B1/01/0582

Neutral Citation Number: [2001] EWCA Civ 1495
IN THE SUPREME COURT OF JUDICATURE                            
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(Mr Recorder Greenwood)
                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Wednesday, 3rd October 2001
B e f o r e :

LORD JUSTICE WARD

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JOHN EMRYS POWELL

‑ v ‑

MARGARET ELAINE POWELL
Applicant
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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171‑421 4040
Fax No: 0171‑831 8838
Official Shorthand Writers to the Court)
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THE APPLICANT appeared in Person.

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J U D G M E N T
1.	LORD JUSTICE WARD: This is an application made by Mrs Powell for permission to appeal against an order made by Mr. Recorder Greenwood in the Gloucester County Court on 7th February 2001. By that order a property known as Mill End House in Mitcheldean, Gloucestershire, was to be sold subject to the terms of an agreement annexed to the order, with each party having liberty to apply, and the proceeds of sale were to be divided equally between the claimant and the defendant, save that some £16,750 had to be paid by Mrs Powell to Mr. Powell in full and final settlement of the parties' claims to equitable accounting. Among the terms in the schedule of agreement which are particularly material for this application is condition 4, that the defendant, Mrs Powell, pay £1,500 into a joint solicitor's account on or before 1st March 2001.
2.	The important thing to note about this order is that it was an order made by consent. That presents formidable difficulties for Mrs Powell to overcome in order to appeal against it. She is a day or two late in making her application but I am prepared to ignore that.
3.	The background is this. Mrs Powell lived with the claimant, Mr. Powell, though they never married, from about 1967 until a date which is a little uncertain for me to determine, but probably about 1986. Elsewhere it is suggested 1990. 1990 was the date of a serious assault that Mrs Powell alleges was committed on her by Mr. Powell, when she suffered serious head injuries.
4.	The parties moved into Mill End House in about 1979 and the conveyance of that property declared that they held it as beneficial joint tenants. Mr. Powell has subsequently severed that tenancy so that they now hold as tenants in common. The property was subject to a mortgage, the building society having been overtaken by the Abbey National Building Society. There are four children of this relationship, four boys ranging in age from 33 to 25. Eventually, in about 1995 probably, these proceedings were brought by Mr. Powell, seeking an order for the sale of that property and the equal division of the proceeds under the relevant law at that time, section 30 of the Law of Property Act 1925. Concurrently with that but independently of that ‑‑ it is important to observe that it is quite independent of this litigation ‑‑ the building society took proceedings to recover the arrears that had been accruing under the mortgage. They obtained a possession order which was enforced in January 1998. I have no doubt at all that the eviction was deeply distressing for Mrs Powell. She eventually applied to this court. In one way or another ‑‑ it does not matter how ‑‑ it seems that Mr. Powell used an inheritance from his father's estate to discharge the mortgage arrears, paying just under £32,000 to redeem the mortgage, and so the parties hold this property unencumbered at the moment, but because of the lapse of time, because of events the details of which I know not, the property is in a total state of disrepair at the moment and is virtually unsaleable as it is. The parties will suffer a severe loss as a result. The contemplated agreement embodied in the order envisages that Mrs Powell might wish to obtain a planning permission to exploit the advantages that the property may have for development. It also enables the parties to jointly appoint an expert to make the house habitable. None of that seems to have been successfully achieved.
5.	What is Mrs Powell's complaint? It is that she was not given the opportunity to speak to the Recorder. Of course she was not given the opportunity because it was a consent order. She had solicitors and counsel who were there to do the talking on her behalf. She says that she was not fully informed about the negotiations or of the detail of the order. She complains that the respective legal teams disappeared into a room on their own and she was left in the dark. She did, however, see the draft agreement for five minutes before it was placed before the judge. Unfortunately, all of this does not matter. If she was not fully informed, if she did not have £1,500 to pay into the account and told her advisers, those are matters which may ‑‑ I emphasize may ‑‑ give rise to a complaint about the way in which they have conducted matters on her behalf, but they do not entitle this court to overturn the consent order. Her remedy is elsewhere.
6.	What, she asks me, can she do? It is not for me to give advice. The practical reality is that this family appear likely to be suffering a substantial loss of a substantial asset, and unless the family can sit down together and explore the prospect of restoring the property, claiming from any insurance that may be helpful to reimburse the cost of the disrepair in the property, unless they act together in a co‑operative manner and the boys join in that joint endeavour, then they are likely to suffer. All of those are not matters for this court. They are matters for the family. I cannot help. There is no reasonable prospect whatsoever of this appeal succeeding. It is hopeless and I have no option but to dismiss this application.
Order: Application dismissed.