B1/2001/0248

Neutral Citation Number: [2001] EWCA Civ 1434
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(His Honour Judge McDowall)
								Royal Courts of Justice
								Strand
								London WC2

							Friday 14th September, 2001
B e f o r e:

LORD JUSTICE THORPE

LORD JUSTICE LONGMORE

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SAL PAL GOSAIN
Petitioner/Applicant

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USHA GOSAIN
Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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MS UR SOOD (Instructed by Messrs Moss Solicitors, Loughborough) appeared on behalf of the Applicant

MR Z MIAH (Instructed by Messrs Lloyd Brennand Solicitors, Brentford TW8 8AH) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE THORPE: On 8th December 2000 His Honour Judge McDowall sitting in the Wandsworth County Court refused the husband's application for an adjournment of the hearing of his appeal from the ancillary relief order made by District Judge Plaskow sitting at the Brentford County Court on 19th March 1999. The husband applied to this court for permission to appeal that discretionary refusal and the subsequent dismissal of his appeal, and that application came before the court without notice on 28th June. 
2.	As the single judge I delivered a short judgment explaining to the wife's advisers why it was that I was adjourning the application for hearing on notice with appeal to follow if permission granted. The explanation was of immediate value to the wife, since fortuitously a representative of her solicitors had attended the without notice hearing on 28th June to take a note. 
3.	The only point that impressed me in the husband's application was the reliance on recent evidence that, contrary to her sworn testimony before the District Judge, the wife retained the ownership of a flat in Delhi, the evidence of retention being documents dated 7th February 2001 which seemed to establish payment by her of continuing ownership obligation payments, by way of I know not what service charge or whatever, in respect of the property. 
4.	At this second hearing Mr Miah appears for the wife, having put in a steady stream of documentation between 6th September and this morning. I looked through his so‑called respondent's notice of 6th September and failed to find anything in it that answered the crucial point made against her. Equally, I found little in the skeleton arguments that he submitted that seemed to face up to the one point that told against her. 
5.	This morning Mr Miah has lodged with the court an expanded version of the so‑called respondent's notice of 6th September. Towards its end is what is said to be a statement by the wife, although I note that the copy before me is neither signed nor dated, and in paragraph 3 she reiterates her case in relation to the New Delhi flat: her case being that, whilst she admits its purchase in 1990, she asserts its unconditional sale in January 1994. There is not a word in that statement about the key crucial point, namely the seeming continuing payment of outgoings in relation to the property which, if established, would be completely inconsistent with unconditional sale in 1994. 
6.	Mr Miah says as a last line of defence, “Well, even if the truth is that the wife continues the owner, it is only worth £6,000 and therefore would have no impact on the broad‑brush discretionary division of capital ordered by District Judge Plaskow.” That point would perhaps prevail in many cases, but in my opinion fails in this since the District Judge identified at the outset of his judgment that the major dispute in the case was whether ancillary relief should be awarded to the wife so as to enable her to remain in this country or on the basis that she should return to India. It is almost too obvious to say that if the wife had, contrary to her sworn evidence, not burned her boats in 1994 but throughout retained the ownership of a home in New Delhi, that must impact upon the determination of the prime issue in the case. 
7.	As a last-ditch appeal Mr Miah says, “Well, my instructions are that the documents at page 187 and 188 are forgeries. I have, furthermore, some e‑mails here which have not yet been disclosed to the other side or produced to the court, and receiving evidence of property ownership in India is tortuous and difficult, so please order another hearing in this court within, perhaps, 21 days so that in the interim we can assemble conclusive rebuttal evidence.” 
8.	I am not prepared to take that course. First and foremost, the wife has had every opportunity to rebut the crucial documents. Her advisers have known of this point squarely since 28th June. If they have not produced anything in nearly three months, what likelihood is there of their producing anything given another three weeks? 
9.	Furthermore, I am anxious that all we would achieve would be to increase the costs in this court, since I hardly think that any document that emerged within a further three weeks would be sufficiently conclusive. It would still leave open the resolution of the question: are the seemingly probative documents at pages 187 and 188 forgeries or no? That is better determined by the court of trial than by this court. 
10.	I have reached the conclusion that the husband is entitled to permission to appeal and he is entitled to succeed in his appeal. There is absolutely no criticism of Judge McDowall who, on the material before him, quite rightly took the course which he did. It is only the recent discovery of what seems to have been a maintenance payment on 7th February 2001 that makes it necessary to revive proceedings in the court of trial. However, at this stage the revival should be a limited revival. 
11.	I would set aside the order of Judge McDowall and direct a retrial in the County Court ‑ not at this stage of the whole issue ‑ I would simply direct a limited trial of the issue of fact of whether or not the wife continues to be owner of the property at Kondli Gharoli in New Delhi, the property which she admits to have purchased on 14th March 1990 for nearly 130,000 rupees. If the answer to that question is “yes”, then the court should decide whether that continuing ownership is sufficiently significant to entitle the husband to a re‑evaluation of his capital obligations towards the wife. As I have pointed out to Mr Miah, we are not in the territory of the decision of the House of Lords in Barder v Barder [1987] 2 FLR 480. We are in the territory of the decision of this court in Robinson v Robinson, which makes plain that any ancillary relief order shown to be vitiated either by dishonest evidence by one of the parties or by breach of the duty of full and frank disclosure may be set aside in the discretion of the court and replaced with some other order. 
12.	It would seem to me sensible that the retrial should be conducted by the District Judge, District Judge Plaskow, if he is available. I do not know anything of the arrangements in either the Wandsworth or the Brentford County Court. 
13.	MRS SOOD: My Lord, if I can be of assistance, I understand he still sits there. 
14.	LORD JUSTICE THORPE: Then I would propose that it goes to him if he is available. That then is how I would propose to dispose of the case this morning. 
15.	LORD JUSTICE LONGMORE: I agree. 
ORDER: Application for permission to appeal granted; appeal allowed and the case remitted to District Judge Plaskow for a retrial; no order for costs.
(Order not part of approved judgment)