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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Foden v Foden [2001] EWCA Civ 1905 (22 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1905.html Cite as: [2001] EWCA Civ 1905

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION WITH APPEAL
TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Thursday, 22nd November 2001

1. THE PRESIDENT: This is an enormously lengthy case. It wouldbe very easy for me to give judgment for the next hour. For obvious reasons I am not going to do so because I do not think it would be helpful.
2. I start with some sympathy, as my Lord, Lord Justice Ward, has expressed, for the difficult financial situation in which the wife found herself in relation to her own parents and two houses subject to a considerable amount of litigation. I would make it clear that that litigation has no right to rebound upon the affairs between husband and wife.
3. The parties married in 1974. The husband was then 27 and the wife 37. They had lived together for some years before the marriage. They separated on 2nd January 1987 so that the married relationship was 12½ years although the wife has made the perfectly valid point that it lasted as a relationship for much longer. There were no children. The husband went to live with another woman.
4. The wife started judicial separation proceedings. On 11th April 1989 she obtained a decree of judicial separation. The husband applied for ancillary relief and the wife applied for ancillary relief. District Judge White took the view he had not been given the full facts by the wife, which is a very important finding in a case where full and frank disclosure is an essential part of the procedure. He decided that the matrimonial home - called Torcello - would be handed to the wife and the husband had to transfer the house to the wife on the payment to the husband of £15,000. There was to be nominal maintenance for the wife of 5 pence a year. At that time it was common ground between the parties on 17th July 1991 that there would not be a substantial order for periodical payments. It was not possible to have a clean break because under judicial separation that is not possible. The house has been lived in ever since by the wife. She has never paid the £15,000 she was due to pay. She was ordered to pay £4,000 by way of costs within 12 months. She did not pay it.
5. However she made the application to appeal the day after the hearing before District Judge White in 1991. As at the hearing before His Honour Judge Wigmore on 2nd March 2000, which is the matter before us, the wife had never brought to court her appeal against the order that District Judge White made. That order was nade 9 years ago. On the 2nd March 2000 the circuit judge heard a number of matters - a defended divorce based on 5 years separation which was hotly contested. There was an application by the husband to set aside the application to appeal by the wife for failing to pursue that application. The judge was asked by the wife to adjourn the hearing. There have been numerous occasions when the proceedings of one sort or another have been adjourned. On this occasion the circuit judge decided that there would not be an adjournment of that hearing. He had previously been invited to make a number of adjournments. The wife had made various appeals, various applications, and there is a long and convoluted history of applications to the court, none of them coming to any particular effect and applications to the Court of Appeal. But still she did not bring her appeal against the order of 17th July 1991.
6. On 1st March 2000 she sought an adjournment of the hearing of 2nd March. That was against the background of Lord Justice Ward, sitting with me, refusing permission to appeal against two orders of His Honour Judge Wigmore of 12th August and 17th December. On 2nd March her application was considered by Judge Wigmore and he refused to grant it. The wife did not attend court. He gave judgment on that. He made various orders with the intention of achieving - 9 years after these matters had come to court - a clean break between the parties in every sense of the word, the grant of a decree nisi of divorce, striking out the wife's notice of appeal against the ancillary relief order of District Judge White, handing over some £20,000 plus interest which had been held in an account which was the balance of money held by the husband's solicitors. He said that the wife was to pay the husband £1 by way of lump sum forthwith to show that the ancillary relief proceedings had been dealt with under divorce as well as under judicial separation. He made the decision that neither party should bring a claim under the Inheritance (Family Division) Act 1975. He ordered the wife to pay £10,000 by way of costs to the husband.
7. The wife appealed those orders by way of application for permission. That application for permission came before

Lord Justice Thorpe.

8. Lord Justice Thorpe held in relation to every aspect except ancillary relief that they should not be permitted to proceed. However he was concerned about the way in which His Honour Judge Wigmore had dealt with the periodical payments question because, having had an order of 17th July 1991 for a nominal order on the basis there would not be any maintenance paid, there was about a year later an order that the wife should get £30 a week. That order had continued although there had been applications to vary upwards and downwards until the hearing before His Honour Judge Wigmore. His Honour Judge Wigmore in his attempt to create a genuine clean break between the parties brought that maintenance order to an end. Lord Justice Thorpe was concerned about that aspect of the case. For that purpose he permitted the application in relation to ancillary relief post-decree nisi to come before this court.
9. It came before a constitution of Lord Justice Jonathan Parker and myself on 14th March 2001 in what appears to be called the Divisional Court but it was the Court of Appeal. On that occasion Mrs Foden represented herself. She found it difficult to understand why we were tied to the particular decision of Lord Justice Thorpe. We were unable to go behind it, nor did Lord Justice Jonathan Parker and myself have any desire to go behind it. We assumed at that hearing that the purpose of the order of His Honour Judge Wigmore was genuinely to bring to an end the financial circumstances and all other circumstances of the parties. We read the sentence in judge Wigmore's judgment which said:

"I have come to the conclusion that a fair order here would be for there to be a clean break from the financial circumstances of both parties. I see no point in making an order for any capital, because neither party, on the information before me, has any means of meeting a capital order.

So far as maintenance payment is concerned, it does not seem to me that Mrs Foden, given her strong capital position in 1991, is really a person who ought to be given a maintenance payment."

10. He went on to dismiss that as well.
11. At the hearing before us we discovered that Mr Meeke QC and his client, the husband, were of the view that the clean break order of Judge Wigmore did not include the payments due and not paid under the order of 17th July 1991. We were both concerned about that. Although we were about to give judgment on the basis of a clean break order, and therefore we would not grant permission to appeal, once we discovered that there might be hanging over Mrs Foden's head a £19,000 order together with another £10,000 by way of further costs, we felt that might be unjust to Mrs Foden. In order to assist Mrs Foden we did not make a decision on the last occasion. We said we wanted Mr Meeke to consult his client and to find out if his client would agree that there should be in every sense a clean break and that he should not seek any further money from Mrs Foden and that he would hand over the house to her. He would do his part in transferring it to her and in reply there would be nothing further in the courts.
12. I have to say that Mr Meeke has acted well beyond what was necessary for counsel to do in this case and he has conscientiously repesented his client on every single occasion and his client should be very grateful to him. He went away and obtained from his client an undertaking that if all proceedings were finished there would be no further claim by him on Mrs Foden in respect of considerable sums of money due by her to him - and due on the house. So that if he wished to be difficult he could have claimed that something should be done about Torcello. At the end of the road there was always the possibility that Torcello might be sold to pay what he was due. That was overlooked.
13. The effect of that would be that the order of the district judge would stand subject to the husband receiving none of the money from the house, (the £15,000). The major part of the whole of the capital of the family would go to the wife but she would not get further maintenance from him. Mr Meeke's client agrees the case has come back today just to complete that part of it and for us to give judgment. We had the advantage of experienced counsel representing Mrs Foden, effectively, half-way through a case. He assumed - and I can understand why - that he would be given a free run to go through the case again. We have given an opportunity for him to consult with his client if he wanted, which seemed the most sensible way to proceed.
14. It is clear she is unhappy with any situation other than the opportunity to be heard again on the application for permission to appeal. We have given her that opportunity through Mr Sharp who has made, in short, an extremely concise and extremely efficient submission on what he thinks is his client's case together with his skeleton argument that I had the opportunity of reading when it came in today. Although we had intended - Lord Justice Ward who is now sitting with me who has read all the papers and has the feel of this case - that we would merely hear the brief submissions of Mr Meeke to support his client and anything Mrs Foden wished to add, we have gone back to the beginning of the question of leave to appeal in respect of the ancillary relief. It is that to which I am about to turn and consider.
15. The problem is that the financial arrangements between the parties were decided in 1991 under judicial separation. Technically, because there has been a divorce there is the ability to reconsider them. Lord Justice Thorpe made a very relevant point, which I respectfully endorse, that the determination of the district judge was not only within the discretionary bounds, I cannot imagine any judge having ordered otherwise. The application for permission in respect of appealing against the order of 17th July is, as Lord Justice Thorpe said, hopeless. That is the order that effectively governs family proceedings at this stage because there had not been - other than maintenance - any major change in the situation. The order was clearly right on 17th July 1991.
16. Both parties had a home. The husband has an income of around £24,000-£25,000 a year. The wife only has an income of about £8,000. She has had the major benefit of the family assets. The husband, as a retired police officer, received a gratuity. Much of the money of his gratuity went on the costs of these endless proceedings they have had. He has never had a penny out of the house. The only money that might be available is £20,000 held by the solicitors for the husband.
17. Mr Sharp points out that there has been no proper assessment of the husband's ability to pay a lump sum: he has an interest in Mrs Small's property that has not been explored - she may be Mrs Foden no. 2, that the husband had enough money to make contributions to other mortgages, there were potential financial figures that ought to have been explored by the judge and were not explored. He recognises in seeking a lump sum payment that was not made in 1991 - it was made on the other side against the wife - that the money available in court is £20,000. He recognises that the wife owes £29,000 and recognises, in effect, that this would be an accounting process and so far as the lump sum is concerned she would not get a penny out of it.
18. He said that the judge has made mistakes: he did not set out his balancing exercise, his judgment is deficient in various ways, he went ahead when the wife was not present and the case was not fairly heard. We have to bear in mind that this is a case that has been chuntering on for 10½ years. It is not surprising if a circuit judge seeks to take a rather robust view of the endless applications coming before him.
19. The only issue remains whether or not because of the imbalance of income of the wife against the husband - the husband at £24,000 to £25,000 and the husband's new wife or partner having her own pension - should Mrs Foden get any money? I have no doubt if we gave leave to appeal the only thing we could do would be to send it back for a further hearing, that the fact the wife is in contempt by not paying £15,000 - although that point has never come up - but she is in breach of a court order of considerable importance, that she has at a time when she might have been able to pay not made any effort to do so and that the major part of the assets of the parties were handed to her and with the undertaking of Mr Meeke's client that he will not seek to be paid £29,000, her claim to ancillary relief by way of periodical payments would stand as being difficult to achieve.
20. I do not think she has any realistic prospect of obtaining an order of maintenance in the circumstances and with the whole of the history of this case. Permission to appeal requires this court to consider what are the prospects of success. In my view Judge Wigmore gave a robust and sensible decision in a long running case which has no strength to go on to the future. I am satisfied that there was no prospect of ever giving the wife permission to appeal.
21. The points raised by Lord Justice Thorpe - perfectly valid points on an ex parte application, as it was, with the respondent unrepresented - do not have the same force once an inter partes hearing with two judges and the very considerable degree of information we were given on the last occasion which, through lack of time and lack of need to express in detail, I have not set out in this judgment.
22. I am entirely satisfied it would be inappropriate in the present case to grant permission to appeal on ancillary relief and the order made under the judicial separation is the order that should govern the capital situation of the parties subject to the forbearance of Mr Foden not to seek to be paid. In the circumstances of his forbearance and not getting £29,000 besides the costs he has incurred all these years, it would not be appropriate further to pursue the periodical payments application.
23. I would therefore dismiss this application for permission to appeal.
24. LORD JUSTICE WARD: I agree.
Order: Application refused on basis of Mr Foden not seeking to enforce terms of undertaking with costs to be paid by Legal Services Commission. Legal aid assessment.