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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 >> Bright v Bright [2002] EWCA Civ 1412 (10 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1412.html Cite as: [2002] EWCA Civ 1412

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HER HONOUR JUDGE CARR)

		Royal Courts of Justice Strand London, WC2 Tuesday, 10 September 2002

Tuesday, 10th September 2002

1. LORD JUSTICE WARD: This is an application, very courteously and persuasively made by Mr Bright, for permission to appeal against the order of Her Honour Judge Carr, made on 11th April 2002, when she refused Mr Bright permission to appeal the order of District Judge Maw, dated 1st February 2001.
2. There are aspects of this case which are technically complicated and I do not wish to complicate this judgment further than is necessary, but I must say this. The matter was dealt with by Judge Carr as an application for permission to appeal District Judge Maw's judgment. That, no doubt, is the way the matter came before her. In fact that procedure is wrong. For some strange quirk, which is not widely known and indeed was not originally appreciated by me, the position in family matters is different from the position under the Civil Procedure Rules. Under the ordinary civil proceedings an appeal from a district judge to the circuit judge has to be with permission. But in family matters the old rules prevail and under the family proceedings rules no permission is necessary to appeal an order of the district judge. In other words, Mr Bright had an appeal still as of right against the order of the district judge. True it is, as she pointed out, that this court has quite recently held in the case of Cordle v Cordle [2002] 1 FCR 97, that the procedure to be adopted on such an appeal is by way of rehearing and not by the exercise afresh of a discretion as had been the case hitherto.
3. On one view of this case I could therefore hold that Judge Carr misdirected herself and the matter should go back for further consideration. But I do not intend to do so because ultimately I agree with her that the prospects of successfully appealing against District Judge Maw's order are, if not hopeless (which may be the way she characterised it) it is certainly so difficult that in my judgment there is no real prospect of success on an appeal from District Judge Maw, and without a real prospect of success there is no purpose in this litigation going any further.
4. I will now explain what lies at the heart of this. Mr Bright was the petitioner in divorce proceedings brought against his wife after a long marriage. The marriage has now been dissolved. In the ordinary course the ancillary relief proceedings came before the court and District Judge Maw in his judgment of 4th February 2002 sets out the history of how those proceedings came to that conclusion. It seems to be common ground that on 8th June 1999 Mr Bright met with his wife, or perhaps even then his former wife (though I shall refer to her still to be his wife) with their son, and together they concluded the terms upon which their financial relations, one with the other, should be resolved. Mr Bright says, and I think it is common ground, that a written document was produced eventually by Mrs Bright containing those terms (to which I shall refer in a moment). Mr Bright says that he then reduced to writing the terms of an agreed order that they wished to put before the district judge in the ancillary relief proceedings. Although it bears hallmarks of a document prepared by solicitors, for the purposes of this judgment I am quite content to accept that Mr Bright drew it himself. It reads as follows (page 38):

"Upon the Petitioner and the Respondent agreeing that the terms of the agreement reached between them contained herein shall be binding upon them only in the event of an order being made in such terms

And upon the Petitioner and the Respondent continuing to own the former matrimonial home,Pelham Lodge, Thornton Road, Goxhill, North Linconshire as tenants in common in equal shares

By consent.

It is ordered -

1. The Petitioner's and the Respondent's claims for financial provision and property adjustment orders do stand dismissed and neither the Petitioner nor the

Respondent shall be entitled to make any such further application in relation to their marriage under the Matrimonial Causes Act 1973, s23(1)(a) or (b).

(2) There be no order as to costs..."

5. It is common ground that that document was placed before District Judge Maw when he dealt with the ancillary relief application on 22nd June 1999. He made an order by consent in those terms, adding, after discussion with the parties who agreed it, that there should be a further provision dismissing the claims under the Inheritance Provision for Family and Dependants Act 1975. The effect of that order was therefore to be a clean break and a dismissal of all claims against the parties one against the other.
6. It is now necessary to look at the agreement that was made on 8th June as drawn, and again I accept for the purpose of this judgment, drawn by Mr Bright. That was headed to be (page 40):

"An agreement made between Gwendolen Jayne Bright and Barrie Douglas Bright. On the 8th June 1999."

7. It seems to be in three parts. The first deals with the matrimonial home, and then recites:

"A mortgage will be raised on the property by Andrew and Beverly Procter, and the sum of £50,000 will be paid to Barrie Douglas Bright for his share of the property and contents."

8. Mr and Mrs Proctor are the parties' daughter and son-in-law. It appears that in due time the money was in fact raised by mortgage and paid to Mr Bright so that that part of the agreement has been implemented.
9. The next part of the agreement is titled "Payment out of assets held in SSB Contracts by Gwendolen Jayne Bright." A word of explanation. SSB Contracts is a firm that was started and run by Mr Bright for many years and eventually (and I need not spell out the detail) passed to Mrs Bright and their sons. Though plainly one of them remains in the business, I understand the business continues to flourish and to operate. The agreement is in these terms:

"Agreed £50,000 to be paid over a 5 year period. No interest to be paid. This equates

to 60 payments of £833.33 per month, payable last working day of the month. Commencing 30th June 1999."

10. Then details of the bank are given.
11. The agreement continues:

"Also: 1 Chevrolet sports car."

12. The background of this I am told is that because Mr Bright had passed over the assets of his firm to his wife and son he was going to be paid out £50,000 by those monthly installments over five years.
13. The third part of the agreement deals with the following:

"Tradeclear Limited, and judgment against SSB Contracts. Case No: GG701583. £26,789.29 plus costs of £445.00 which totals £27,234.29."

14. The agreement then decides that this was to be paid over a 12-month period.
15. The background to this appears to be that Tradeclear Ltd, a company formed by Mr Bright, sold assets to SSB Contracts. There is a judgment for the unpaid price of those assets. Tradeclear may be in liquidation, I am not entirely sure of its position, but Mr Bright says it assigned the debt to him and he may therefore be entitled to enforce it against SSB Contracts. It is pertinent to point out that this has nothing to do with a matrimonial finance. It seems also to be common ground that Mrs Bright was paid at least three, but probably four, payments of the £833.33 a month, the first being a month late in July and the last being made on 3rd November 1999. When she stopped paying Mr Bright applied to the Divorce Court for orders in effect to set aside the ancillary relief order in order to incorporate that agreement into the terms of the order. Initially that was refused. The matter then came back before Judge Jenkins. Judge Jenkins expressed his bafflement about the precise meaning of the preamble to the order) and I share his concern. Mr Bright, on the other hand, says that the reference to "the terms of the agreement reached between them contained herein" must necessarily as a matter of construction refer to something other than that which is contained in that particular document, and must, therefore, of necessity refer to the further agreement, ie the agreement relating to the £50,000 in Tradeclear, which, for convenience, I will call Agreement A.
16. His Honour Judge Jenkins indicated that he would adjourn that application in order to see whether Judge Maw could throw light upon it, and after the midday adjournment Judge Jenkins said this:

"I have spoken to District Judge Maw. He takes the view that there was what he calls a 'Contingency position' - contingency order. In other words, he was aware of the agreement that is described. It is plain it needs to come before him."

17. In that way the matter did eventually get to Judge Maw. It took some time, Judge Jenkins' judgment being delivered on 4th August 2000, and the matter finally coming before Judge Maw on 7th March 2001. I have to say critically that I find it lamentable that District Judge Maw should have reserved his judgment from 7th March and not delivered it until 1st February 2002, a period of nearly 11 months. That is an unacceptably long time to take over a judgment which, with respect to the district judge, was not that unduly complicated as to require it being reserved and left unattended for that length of time.
18. Mr Bright was then in person. He tells me, and I have no doubt having heard him, that he drew District Judge Maw's attention to the comment from His Honour Judge Jenkins, because there was a stark issue before District Judge Maw as to whether or not agreement had been placed before him in June 1999. Mr Bright vehemently says it was. He says, moreover, that when he searched the file there was an unadorned copy of Agreement A already on the file not the copy, marked Exhibit A, which was subsequently placed before Judge Jenkins. Mrs Bright was equally adamant that the agreement was not placed before District Judge Maw.
19. The issues were addressed to District Judge Maw on the basis that there was a change in the circumstances which fundamentally upset the terms of the agreement - reliance was placed on the well-known case of Barder - alternatively, that the full facts had not been disclosed. The district judge had necessarily therefore to deal with what he called "the vexed question of the separation agreement", Agreement A. He held this (page 27):

"On reflection I do not believe that agreement was put before me. There would have been nothing to stop Mr Bright if he wanted that agreement to be incorporated in the order from asking me to do so and putting the order before me. I do not think that Mrs Bright did ask me [to] put the order to look at the separation order or say anything about it at all. If Mr Bright had drawn the separation order to my attention I do not see how I could have made an order dismissing all claims when the parties clearly had and envisaged substantial amounts of money passing between them by way of lump sums and instalments of those lump sums. At the very least the question would have been raised as to whether the court had any power to make more than one lump sum order and in particular any power to involve third parties who had not been served presumably with notice of the application.

I find it inconceivable that if the separation order had been placed before me and if Mr Bright had told me that that order was intended to be made, that I would not have sent both parties away to negotiate further.

The reality is however, in my view, as Mrs Bright has said, that Mr Bright for whatever reasons did not want those matters bringing to the court's attention and did not do so. I am satisfied that both he and Mrs Bright simply asked the court to make a consent order dismissing all claims.

It may be, and I do not know, that there is some other commercial litigation between Mr and Mrs Bright which is capable or not of being pursued as the case may be.

In my view, however, that makes no difference to the matrimonial litigation between them."

20. Now, I might express surprise that the district judge did not grapple head-on with the apparent conflict between that recollection. He recited in his judgment the quite contrary recollection that he apparently disclosed to Judge Jenkins in which he acknowledged he was aware of the agreement, and described the position of some contingency arrangement which is not far from how Mr Bright recollects the matter that the district judge said if it did not work out the matter could always be appealed and the dilemma unscrambled.
21. Mr Bright's insuperable difficulty, it seems to me, is that this court, or, if the matter went back, the county court judge, would always find it impossible to attack District Judge Maw's own finding of what took place before him; and if on reflection he concluded that he did not have the agreement, I do not see how any appellate court can possibly come to the contrary conclusion. In other words ultimately the appeal has no real prospect of success. For that reason it is bound to be dismissed by a county court judge. It is bound to be dismissed by any county court judge, I am afraid, and has to be dismissed likewise by this court. That is not to say that Mr Bright May Not have proper claims against Mrs Bright and, as the assignee of Tradeclear's debt against SSB, in respect of the matters referred to in the agreement.
22. I do not have all of the evidence that was submitted by Mrs Bright but I do have a document called a "Statement of Truth" dated 30th January 2001, in which she does seem to acknowledge that an agreement was reached with Mr Bright with regard to the £50,000. She says that she is no longer obliged to pay it because a motor home belonging to SSB was not returned. (There is no reference to the motor home in the agreement). She says she did not have to transfer the Chevrolet because it did not belong to her, although that was referred to in the agreement. But I say no more about the merits of a possible civil action that may be brought in the county court by Mr Bright against Mrs Bright and/or against SSB to recover the moneys that he says it was agreed his company should receive. He must take his own course on that and exercise his own judgment as to his prospects of success in that litigation.
23. That might be the end of the matter but for another unpleasant observation I have to make. Throughout the recent proceedings Mrs Bright has been represented by solicitors Pepperell Machin and Co. Mr Bright took serious exception to their acting. A ground of his appeal is that they were in a position of conflict and should never have accepted a retainer from Mrs Bright. I, of course, have not heard them. I do not know the full side of their story, but I am bound to add these few comments. It seems to me to be common ground that the firm acted for Mr Bright for many years and acted for him in proceedings he brought against the police in the 1990s; they would have considerable information about him which was communicated in confidence, and they might have felt that that very fact alone had put them in a position of conflict so that they should have declined Mrs Bright's instructions. But it goes far further than that. It seems to me to be equally common ground that for some months, at least, they acted for Mr Bright in this very divorce. How, therefore, they thought they could properly represent his wife in that divorce remains to me something of a mystery, and if it is true it reveals to me a matter of real concern. It does not surprise me, therefore, that Mr Bright is angry and disenchanted with their conduct. It is, however, equally plain to me that it does not really affect the procedural impropriety of the conduct of these proceedings so as to afford him a separate ground of appeal; but if he is actively pursuing his complaint through the Law Society or the Solicitors Disciplinary Tribunal, that is his entitlement and I hope that the appropriate bodies will give a careful consideration to this complaint and deal with it justly and fully, having heard both sides of the argument which, I repeat, I have not had the ability to hear.
24. If Mr Bright thinks it useful to have these observations placed before the Law Society he has my permission to adduce a copy of this judgment and place it before them. I will ask that a transcript of the judgment be provided to him, to Mrs Bright and to Pepperell Machin and Co of 40 Doncaster Road, Scunthorpe, North Linconshire DN15 7RQ at public expense. But in the ultimate result this application for permission to appeal is dismissed.
(Application dismissed; no order for costs; transcript of judgment to be provided to the parties at public expense).