Merritt v Merritt
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1992 |
| Court | Family Division |
BRACEWELL, J
Appeal – from district judge to Judge – power of Judge as appellate court – to adopt same practice as Court of Appeal – discretion to admit fresh evidence – circumstances in which discretion should be exercised.
On an application for ancillary relief in divorce proceedings, a district judge made a financial provision order in favour of the wife.
The husband sought leave to appeal out of time and to adduce fresh evidence relating to the value of the matrimonial home and to the value of shares he held.
Appeals from district judges are governed by r 8.1 of the Family Proceedings Rules 1991 which includes the following provisions:
"(1) Except where para.(2) applies, any party may appeal from an order or decision made or given by the district judge in family proceedings in a county court to a Judge on notice; and in such a case –
(a) C.C.R. Ord.13 r.1(10) (which enables the Judge to vary or rescind an order made by the district judge in the course of proceedings), and
(b) C.C.R. Ord.37 r.6 (which gives a right of appeal to the Judge from a judgment or final decision of the district judge),
shall not apply to the order or decision.
(2) Any order or decision granting or varying an order (or revising to do so) –
(a) on an application for ancillary relief, or
(b) in proceedings to which rr.3.1, 3.2, 3.3, 3.6 or 3.8 apply,
shall be treated as a final order for the purposes of C.C.R. Ord.37 r.6.
(3) On hearing an appeal to which para.(2) above applies, the Judge may exercise his own discretion in substitution for that of the district judge."
Held – refusing the application: (1) Under r 124 of the Matrimonial Causes Rules 1977 (now repealed) it had been the position that an appeal from a district judge was by way of rehearing at which the Judge applied discretion de novo and the evidence to be considered by the Judge was not confined to that which was before the district judge: see G (formerly P) v P (Ancillary Relief Appeal) [1977] 1 WLR 1376. Since 14 October 1991, when the Family Proceedings Rules 1991 came into force, the position was governed by r 8.1. By r 8.1(2)(a) an ancillary relief order was treated as a final order for the purposes of CCR Ord 37 r 6 which conferred a limited right upon the appellate court to interfere. The appellant must show grounds and the Judge exercised an appellate jurisdiction in accordance with the practice adopted by the Court of Appeal. The discretion to admit fresh evidence should be exercised sparingly bearing in mind that there should be an end to litigation, and it must be shown that the new evidence struck at or falsified the basis of the judgment or order under appeal: see Rundle v Rundle [1992] FCR 36.
G (formerly P) v P (Ancillary Relief Appeal) [1977] 1 WLR 1376 distinguished.
(2) In the present case, the husband sought to adduce fresh evidence as to the value of the former matrimonial home and of shares he held. At the hearing before the district judge, the wife called a valuer of the property. That valuer was available for cross-examination. The husband's valuer had given a written valuation. Having considered the evidence made available, the district judge had arrived at a conclusion as to the value of the property. The value of property was always open to different valuations and nothing had been suggested that any new evidence would strike at the basis of the finding in the court below. As to the value of the shares, the district judge had found them to be worth £1 each. Although the husband had given evidence that they were worth only 60p each, there was ample evidence upon which the district judge could find that they were worth £1 each. In the circumstances it...
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Marsh v Marsh
...ER 1099. Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745. Lauerman v Lauerman[1992] 2 FCR 497; [1992] 1 WLR 734. Merritt v Merritt[1992] 2 FCR 382; [1992] 1 WLR Walters v Walters[1992] 2 FCR 499. Additional cases cited and referred to in skeleton arguments:Barder v Calouri [1988] AC ......
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Horsman v Horsman ; H v H (Financial Provision: Application to Terminate Wife's Right to Periodical Payments)
...[1975] 3 All ER 333. Lauerman v Lauerman[1992] 2 FCR 497. McDonnell v McDonnell [1977] 1 WLR 34; [1977] 1 All ER 766. Merritt v Merritt[1992] 2 FCR 382; [1992] 1 WLR 471; [1992] 2 All ER Russell v Russell [1986] 1 FLR 465. Walters v Walters[1992] 2 FCR 499. Whiting v Whiting [1988] FCR 569;......