ASHLEY-NICHOLSON v ASHLEY-NICHOLSON [2002] EWCA Civ 1364

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DERBY COUNTY COURT
(His Honour Judge Orel)
[2002] EWCA Civ 1364Case No B1/2002/1830Venue Royal Courts of Justice, Strand, London WC2A 2LL, Thursday, 12th September 2002
Between
ASHLEY-NICHOLSONApplicantASHLEY-NICHOLSONRespondent
Before
Lord Justice ThorpeThe Applicant appeared in person.The Respondent did not appear and was not represented.Date 12 September 2002
[1]Thursday, 12th September 2002 LORD JUSTICE THORPE: Mr Ashley-Nicholson renews an application for permission to appeal the order of His Honour Judge Orrel sitting in the Derby County Court on 22nd August 2002. The application for permission to appeal was first advanced to the judge and he refused it on the same day. Accordingly an application for permission was received in this court on 23rd August, which is a significant date, since it is the date on which the judge had ordered Mr Ashley-Nicholson to vacate the matrimonial home and thereafter not to return. The judge had further specified what property Mr Ashley-Nicholson might take with him.[2]The hearing before His Honour Judge Orel was preceded by a hearing before District Judge Cochran on 9th August when the applicant sought non-molestation orders and an ouster order against her husband without notice. In support of that application she filed an affidavit, the only copy before me as an uncompleted jurat, but it should be assumed to be dated about 9th August. In that affidavit the applicant sets out, briefly, her major complaints against Mr Ashley-Nicholson culminating in incidents of sexual violence immediately preceding the application to the court, the last episode occurring on 8th August. It was under those circumstances that Judge Cochran made the order, an unusual order (as the court recognised) since the ouster order is preceded by the recital. But the court was satisfied that the circumstances were sufficiently exceptional to justify an ouster order without any notice to the recipient.[3]The next stage occurred on 13th August when Judge Orel first heard the case. On that occasion he allowed some relaxation of the ouster, since he said that from noon the following day there should be a relaxation of the order of 9th August to allow Mr Ashley-Nicholson to use the front door, hallway, living-room and downstairs cloakroom of the matrimonial home, that pending a final hearing which he fixed for 21st August at 10 a.m.[4]The next stage was the filing of a full, detailed statement with many exhibits by the wife, that being dated 21st. Whether the judge sat on 21st, as the order of 13th August foreshadowed, I do not know. Certainly the order that he made was dated 22nd. What is remarkable is that at no stage did Mr Ashley-Nicholson exercise his right to file evidence in response taking issue with the allegations raised by his wife either in her succinct affidavit or in her full statement.[5]There is no record of the proceedings that I now review other than the order of 22nd August, as drawn and perfected, and a note, which this court has received by fax transmission from the Derby County Court. That fax transmission is dated 29th August and the member of the court service noted to this court:
"I found some extra notes from later in the day. Gap in page numbers where other cases heard."
[6]I have assumed that all that follows is therefore an extract from Judge Orel's notebook. It is not possible for me to follow the pagination of the notebook and the gap to which the sender referred, since they have been cut off in the transmission. But it is quite plain that this abbreviated note records the detailed oral evidence of the wife in support of her case. There are some two pages of evidence-in-chief, followed by some eight or nine pages of evidence in cross-examination. Mr Ashley- Nicholson was in person and so presumably was himself directing the questions to his wife. Then the judge notes Mr Ashley- Nicholson's evidence briefly, but in these terms:
"No denying [very] violent argument several hours. Some violent contact. She struck me on knee and I slapped."
[7]Then there follow some other notes made by the judge of contributions made by Mr Ashley-Nicholson on chattels to enable him to settle the list of what Mr Ashley-Nicholson was entitled to remove on his departure and what he had to leave behind.[8]Mr Ashley-Nicholson's application to this court was put before me as a matter of urgency on 30th August and I refused his application for permission, saying:
"The only record of the proceedings on 22.8.02 which is available to me demonstrates sufficiently that the orders made by the judge were justifiably made within the ambit of his broad discretion. Whilst I have not a clear note of judgment the note of evidence suggests that the applicant conceded there had been a violent quarrel."
[9]Mr Ashley-Nicholson asserts that he never had a fair hearing in the county court, he never had the opportunity of giving evidence and telling his side of the story and that the judge gave no judgment. He said that the judge made the order having heard the wife testify. I am simply not prepared to accept that assertion, unless corroborated. Judge Orel is an extremely experienced judge. I believe him to be the designated judge in the Derby County Court. The facsimile of his written entries in his notebook demonstrate conscientious care. The case that the wife advanced amply justified the relief order. Mr Ashley- Nicholson had not taken any steps to controvert that order by filing an affidavit or statement in response, and the note taken by the judge seems to indicate that he made substantial concessions. Under those circumstances I am not prepared to grant permission in this case. I remain of the same view as expressed on 30th August. Nor am I prepared to grant any stay.[10]Mr Ashley Nicholson has subsequently, since my refusal, put in a statement pleading his medical condition and his need to be locally based to be monitored and managed medically. He has also told me that since 22nd August the wife has vacated with the children and that the property is therefore of no remaining benefit to her.[11]I only note that the medical ground now advanced by Mr Ashley- Nicholson does not seem to have been advanced to the judge. I also note that paragraph 7 of the order specifically provides that the order shall last until a further order is made. It is open to Mr Ashley-Nicholson to apply to Judge Orel for the variation of the order of 22nd August, bringing to the judge's notice the medical ground, if he is so advised, and bringing to the judge's notice the wife's subsequent removal from the premises. Accordingly, the issue can be investigated properly in the appropriate local forum. The application would be on notice to the wife and she would have her opportunity of either confirming or controverting the suggestion that she has vacated and that the property is of no remaining use to her.[12]All that said, these applications for permission and a stay are refused.

Order

Application refused.

Cited in 2 later judgments