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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 >> Ondapbergenova v Bramley-Fenton [2001] EWCA Civ 744 (9 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/744.html Cite as: [2001] EWCA Civ 744

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Munby QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 9th May 2001

1. LORD JUSTICE THORPE: This is a renewed application for permission to appeal in what was an extremely difficult case in the Family Division. It was the job of the judge to decide an impossibly difficult question as to which of the spouses should have the exclusive use of the former matrimonial home. The respondent had an outstanding claim because it had been his home for many years. It was also necessary for his professional life as a photographer. Equally, the petitioner had a strong claim because she needed a roof for herself and the child who was attending local school. Whoever lost was going to suffer great hardship.
2. The issue came before the district judge who decided in favour of the respondent. The mother appealed. The judge, in the exercise of his free discretion, reached the other conclusion. The application for permission to appeal came before me on paper and I gave my reasons for refusing it on 2nd April. Mr. Grey has exercised his right to an oral hearing, but nothing that he has told me this morning invalidates any of the points which I made on 2nd April. Furthermore, there is an overwhelming difficulty for Mr. Grey which I did not advert to in my written response of 2nd April. It is that the operation of section 55 of the Access to Justice Act 1999 catches the application. Section 55(1) reads:

"Where an appeal is made to . . . the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal . . . unless the Court of Appeal considers that -

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it."

3. That section was enacted to ensure that, if a case receives an appeal hearing in front of a High Court judge, it cannot travel higher into the system unless there are exceptional reasons. I have great sympathy for the respondent in this case. From his point of view this is a searingly hard conclusion. But I have to uphold the intention of Parliament. I have to apply section 55 and I cannot in all conscience say that an appeal would raise an important point of principle or practice or that there is some other compelling reason for the court to hear it. Many of the complaints made by Mr. Grey go to the introduction of evidence by the wife at a late stage of the hearing before the judge. In that instance the remedy is an application for an adjournment. If that application for an adjournment is refused, then this court might, in the exercise of its discretion, take a different view if this court felt that there had been fundamental injustice. But the problem here is that there was no application for an adjournment. The evidence went before the judge. Although it was hearsay, in some instances in the form of written reports, the judge was entitled to give it some weight. For all those reasons this application fails and must be dismissed. I do wish to make it plain to the respondent, who has taken the trouble to attend this hearing, that I fully understand what an absolutely bitter conclusion this must be.
Order: Application refused.