Lawlor v Lawlor
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE HOFFMANN,SIR FRANCIS PURCHAS |
| Judgment Date | 14 October 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1014-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 1994 |
| Docket Number | CCFMF 94/0825/F |
[1994] EWCA Civ J1014-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(ON APPEAL FROM THE COUNTY COURT)
Before: Lord Justice Butler-Sloss Lord Justice Hoffmann and Sir Francis Purchas
CCFMF 94/0825/F
MRS. LAWLOR appeared in Person.
MISS RYAN (instructed by Messrs. Brown, Turner, Compton & Garr, Southport) appeared on behalf of the Respondent.
This is an appeal by a wife acting in person, with leave of another Division of this Court on the 15th November 1993.
Her appeal is from the dismissal by His Honour Judge Morgan, on 23rd June 1993, of her appeal from the order of District Judge Pomfret on 19th May 1993. The District Judge refused her application for leave to file an answer out of time.
A most unfortunate chapter of events has occurred in which the wrong decision of the District Judge has led to not only a decree nisi being pronounced, but a decree absolute being granted, both of which will have to be set aside.
The short facts of this case are that the parties were married on 9th February 1963 and have three grown up sons. The parting was in 1992, so it was a long marriage by anybody's standards.
On 8th December 1992 the husband petitioned for divorce on the grounds of section 1(2)(b) of Matrimonial Causes Act 1973, on the grounds of the unreasonable behaviour of the wife.
On 6th January 1993 the wife, who at that stage had solicitors acting for her, filed her acknowledgement of service indicating an intention to defend. By some unexplained oversight, her solicitors failed to file the answer within the 21 days required by the Family Proceedings Rules 1991, r. 2-12. They attempted to do so some 8 or 9 days late. At that stage leave to file the answer out of time was required.
On the hearing before the District Judge that leave was refused. It was a most unusual order, to which I shall return in a moment.
There was an appeal by the wife to the Judge out of time. The Judge granted her leave to appeal and then dismissed the appeal. The petition then proceeded by special procedure. The Registrar's certificate was given and the decree nisi was pronounced on 24th August 1993.
The wife made an application to the Court of Appeal, but this application was unknown to the Southport District Registry, who granted the decree absolute on 11th November 1993, four days before the wife's application for leave to appeal came before the Court of Appeal.
It is most unfortunate again that this should have happened. The wife, by then, was a litigant in person. No blame can attach to anyone in respect of the decree absolute being granted.
Another unfortunate delay has been before this appeal could get to this Court, very nearly a year after leave was granted.
The appeal raises the issue as to how a District Judge should deal with an application to file an answer out of time. We have been referred to several decisions with which I respectfully agree. Counsel for the husband (Miss Ryan) has helpfully referred us to two of them in particular. The case of Moosa v. Moosa [1983] FLR 131 and Spill v. Spill [1972] 3 AE 9, in each case where court refused to allow an answer to be filed out of time. In the case of Moosa, after the Registrar's certificate was granted and where there was no explanation for the considerable delay, and in Spill, where the husband indicated his intention not to defend, changed his mind two months later and attempted to file an answer not seeking relief without any explanation.
That was interpreted by this Court as a tactical device to gain some benefit as part of the bargaining process in the financial negotiations between the parties.
The case before us today is quite different. The wife indicated her intention to defend in her acknowledgement of service and applied for leave to file her answer before directions for trial were given.
There is no note of the judgment of the District Judge, but we can gain considerable help from the judgment of the Judge on appeal.
At page 18 of the bundle the reasons of the District Judge were set out by the Judge as being:
"1. Answer not supported by Affidavit.
2. Draft Answer? Sufficient in it to justify an Answer filed, Contained a number of admissions. Respondent must show there are grounds for a reconciliation and likelihood and the District Judge did not feel that draft Answer showed that. Before the District Judge the respondent conceded that leave was required".
On page 24, again dealing with the reasons of the
District Judge, the learned Judge said:
"1. She has never explained the delay.
2. She has in her draft Answer denied the marriage has broken down but made allegations against the petitioner that conflict with that.
3. She has admitted three serious incidents of conduct".
He also said at the bottom of page 24:
"The District Judge apparently came to the conclusion that she was, 'a woman scorned intent on causing trouble'. I would not go that far on the evidence before me".
The Judge made the decision to dismiss the appeal based upon the grounds put forward by the District Judge.
He said that the District Judge was entitled to look at the merits. He pointed out there was no longer any stigma attached to being the guilty party, nor any weight to be attached to conduct in ancillary proceedings, except in the most unusual cases. He asked the...
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