


On 13 January, 1 February and 3 February 2006 an ancillary relief hearing took place in front of District Judge Exton. On 10 March 2006 District Judge Exton gave judgment on the ancillary relief application, making certain orders, in particular in relation to the capital assets of the husband and wife. This provided for the transfer of the matrimonial home, B House, to Mrs C, Mr C to retain certain land near Nuneaton and to have transferred to him a French property, he to retain his shareholding in his company, BR Solutions Ltd ("the Company"), and for Mr C to pay Mrs C an additional sum of £50,000, out of which she would have to pay her debts of £8,356 and her costs. The judge also provided that there would be a 50 per cent pension-sharing order in Mrs C's favour in respect of the Mr C's pension, and made various other provisions which were set out in her order dated 26 May 2006. According to paragraph 114 of her judgment dated 10 March 2006, the District Judge said that that was a division of capital 54/46 in the wife's favour, and that:

"A departure from the yardstick of equality is justified given the considerable discrepancy in the parties' earning and potential earnings. Mrs C has a maintenance entitlement, but in view of the extraordinary action taken by Mr C in respect of the children, and I am referring of course to DNA tests, the recovery of any maintenance is, in my view, likely to be problematical. My order is on the basis of a clean break."

Her order also provided that Mr C should not be entitled, on the death of Mrs C, to apply for an order for provision out of Mrs C's estate.


By notice dated 24 March 2006, Mr C appealed District Judge Exton's ancillary relief order on the merits. Paragraph 23 of the "Grounds" supporting such notice read as follows:

"23. The judge was wrong as a matter of law to fail to take into account the fact that H is likely to have a further payment required of him as a result of the probable consequences of the variation directions procedure under Child Support Act 1991 as set out in H's advocates' submission to the court. The judge took no or no express, account of this further liability upon H."

On 18 December 2006 HHJ Barclay dismissed the appeal holding it to be "wholly without merit". His judgment did not expressly address the point that Mr C was "likely to have a further payment required of him as a result of the probable consequences of the variation directions procedure under Child Support Act 1991". Mr Burrows told me that permission to appeal to the Court of Appeal was refused by this court.


Subsequently, according to HHJ Marston (see paragraph 4 of his judgment), there was a further application to appeal District Judge Exton's ancillary relief order on the basis of Barder v Caluori [1988] AC 20. Mr Burrows told me that this was not in fact a Barder appeal, but rather an application by Mr C to set aside the ancillary relief order on the grounds that, at the hearing Mrs C, had not told the truth about her relationship with another man, and had allegedly returned to live with him, a fact which District Judge Exton in her original judgment had found to be unlikely to happen. Whatever the nature of the application to set aside the order, the application was struck out by Coleridge J on 16 or 17 July 2007.


As I have already mentioned, by the time of the hearing before District Judge Exton, Mrs C had made an application to the CSA for child support maintenance. Mrs C had been notified by telephone on or about 27 January 2006 of the initial calculation made by the CSA in the sum of £80 per week. According to a note by Mr Burrows dated 3 February 2006 (which he tells me was before or available to District Judge Exton at the hearing on 3 February 2006), District Judge Exton was informed that, as at the date of the hearing, the husband had been assessed to pay child support maintenance at the rate of £83 per week from an effective date of 9 March 2005. (The note actually refers to a figure of £83 "per month" but that was clearly meant to be a reference to £83 per week. This is supported not only by the subsequent judgment of the Appeal Tribunal dated 22nd of October 2007 to which I refer below, but also by what Mr Burrows himself told me at the hearing.)


Importantly, in paragraph 2 of that note, Mr Burrows correctly and rightly envisaged the possibility that there might be an application by Mrs C for a variation direction, in other words an application to increase the child maintenance, or the child support, that Mr C had been ordered to pay. The note read:

"If wife applies for a variation direction (Child Support Act 1991 ss 28 A ( 3) or 28 G (1); Child Support (Variations) Regulations 2000 reg 4) — ie alongside present application or as a supersession to any existing decision, it would be on the basis of lifestyle inconsistent with declared income."


Paragraph 4 of the note read:

"The effective date for commencement of the payments is at the...

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