Re C (Rehearing: Procedure)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Family Division |
THORPE, J
Ancillary relief – non-disclosure – application for leave to appeal out of time from decisions of district judges to Judge – whether appeal is the appropriate course for a party wishing to reopen a decision on the basis of some vitiating fact such as non-disclosure.
Divorce proceedings were commenced in 1975. In 1979 the registrar made a substantive ancillary relief order requiring the husband to pay the wife a lump sum of £10,000 within 60 days, together with periodical payments of £4,000 per annum less tax.
In 1985 the periodical payments were varied by a registrar to £6,500 per annum less tax. In 1987 the registrar ordered a further variation by consent to £8,000 per annum less tax.
By 1992 the wife had discovered evidence to indicate that at all material times the husband was the seller and had investment control over a Liechtenstein family trust, had longstanding dealings with a Zurich bank and was a member of Lloyds with over £250,000 on bank deposit in 1990. None of this had been disclosed by the husband during the earlier applications. Relying on the procedure approved by Ward, J in BT v BT [1990] FCR 654 the wife applied to the Judge for leave to appeal out of time against the registrar's orders.
Held – The wife had shown a strong prima facie case which was the required test in an application for leave to appeal. In the circumstances, leave to appeal out of time would be granted. However, the application for leave to appeal and the appeal itself was not strictly necessary. Where an order had been made by a Judge of the Family Division and had been secured by some vitiating factor, such as non-disclosure, there was no restriction upon the right of the aggrieved party to reopen the proceedings by the issue of a simple Judge's summons for which no leave was required. Similarly, where the order had been made by a district judge the matter might be reopened before him but would usually raise matters which would make a transfer to the Judge appropriate. Any abuse of the procedure would lead to a costs penalty.
Cases referred to in judgment:De Lasala v De Lasala [1980] AC 546; [1979] 2 All ER 1146.
Robinson v Robinson [1982] 1 WLR 786; [1982] 2 All ER 699.
BT v BT [1990] FCR 654.
Additional cases cited and referred to in skeleton argument:Livesey (former Jenkins) v Livesey [1985] AC 424.
Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449.
The Ampthill Peerage [1977] AC 547.
Barder v Barder [1988] AC 20.
Thompson v Thompson[1992] 1 FCR 368.
Twiname v Twiname[1992] 1 FCR 185.
Pearce v Pearce (1980) 1 FLR 261.
Desai v Desai [1983] 13 Fam...
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