B1/2001/1791
Neutral Citation Number: [2001] EWCA Civ 2037
IN THE SUPREME COURT OF JUDICATURE       
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(His Honour Judge Ryland)
							Royal Courts of Justice
							Strand
							London WC2

							Monday, 17th December 2001
B e f o r e:

LORD JUSTICE THORPE

- - - - - -

VALJI KANJI KALYAN

Petitioner/Applicant
- v -

URMILA VALJI KALYAN

Respondent
- - - - - -
(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
- - - - - -

MR JAS CHHOTU (Instructed by Henneberry & Co, 115 Buchanan Gardens, London, NW10 5AA) appeared on behalf of the Applicant.

The Respondent did to appear and was unrepresented.

- - - - - -

J U D G M E N T

Monday, 17th December 2001 
1.	LORD JUSTICE THORPE: This is a renewed application for permission to appeal brought by Mr James Chhotu on behalf of Mr Kalyan. Beneath the application lies a very sad state of affairs. Both the husband and the wife are disabled. They married in 1981 and since their separation there have been contested proceedings in the Willesden County Court. The wife sought and obtained an order expelling the husband from the final matrimonial home on the grounds that she had been victimised by him and his parents and exposed to pretty gross sexual abuse. Seemingly, although an order was obtained without notice, the husband accepted the wife's entitlement because he did not promote a defended hearing on her applications. Instead, he filed on 8th January 1999 a petition for dissolution, relying on the wife's conduct. It is an unusual pleading, because the particulars of conduct in paragraph 10 are largely recitals of history that disclose no sort of fault or misbehaviour on the part of the wife. The first hint of misbehaviour on her part in the pleading is the assertion in paragraph 10(k) that she made a series of false allegations in order to obtain an order expelling him from the home; but, even then, the whole flavour of the pleading is that the villains of the piece were not the wife but her brothers, who were taking advantage of her disability to use her as a pawn. 
2.	When this pleading came before District Judge Cohen he was puzzled at the obvious inconsistency between a husband's seeming acceptance of a case deserving his expulsion and then his relying on a petition asserting that the case against him was a false one, so he called the parties and their solicitors in. He arranged that there should be interpreters as he was anxious to ensure that both of them understood what was going on. The note shows that the solicitor acting for the wife, Mrs Beckford, advanced to the District Judge the explanation that she did not defend the petition because she could not get legal aid. Mrs Beckford said to the District Judge: 
“[The wife] was fully advised. But she accepted that the marriage was broken down irretrievably. She wanted to proceed with Ancillary relief.” 
3.	At page 16 the judge said: 
“What I was proposing to do, in the event an explanation was forthcoming, was to record that explanation e.g. that [the wife] does not accept the allegations but consents to the divorce.” 
4.	At page 17 Mrs Beckford repeated that 
“[The wife] was fully advised. But she accepted that the marriage was broken down irretrievably. She wanted to proceed with Ancillary relief.” 
5.	On that basis the District Judge said that he was satisfied to grant a certificate and that the matter could accordingly proceed to decree nisi on an early occasion. 
6.	Subsequently, the ancillary relief proceedings were instituted. There was a first appointment in August 2000 at which it was clear that the issue of conduct not litigated in the suit would be, or might be, litigated in the ancillary relief. The judge on that occasion accordingly took the unusual step of adjourning the case to District Judge Cohen to determine to what extent it was open to the parties to litigate the conduct issue in the ancillary relief after the pronouncement of a decree nisi on the allegation that the wife, manipulated by her brothers, had brought a false case in order to try to oust the husband and his parents from the property. District Judge Cohen answered the conundrum posed by his brother District Judge by saying that he was quite clear that the progress and determination of the divorce petition did not inhibit the parties from raising issues of past behaviour in the ancillary relief. 
7.	The husband was dissatisfied and appealed to the Circuit Judge, Judge Ryland, who confirmed the order of District Judge Cohen. Mr Chhuto, then on behalf of the wife, sought permission to appeal. That application came to me on paper on 21st November when I provisionally refused, saying 
“This is a second tier appeal caught by section 55 of the Access to Justice Act 1999. I do not consider that the application raises an important point of principle or practice nor is there any other compelling reason for an appeal. Furthermore I am of the opinion that both the district judge and the circuit judge were correct in law in reaching the conclusion that the wife was not estopped by the dissolution of the marriage on the husband's petition.” 
8.	I have heard Mr Chhuto argue his case forcefully and eloquently. I yet remain of the same opinion. There has been for many years a practice, certainly since the enactment of the Divorce Reform Act 1969 and the Matrimonial Proceedings Act 1973, whereby the parties elect to defer judicial investigation of past behaviour from the divorce proceedings to the ancillary relief. That is for the perfectly sensible reason that both of them probably want the dissolution, and the ancillary relief arena seems therefore the more rational. Obviously in the ancillary relief arena there is much discouragement of the unnecessary investigation of issues of past behaviour. So I am quite satisfied, having looked at the note of what proceeded on 29th December before District Judge Cohen, that here the solicitor for the wife was saying, “My client is quite happy for the marriage to be dissolved on the husband's petition. She cannot get legal aid to defend it anyway. She wants to get on to the ancillary relief.” It may be that another solicitor would have spelt it out more specifically and made a better reservation of her client's right to raise suggestions of victimisation, but it seems to me that Mrs Beckford did just enough to preserve her client's position. 
9.	I do not consider that this application discloses a point of law or principle of sufficient dimension to warrant the grant of permission. Nor do see any other compelling reason. Indeed, I can see fairly compelling reasons to prevent this family wasting money on expensive proceedings in the Court of Appeal. In the end, if there is to be a contest on ancillary relief, somebody has to pay for it. It seems that the husband has got legal aid. The inference must be that there is not a lot of money about. There is an obvious risk that either the taxpayer or the family is going to be exposed to ancillary relief costs that are quite disproportionate to the amounts at stake. It seems to me that the parties would be sensible to endeavour to negotiate some sensible conclusion, and certainly there is an obligation on the lawyers to guide them in that direction. I have no hesitation at all in confirming the provisional refusal given in writing on 21st November. 
10.	For all these reasons, this application for permission is dismissed. 
Order: Application dismissed. Public funding assessment of the Applicant's costs.