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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 >> Briggs v Briggs [2001] EWCA Civ 1998 (14 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1998.html Cite as: [2001] EWCA Civ 1998

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BLACKBURN COUNTY COURT
(His Honour Judge Smith and
His Honour Judge Proctor)

		Royal Courts of Justice Strand London WC2 Friday, 14th December 2001

1. LADY JUSTICE HALE:I have before me two applications for permission to appeal against orders made in the Blackburn County Court. The first, No 2001/2366, asks for permission to appeal against the order of His Honour Judge Smith on 20th September 2001. The applicant's application to extend time to pay a lump sum of £33,500 was dismissed. An order was made that the district judge sign all the documents on his behalf, if necessary, to transfer to his former wife his interest in the former matrimonial home and the policies of assurance referred to in the ancillary relief order made on 14th September 2000. The second, No 2001/2611, is an application for permission to appeal against the order of His Honour Judge Proctor dated 21st November 2001 dismissing the applicant's appeal against an order of District Judge Talbot dated 31st October 2001 that he give up possession of the former matrimonial home by 4.00pm on 28th November 2001.
2. The background, as will be plain, was that of a marital break-up and ancillary relief proceedings. The parties were married in 1976. The husband, who is the applicant to this court, was a teacher and, he tells me, also a part-time musician. The wife looked after the home and the children of the family. One of these, Elizabeth, who was born in 1979, has special educational needs. The applicant also tells me that his wife looked after the family finances until he discovered, in 1983, that she had been engaging in various dubious financial activities. He realised that she was under a good deal of strain with Elizabeth and with another child, Alan, born in 1982. He forgave her, but he then took over the family finances for a while, until he allowed her to take them back again in the early 1990s.
3. In 1996 the wife left the family home with the children, but Elizabeth returned to live with her father in 1997. Divorce proceedings were begun and, after a very considerable time, an ancillary relief order was made on 14th September 2000. The order states that it was made by District Judge Heyworth, but the applicant tells me (and there are references to support him) that it was in fact made by Deputy District Judge Lambert. Both parties were represented by counsel for that hearing, which lasted two days. The outcome was that the applicant was to pay the wife a lump sum of £33,500 by 13th November 2000. On payment of that sum the wife was to transfer her interest in the former matrimonial home, 15 Duke's Brow, Blackburn, to the applicant and assign her interest in a specified insurance policy to him. However, in default of that lump sum payment by the due date the position would effectively be reversed: the applicant was to transfer his interest in the former matrimonial home to the wife, with that policy and four others, and there would also be an order for nominal periodical payments of five pence per annum.
4. The district judge obviously accepted that there had been some very questionable financial dealings by the wife, but he stated that she was:

"... in considerable turmoil. She was in a weak position and resorted to attempt to obtain money and I do not doubt that Mr Briggs knew about some of these attempts."

5. There had in fact been an Anton Piller order made against the husband. The district judge commented that this was unusual. However, he took the view that it was justified because:

"... Mr Briggs was using every effort to secrete monies away from Mrs Briggs, taking the monies to the Isle of Man two days after giving an undertaking not to remove the monies."

6. That refers to a lump sum paid to the husband on his early retirement on grounds of ill health. The husband denies that his solicitors were instructed to give any such undertaking at the time and he also claims that that money has been spent.
7. Hence the district judge concluded that the wife was entitled to a share in the former matrimonial home. His order was designed to give the husband a choice of how to deal with it: either to pay the lump sum or to let her have the house.
8. The husband then appealed. He was acting in person at that stage because his solicitors had had to withdraw. He has various complaints about the conduct of the solicitors in this case and it is not for me in this application to express any view about those. The gist of his appeal was the false evidence given by the wife. She had said to the district judge that she had no relationship with a Mr Redmond, whereas in fact they married one another within two months. He also complained that she had been living since 1996 in a perfectly satisfactory property, but she had left that just before the hearing and claimed that she had no proper place to live, whereas in fact she was living and working in the Black Swan, a public house in Todmorden.
9. He complained in great detail about her financial misbehaviour during the marriage: setting up a secret Post Office box; opening a Barclaycard account in his father's name; fraudulently claiming benefits; and allowing the building society to obtain a possession order on the former matrimonial home in respect of debts run up by her without his knowing. He also complained that she had run up costs in proceedings unnecessarily and been unwilling to contemplate settlement, despite the fact that his counsel and another district judge had thought that the answer was obvious. He also relied considerably on the interests of Elizabeth, who had chosen to live with him.
10. On 19th October 2000 District Judge Proctor gave leave to Elizabeth to intervene, if so advised, and directed that the Official Solicitor be invited to act for her. On 11th December His Honour Judge Smith directed that the appeal be listed for 28th February 2001. The applicant applied to this court for permission to appeal against that order and that application was refused by Lord Justice Thorpe on paper.
11. The appeal was heard before His Honour Judge Smith in March. The husband was represented, but not by counsel. Evidence was again heard over two days and the judge gave judgment on 21st March 2001. He rejected the allegations of the wife secreting money. He found that the husband had failed to account for his lump sum. He therefore calculated that, with his lump and the remaining contents of the former matrimonial home, the husband would in fact have more of the available capital than the wife would have if she had the equity in the matrimonial home, which was not very great, plus the benefit of some insurance policies. He therefore considered that, if the £33,500 was not forthcoming, the correct answer was to rely on the fall-back in the district judge's order, and he gave his reasons. In effect, the husband would have his lump sum and the contents of the former matrimonial home and his pension. He could go into rented property. The wife would have the equity of the home and the policies. Elizabeth could choose whether to stay or whether to go with her mother.
12. There was no application to this court for permission to appeal against that order. Nevertheless, the applicant did not obey it. He thought it wrong in principle.
13. In May their son Alan returned to live with his father and brought with him some documentation which bolstered the applicant's allegations about the highly questionable financial dealings of the wife during and after the marriage. It is suggested that she had misappropriated money from various accounts and set up secret accounts which she had never disclosed in the proceedings.
14. Negotiations, I am told, took place over the summer between lawyers on behalf of each party. However, those came to nothing. There were therefore applications made to His Honour Judge Smith, one to extend time to pay the full amount of the £33,500 and the other to execute the transfers of the house and the policy. The applicant was represented by counsel. He is concerned about the quality of his representation. He had a conference with quite senior counsel in Manchester and there was a last minute substitution. He is not happy with the points that were made on his behalf at the hearing.
15. The notes of judgment on 20th September indicate that His Honour Judge Smith considered that the appeal back in March was "wholly unmeritorious". He discussed the allegations made by the applicant in the light of the further information which was now available to him through Alan, and said:

"Taken at its highest the contents are hardly likely to back a setting aside of a court order. He has been advised by counsel in relation to the cons of such an application and has been advised of the dangers in relation to the same - I say this was sound and accurate advice."

16. Thus there was no application to set aside the original ancillary relief order on the basis that it had been obtained by misrepresentation or material non-disclosure discovered since the date of the hearing and the appeal.
17. The judge then went on to discuss whether the applicant should be given an opportunity to raise the £33,500 and pointed to various ways in which he had said that he could now raise the money. The wife, on the other hand, said, first, that she doubted whether he could raise the money and, secondly, that she wanted the house now. She said to the judge that she needed the accommodation because she faced the dilemma of eviction. The lump sum would not be sufficient for her to rehouse herself.
18. Two points arise out of that. The first and the most important is that no application had been made to set aside the original order and that, when such an application would have been considered, Mr Briggs did have the benefit of legal advice. The second question, therefore, is whether the judge was correct in reaching the conclusion that he would decline to extend time to pay the lump sum. It was undoubtedly open to the circuit judge to extend time. He has power to do it. He does not have to do it. It is therefore a discretion, and the Court of Appeal will not interfere with the exercise of discretion by the judge in the court below unless satisfied that it was plainly wrong. That is a very high hurdle for somebody in Mr Briggs's position to surmount. It is particularly difficult where, as here, one has a judge who has had the benefit of hearing the appeal against the original order and has heard the evidence of the parties for the purpose of that hearing and therefore is much better placed than this court is to judge where the real merits lie.
19. A further point is that, while obviously I do not have before me all the evidence that was before the courts on the previous occasions, it is clear that there is little, if any, equity in this house. Mr Briggs tell me that there is now some £43,500 owing under the mortgage and that the valuation is some £40,000. It does not therefore appear to me that the balance of advantage in the order as it currently stands is so clearly in favour of the wife as to justify a reconsideration of the merits.
20. The orders made for possession of the house obviously are simply the consequence of the outcome of the applications on 20th September 2001 and, if there is no basis for appealing against that order, there is no basis for appealing against the possession orders either.
21. It is a very sad and difficult situation. Nobody reading all the papers that I have before me could feel anything other than very considerable sympathy, principally for Elizabeth and Alan, who have been faced with the difficulties arising from the break-up of their parents' marriage. Indeed, Alan has subsequently produced a witness statement (which is undated, but appears to have been put before the court for the purpose of the possession order appeal) giving an account of what happened when his mother left his father. His statement does in fact suggest that this had been a pre-planned move; that the move to the Black Swan was similarly pre-planned; and that various financial irregularities took place, not only beforehand, but also while they were at the Black Swan, and have taken place since, in relation to his own finances. But it is clear from the history as I have related it that these allegations were already in play back in September 2000. They were even more in play in March of this year, and again before His Honour Judge Smith in September. They add nothing new to the case to indicate that now, so far down the road towards resolving this issue, this court would have a basis to interfere. It is simply too late to do that.
22. These applications must therefore be dismissed.
Order: application for permission to appeal dismissed; transcript of this judgment to be supplied to the applicant at public expense.