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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 >> De Montford v McKenzie [2000] EWCA Civ 411 (23 November 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/411.html Cite as: [2000] EWCA Civ 411

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE RHYL DISTRICT
REGISTRY OF THE
HIGH COURT SITTING AT CHESTER
(Mr Justice Connell)

		Royal Courts of Justice Strand London WC2 Thursday, 23rd November 2000

1. LORD JUSTICE THORPE: Mr Ross, in a cogent submission as McKenzie Friend for Mrs De Montford, renews an application for permission to appeal an order made by Connell J on 14th July 2000. She also seeks an extension of time. She also seeks leave to adduce fresh evidence and injunctive relief.
2. I take together the application for permission to appeal and for an extension of time. The trial, the subject of a reserved judgment, took place between 29th June and 6th July. It was as florid a case as it would be possible to see, even in the worldly jurisdiction of the Family Division. Each made the most extreme allegations against the other, when this was only a claim for ancillary relief brought by a husband at the termination of a 14 year marriage, the target of the application being the jointly owned matrimonial home. The judge was extremely unimpressed with the applicant husband. He said of him:

"In my view this husband is shown to have been an untruthful witness at various stages of the proceedings;and he is not a witness upon whom I can rely to place the truth before the court."

3. In particular, he found him guilty of wilful concealment of a bank account offshore. However, the wife and Mr Ross fared little better. The judge said of them that they had seen fit to write a series of hostile and malicious letters in the course of the proceedings and that one or other of them was prepared to forge the alleged signature of a witness on an affidavit. The judge stigmatised some of the wife's allegations against the husband as reckless. He singled out a piece of evidence which he said was the clearest allegation of the lengths to which the wife was prepared to go, clearly encouraged by Mr Ross-Jones, to boost her case dishonestly. He said further:

"There is a significant number of plain examples of duplicity or dishonesty on the part of the wife."

4. Mr Ross has said in the course of his submissions that he is not seeking to criticise Connell J, who decided the case on the evidence before him. But he says that he would have decided it quite otherwise had he had a wealth of evidence which was not before him. Mr Ross has identified a number of additional witnesses or a number of additional documents that he would seek to adduce, not so much in this court but in a court of trial, were he to establish a right to retrial.
5. In cases of this character, where there has been a total disregard of the rules and requirements of litigation on both sides, typically the case never ends in the minds of the parties. They can always think of some additional ruse that they might have mounted or they might now mount to achieve a more palatable end. But there is a general principle that there should be an end to litigation at the earliest date that does not deny justice. Nowhere is that principle stronger than in the family justice system, and in those cases which have generated such passion that the parties have felt justified to fight their respective causes by dishonest means. It would be unthinkable to breathe further life into this case by going through the elaboration of an appellate review of the additional evidence, whether it satisfied the rule in Ladd v Marshall, whether it should be admitted and whether the case should be directed for retrial, with all the consequences.
6. There is an independent point on costs. Mr Ross criticises the judge for having condemned the wife in costs at the end of the case. Costs adjudications are essentially a matter for judicial discretion. Connell J explained clearly why he made the order that he did, balancing, on the one hand, the fact that the husband had obtained a lump sum order without any responsible offer having been made in advance, whilst, on the other hand, he had been guilty of a lack of candour and deliberate non-disclosure. Accordingly, the judge reached the conclusion that he should have only two-thirds of his costs. This court would never interfere with that conclusion.
7. As to the application for an injunction, it may be that Mrs De Montford has valid grounds of complaint. She may have a valid case for the court's protection, but it is not the function of this court to make such rulings between the parties unless and until the case has been accepted for entry into the court by grant of permission. Applications for injunctions are essentially matters for the court of trial. Mr Ross says that he has been refused the opportunity to issue applications. If that is so, it may be because the court of trial was hesitant to accept any applications so long as there was an application outstanding to this court. That will no longer be the position from today. Any application for an injunction seems to me to be properly directed to the court of trial. For those reasons I confirm the grounds expressed on 2nd October. This application for permission is refused.
Order: Application refused.