G. (formerly P.) v P. (Ancillary Relief: Appeal)

JurisdictionEngland & Wales
Judgment Date23 June 1977
Judgment citation (vLex)[1977] EWCA Civ J0623-2
Date23 June 1977
CourtCourt of Appeal (Civil Division)

[1977] EWCA Civ J0623-2

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the Luton County Court


Lord Justice Stamp

Lord Justice Ormrod


MR. A. De FREITAS (instructed by Messrs Gregory Rowcliffe & Co., agents for Messrs Wynter, Davies & Lee, Hertford) appeared on behalf of the Appellant.

MR M.CURWEN (instructed by Messrs Tickle & Co.) appeared on behalf of the Respondent.


I will ask Lord Justice Ormrod to deliver the first judgment in this case.


This is an appeal from an order which was made by His Honour Judge Kingham at the Luton County Court on the 13th April of this year. By that order he dismissed an appeal by a former wife (whom I will call "the wife" for convenience) against an order which the learned registrar had made for periodical payments, He varied in a minor way an order the learned registrar had made in respect of the wife's house.


Very unfortunately the learned County Court judge himself took a point of law at the outset of the hearing of the appeals which, it is fair to say, took both counsel by surprise. The result has been that it has been necessary to consider this point in some depth, and we have been told that it has caused a good deal of anxiety in various quarters and has brought to the surface, apparently, some doubts about practice in relation to appeals from registrars to County Court judges. While this court has no desire to trespass on any part of the territory more properly belonging to the Judges of the Family Division or to the learned President it may be that some helpful observations can be made in the course of this judgment.


The point arose, as I said, at the outset of the hearing before the learned judge, who took the point that order 37, rule 5 of the County Court rules applied to the particular case under appeal, and, as a result, the learned judge decided that he could not embark upon a rehearing of the wife's application unless both parties consented, Order 37 begins, in sub rule (1), in this way: "any party affected by a judgment or final order of the registrar may, except when he has consented to the terms thereof, appeal therefrom to theJudge, who may upon such terms no fee thinks just (a) set aside or vary the Judgment or order or any part thereof" and so on. There is a note to order 37, rule 5, (which is on page 616 of the current County Court Practice), which draws a distinction between various kinds of appeal, e.g. order 13, rule 1 interlocutory matters and (111) "under the above order 37, rule 5." The note reads "This latter appeal is from a final order or Judgment of the registrar and cannot be made as of right morely because the appellant is dissatisfied with the decision of the registrar. The judge on such appeal has a discretion to allow the appeal in such form as is permitted in the above rule, but his discretion is an appellate discretion and must be exercised judicially only for good and sufficient reason." The rest of the note does not matter.


It is particularly unfortunate that the learned judge should have taken this point, because the one thing that is abundantly clear about this case is that the court was not dealing with a final judgment or final order of the registrar. Whatever orders for periodical payments may be, they are not final orders, because they are subject to reviser. They are classified under the heading of interlocutory orders, no matter whether some part of the order, as in lump sum or property adjustment orders, appear to be final in effect, and indeed are final in effect. But they are all classified under the heading of interlocutory orders or judgments. So the learned judge regrettably misled himself into thinking that order 37 applied; it does not.


Moreover, it is quite clear from the Matrimonial Causes Rules - and I am; a looking at the 1977 rules, but the earlier rules are in the same terms - that Rule 24 the other County Court Rule which deals with appeals from registrars on interlocutory matters (that is order 13, rule 1), does notapply to matrimonial proceedings which are pending in the County Court. Rule 24 goes on, "any party may appeal from such an order or decision to a Judge on notice filed within 5 days after the order" and so on. So the appeal to the learned judge in this case was governed by the Matrimonial Causes Rules. Of that there can be no shadow of a doubt in my opinion.


It is equally clear that the practice and the principles applicable to appeals in those cases which are proceeding in the County Court cannot differ in principle from the rules and practice which relate to appeals from registrars to judges in the High Court. These are regulated by order 58 (1) of the supreme Court Gules, which reads "except as provided by rule 2, an appeal shall lie to a judge in chambers from any judgment, order or decision of a master of the Queen's Bench Division, the Admiralty registrar or a registrar of the Family Division". Then there are provisions as to service of notice and so on. There is a most helpful note in the white Book to that rule which Summarises, in my judgment correctly, and very lucidly, all the relevant matters of practice and so on. It is headed "Nature of appeal from master or registrar to judge in chambers - An appeal from the master or registrar to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time, save that the party appealing, even though the original application was not by him but against him, has the right as well as the obligation to open the appeal. The Judge" - and then there is a quotation from Evans v. Bartlam - "'will of course give the weight it deserves to the previous decision of the masters but he is no way bound by it. The judge in chambers is in no way fettered by the previous exercise of the master's discretion, and on appeal from the judge in chambers, the Court of Appeal will treat thesubstantial discretion as that of the judge, arid not of the master," Reference Is again made to Evans v. Bartlam and cooper v. Cooper (1936) Weekly Notes, 205. The note goes on, "it is common practice for the Judge in chambers, subject of course to the question of costs, to admit further or addition' evidence by affidavit to that which was before the master or registrar; but if a party has taken his stand on the evidence as it stood before the master or registrar, the judge in Chambers may in his discretion, by analogy with the practice in the Court of Appeal, refuse to allow him to adduce further evidence". That note, in my judgment, sums up very conveniently the practice in these matters.


Reference was made by Mr. DeFreitas, who opened this appeal on this point very helpfully, and also by Mr. Curwen, who appears for the husband in this case (and who very properly did not attempt to support the learned judge's view that the case vas governed by order 37 rule 5 of the County Court Rules) first to the case of Stibbe v. Stibbe, which is reported in the 1931 Probate Division Reports, page 105. The relevant passages are, first, in Lord Hanworth's judgment at page 103, where he said this "it is to my mind unnecessary to say anything about the jurisdiction of this court upon an appeal, or the jurisdiction of the learned judge when the matter comes before him from the registrars. It appears plainly from the cases which have been brought to our attention - and there have been quite a number of them in recent years - that the order of the registrar can be reconsidered by the learned Judge, and that from his decision an appeal lies to this court".


The matter was also dealt with by Lord Justice Lawrence in rather more detail on page 114. In the middle of the page he said, "the Judge on the hearing of the appeal should, of course, give due weight to the decision of the registrar, and should be slow to disturb that decision on a mere question of quantum unless it clearly appears from the proved facts that it would be wrongto allow the amount ordered by the registrar to be secured or paid to stand".


The matter is taken a little further by a decision of Sir Jocelyn Simon, P. (as he then was) in a case called Sanson v. Sanson, reported in 1966 Probate Reports at page 52. The relevant passage is on page 53 G. There the learned President said, "before I some to examine the figures in detail, there are five preliminary matters with which I ought to deal. (1)" - and this is the relevant one -" what weight should the decision of the registrar have with me; and on whom, in consequence, does the onus of proof rest on this appeal? In Cooper v. Cooper and Evans v. Bartlam it was laid down that where a jurisdiction is given to the court or a judge the discretion is that of the judge in chambers, the decision being no more than initially delegated to master or registrar". Then he refers to the relevant provisions then in force of the Matrimonial Causes Act. 1965. He goes on, "On this basis it was argued on behalf of the husband that the onus rested on the wife as applicant. But the Matrimonial Causes Rules, rules 45, 47 and 51, provide for the preliminary investigation by the registrar of applications for permanent alimony or for variation of an existing order, and rule 61 provides for appeals on such matters to the judge in chambers. (These rules replace similar ones in the 1924 codes see Stibbe v. Stibbe.) In that case the Court of Appeal laid down that if the judge on the hearing of an appeal comes to the conclusion that the direction of the registrar was wrong and ought not to have been made, he can recall the order issued in pursuance of such direction and make such order as in his judgment he deems just, though he should give due weight to the decision of the registrar and be slow to disturb that...

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