Walters v Walters
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Year | 1992 |
| Court | Family Division |
THORPE, J
Appeal – from district judge to Judge – power of Judge – whether Judge bound by decision of court below unless it could be shown that court below had erred – appellate court entitled to substitute its own discretion for that of court below.
In an application for ancillary relief a district judge made property transfers. He found that the husband had deliberately concealed the receipt of £19,000 and had falsely claimed that he had used it to repay a loan. He ordered the husband to pay £2,500 as a contribution towards the wife's costs.
The husband appealed against the order to pay a contribution towards the wife's costs.
Appeals from a district judge to a Judge are governed by r 8.1 of the Family Proceedings Rules 1991 which provides:
"(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 the 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 refusing to do so) –
(a) on an application for ancillary relief, or
(b) in proceedings to which rules 3.1, 3.2, 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 – Rule 8.1 of the Family Proceedings Rules 1991 did not confine the Judge to determining an appeal on the basis that the district judge saw and heard the witnesses, reached
clear conclusions of fact, and could not be shown to have erred in any way in determining the issue. The Judge would ordinarily adopt the evidence before the district judge and his conclusions in relation to that evidence unless there were good reasons for reopening that stage of the investigation. Equally, the Judge would not ordinarily admit additional evidence unless there was good reason to do so. But the Judge was free to substitute his discretion for that of the district judge even if adopting all the district judge's findings on the evidence below.
Merritt v Merritt [1992] 2 FCR 000 not followed.
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