B4/2004/2102
  B4/2004/2102(A) 
Neutral Citation Number: [2005] EWCA Civ 1665
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM READING COUNTY COURT
(HER HONOUR JUDGE CAMPBELL)
Royal Courts of Justice 
Strand 
London, WC2A 2LL 

Friday, 14 October 2005
 
B E F O R E:

LORD JUSTICE JONATHAN PARKER 
 
LORD JUSTICE WALL 
  
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JOANNA ELIZABETH SEALY
Claimant/Respondent
-v-
 
RICHARD SEALY 
Defendant/Appellant 
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(Computer-Aided Transcript of the Stenograph Notes of
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MR PEDDIE QC (instructed by Messrs Barrea & Co) appeared on behalf of the Appellant
The Respondent did not attend and was not represented
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J U D G M E N T
1.	LORD JUSTICE JONATHAN PARKER:  I will ask Lord Justice Wall to give the first judgment.
2.	LORD JUSTICE WALL:  This is a renewed application by Mr Richard Sealy for permission to appeal against orders made by HHJ Campbell, sitting in the Reading County Court, on 17 September 2004.  The judge was sitting in an appellate capacity.  She was hearing an application in an appeal by Mr Sealy against orders made by District Judge Fortgang in the ancillary relief proceedings which were consequent to the dissolution of the marriage between Mr Sealy and his former wife, Joanna Elizabeth Sealy. 
3.	Mr Sealy wished to adduce evidence which had not been before District Judge Fortgang.  The judge refused that application and indications were given in the order she made as to various courses of action which may or may not be followed, were the appeal to be pursued.  In fact the appeal did not take place; it has been overtaken by the application for permission to appeal against Judge Campbell's refusal of permission to adduce fresh evidence.  This was an application for permission to appeal which was initially refused by Thorpe LJ on the papers on 9 March 2005 on the ground that the application before the judge was, in effect, a directions order regulating the preparation for the forthcoming appeal before her.  The judge had exercised a discretion in relation to that and Thorpe LJ took the view that there was no prospect of a successful appeal being launched against that exercise of discretion.
4.	Mr Peddie QC renews the application this morning.  At an early stage in the argument I interrupted Mr Peddie to consider with him whether in the particular circumstances of this case the appellate route was the correct one.  In order to explain that interruption I need, I think, to go back in history to look at the progress of the proceedings for ancillary relief which followed the dissolution of the parties' marriage. 
5.	The first order of importance is the order made on 21 March 2001 by District Judge Sonnex. According to that order, Mr Sealy was directed to transfer the former matrimonial home, a property in High Wycombe, to his former wife, and was ordered to pay £800 a month by way of maintenance pending suit, and periodic payments.  There is a judgment of the district judge in our papers which shows that it was, as one would expect from a district judge of his experience, a carefully considered decision.  However, the main issue in the case was whether or not Mr Sealy had given full, frank and clear disclosure and whether he had hidden assets. The district judge concluded that he had sufficient income to pay an order for £800 a month but did not otherwise find the allegations of non-disclosure substantially proved.  In any event the judgment is available and can be read.
6.	Following the order made by the district judge there were cross-applications for variation.  Mr Sealy in the event did not pursue his, but due, he says, to loss of employment he fell behind with the order for periodical payments.  The consequence was that various orders were made, including an interim charging order on his property of 7 November 2001; and on 23 July 2002, following a substantive hearing, District Judge Fortgang made a final charging order in two sums - £15,219 and £7,200 - which were arrears of periodical payments.  He also capitalised Mrs Sealy's maintenance at £28,800.  Once again the judgment of the district judge is available.
7.	It was against the latter order which Mr Sealy sought permission to appeal.  He obtained a stay from District Judge Parker on 31 October 2003 and after orders for directions his application to adduce fresh evidence came before HHJ Campbell on 17 September 2004.
8.	The position which appeared to some extent before Judge Campbell, but which appears more clearly before us, is that it is now Mr Sealy's case (and indeed I think has been throughout) that his former wife herself has failed to give full, frank and clear disclosure of her financial position; and that indeed she failed to do that before District Judge Sonnex in March 2001.  She is by occupation a hairdresser.  District Judge Sonnex, making the first order, estimated that she could make a modest amount from her occupation, and calculated the periodical payments accordingly.  Mr Sealy's case now is that the district judge was misled in 2001; that his former wife was then earning and has ever since earned very much substantially more than she admitted either before District Judge Sonnex or before District Judge Fortgang.  His case is, therefore, that there has been material non-disclosure on her part.

9.	We have before us an application to adduce fresh evidence in this court which largely goes as to Mrs Sealy's alleged income and the amount which it is calculated she is earning from her employment as a hairdresser.

10.	Against that background, it seemed to me on reading the papers that, whilst I fully understand why Mr Sealy had gone the appellate route - and in particular he was anxious that he might lose the opportunity to put in the evidence which Judge Campbell had excluded - nonetheless if his case was that the orders of March 2001 and July 2003 had been obtained through material non-disclosure by Mrs Sealy, the proper course was not to seek to appeal Judge Fortgang's order, but to go back to the district judge (either Judge Sonnex or Judge Fortgang) and seek to set aside the orders which had been made on that ground, namely, material non-disclosure.  The reasons I took that view were essentially twofold.  First, as a matter of jurisdiction, this seems to me plainly a case which, if it has merit, will need to be dealt with by a judge on evidence.  It is quite impossible for anyone exercising an appellate jurisdiction (whether this court or indeed a circuit judge) to deal with factual issues of this nature on appeal.  Secondly, both in terms of practicality and finance, if this case requires (as I believe it does) a hearing when the issues can properly be determined, it would be much better for that to be done at one hearing than in a succession of applications.  I think one can test that proposition by looking at what would happen were we today to consider the matter in conventional terms.  Almost certainly, I think the best that Mr Peddie could hope for today from us would be that we would adjourn the application for permission to be heard on notice to Mrs Sealy so that she could see and comment on the additional material that has been provided.  Assuming that the permission application led to a successful appeal (and of course they could be listed together), it is, I think, almost certain that this court will have to remit the case to the circuit judge for consideration.  The circuit judge would almost certainly be bound to direct a retrial if he or she thought that the appeal from District Judge Fortgang stood a reasonable prospect of success and therefore the matter would then have to go either to the judge or district judge for proper hearing on evidence, in addition to which I anticipate that Mr Sealy might well wish as an insurance policy to make an application to vary or discharge the periodical payments order - which also would have to be heard on evidence.  

11.	So on any view if the appellate route is taken and Mr Sealy is successful, three or four hearings would be required before the matter was finally resolved; whereas on the setting aside route it is to be hoped that one full evidence hearing on proper evidence with appropriate discovery should enable the court to consider whether or not the previous orders were obtained as the basis of material non-disclosure, and whether or not they should properly be reviewed and revised.  

12.	Having taken the opportunity to consider the dialogue, Mr Peddie has now told us that he accepts that the more appropriate course would be to withdraw the application for permission to appeal and to go the setting aside route.  

13.	In those circumstances, speaking for myself and having effectively encouraged Mr Peddie to take that course (and no doubt our judgments will be transcribed and available to whoever takes the final hearing), there plainly is jurisdiction to apply to set aside orders which have been obtained by means of material non-disclosure.  That, of course, is not to say that any such applications will necessarily succeed.  They will of course be heard on their merits.  Accusations have been made against Mr Sealy of non-disclosure.  He is or was by occupation a car salesman, and the allegation was that he dealt very substantially in cash and so there may well be in any proceedings before the court cross-allegations of non-disclosure.  It is absolutely essential that both parties now do their very best to be full, frank and clear with the court; but I am quite satisfied that there is jurisdiction to reconsider the orders of March 2001 and July 2003; that Mr Sealy should not be prejudiced by the fact that Honour Judge Campbell declined to allow him to adduce fresh evidence.  Before her it was a matter of discretion whether the evidence should be admitted on a rehearing based on an application for non-disclosure; the evidence is put forward as a matter of right, and permission is not necessary.

14.	I therefore say nothing about the ultimate outcome of these proceedings.  I notice, because it is in our papers, that there have also been proceedings in relation to the children of the marriage and it is apparent Mr Sealy plays a very large part in those children's lives.  If there is any prospect of compromise or settlement, of course it should be kept to the forefront of those advising both parties.  But if there cannot be, then I am quite satisfied that the proper course here is for the matter to be reconsidered at first instance and the matter dealt with on the basis of applications either to the circuit judge or to the district judge seeking to set aside the previous orders on the basis of non-disclosure.  

15.	In those circumstance I would grant Mr Peddie the permission he seeks to withdraw his application for permission and I will leave to later argument whether any further directions are required.  

16.	LORD JUSTICE JONATHAN PARKER:  I agree that Mr Peddie should have the permission which he seeks to withdraw the present application.  I am in full agreement with the course which my Lord at an early stage of Mr Peddie's submissions recommended to him.  This was a course which My Lord and I had discussed prior to this hearing.  I am also in full agreement with the views My Lord has expressed in his judgment, in particular as to the desirability of avoiding the appellate route in this case and applying to the district judge to set aside the orders on the ground of material non-disclosure.  
 (Application granted; assessment of publicly-funded costs).