Hart v Hart
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 24 May 2016 |
| Neutral Citation | [2016] EWCA Civ 497 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B6/2015/2308 |
| Date | 24 May 2016 |
[2016] EWCA Civ 497
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL CIVIL AND FAMILY JUSTICE CENTRE
(HIS HONOUR JUDGE WILDBLOOD QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Sir James Munby
PRESIDENT OF THE FAMILY DIVISION
B6/2015/2308
The Applicant appeared in person
Mr P Mitchell (instructed by Irwin Mitchell LLP) appeared on behalf of the Respondent
This is a renewed application for permission to appeal in ancillary relief proceedings, the application being made by the husband, as I shall refer to him. The judgments under challenge were given by His Honour Judge Wildblood QC in the Bristol Family Justice Centre, although the judge was sitting in the High Court under section 9. The first judgment was dated 20 May 2015 and the second, supplementary, judgment was dated 25 June 2015.
In the event both the husband and the wife, as I shall refer to her, sought to appeal against Judge Wildblood's decision. The two applications came on the papers before Kitchin LJ on 26 February 2016. The single judge gave the wife permission to appeal and refused the husband's application for permission to appeal.
As before Judge Wildblood, the husband has appeared today before me in person. His complaints about Judge Wildblood's judgment are set out in 20 numbered grounds of appeal, elaborated in a helpful and more detailed skeleton argument. In accordance with Kitchin LJ's order, the hearing today was fixed on notice to the wife, and she has appeared today, as she has throughout, by Mr Peter Mitchell of counsel who, to the extent that I thought it helpful and appropriate to do so, has addressed submissions to me as to why the husband's application should be refused.
I should add that, although it had not come either to my attention or seemingly to the husband's attention before this morning, Mr Mitchell put before me a "First respondent's note opposing grant of permission to appeal" dated 30 July 2015. Before I commenced the hearing, I gave the husband as much opportunity as he needed to read that document. Although he complained about the fact that it was the first he had seen of it, he made clear in answer to a question from me that he did not seek any adjournment.
The husband's grounds of appeal as formulated before me this morning, and I bear in mind that he has not withdrawn any of his grounds of appeal, so I treat as being before me not merely those which he has addressed me on orally this morning but also those set out in his grounds of appeal, fall under seven headings. I shall take them in the order in which he presented them to me.
The first complaint arises out of the fact that the wife has for some years now been, as the husband would have it, cohabiting with and indeed living as husband and wife with another man. The husband, in reliance upon the decision of Mostyn J in the case of AB v CB [2014] EWHC 2998 (Fam), complains that Judge Wildblood was wrong or at least arguably wrong in his decision that that was not a matter which led to any reduction in the wife's needs. Mostyn J's decision was before Judge Wildblood and was indeed relied upon before him by the husband. Judge Wildblood rehearsed the evidence of both the wife and her current partner (see paragraphs 34 and 35 of his first judgment) and went on to explain (see paragraph 45 of the same judgment) why it was he concluded in the light of that evidence that, as he said:
"I do not consider that the presence of Mr Chubb in the life of Mrs Hart should in any way diminish her needs."
Mr Mitchell submits, and I agree, that Mostyn J's judgment does not lay down any principle of law. In my judgment, these matters are quintessentially matters of fact where the trial judge has to have regard to the totality of the evidence, including the nuance of that evidence, before coming to a conclusion as to whether the prospects of remarriage, or indeed the future prospects of the relationship, should or should not, and if they should to what extent they should, be taken into account.
Despite what the husband has said, and I have carefully read the relevant paragraphs of Mostyn J's judgment (see in particular paragraphs 66 and 67), these were fundamentally matters of fact upon which Judge Wildblood had to hear the evidence. He came to a conclusion which was plainly open to him on the evidence he heard, and in my judgment there is no realistic prospect of the husband disturbing that essentially factual finding by way of appeal.
The second point which the husband takes I can conveniently link with the seventh. The second point is that he produced a substantial volume of case law which he wished to put before Judge Wildblood. Judge Wildblood, he complains, prevented him from deploying the whole of his armoury, brushing it aside on the basis that he, Judge Wildblood, was very familiar with the principles. The seventh ground, identified this morning, is put by the husband on the basis of unfairness, there being, as he would have it — although Mr Mitchell disputes this on the facts — an imbalance between the time which was afforded to Mr Mitchell and the time which was afforded to him, the husband, to make final submissions.
In relation to those two matters, the fundamental point as I see it is that the husband has not put before this court the transcript of the relevant parts of the proceedings, without which this court is in no position to evaluate whether there has or has not been unfairness in the process. If it is to be said that there has been some unfairness in the process, and each of those two grounds in substance allege unfairness on the part of Judge Wildblood and the way in which he conducted the proceedings, this court would normally expect, and in my judgment this case is no exception, that there should be put before the court an official transcript so that this court can evaluate the merit or lack of merit of the assertions being made.
The third matter put before me by the husband this morning relates to what...
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