Stylianou v Chimarides [2005] EWCA Civ 1057

Case No B4/2005/0769[2005] EWCA Civ 1057
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HER HONOUR JUDGE COATES)
Venue Royal Courts of JusticeDate Friday, 29 July 2005
Strand
London, WC2
B E F O R E:
MRS JUSTICE BLACK
Between
ANNA STYLIANOURespondent(formerly Yiannoulla Chimarides)Respondent-v-
Between
STELIOS SERGIOS CHIMARIDESAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
for The Appellant did not attend and was not represented for The Respondent did not and was not represented
J U D G M E N T
[1]MRS JUSTICE BLACK: I am sitting today to deal with a request for permission to appeal that has been filed by Mr Chimarides in relation to an order which was made on 28 October 2004 by Her Honour Judge Coates. There has been no attendance by Mr Chimarides today. I will explain the reason for that and I will then explain the course that I am going to take, which is to deal with the permission application substantively despite Mr Chimarides' absence.[2]The short history of this matter is that Mr Chimarides and his wife were in the course of divorce and ancillary relief proceedings. In April 2003 they came to some terms with regard to the settlement of the ancillary relief proceedings. That never came to fruition, for reasons which I do not intend to go into. The whole matter was going to be the subject of argument on 28 October 2003 but that was circumvented by them coming to new terms with regard to the disposal of their ancillary relief matters. At that point a consent order was agreed upon.[3]The wife then (she would say subsequently and the husband would say she should have known before) discovered that the husband's mother had died shortly before the consent order was agreed. She, the wife, took the view that there were likely to be assets, as indeed it seems there are, passing from the husband's mother to the husband which would benefit him and alter significantly the position with regard to the ancillary relief order. That, she argued, was a material non-disclosure and her intention was to bring the matter back before the court seeking to overturn the consent order on the basis of the material non-disclosure so that the matters could be looked at by the court again.[4]The matter took a regrettably long time to come back before the circuit judge with a view to the first steps being taken to overturn the consent order. The circuit judge examined the reasons for that when she gave her judgment on Thursday 28 October 2004 (of which I have a transcript) before she gave leave to appeal out of time to set aside the October 2003 consent order. That is the order that Mr Chimarides now seeks to appeal and I will return in a moment to what was said by Judge Coates in October 2004. I want just for the moment to deal with the question of Mr Chimarides' absence today at court and why I have decided to continue with the application nevertheless.[5]Following that order of October 2004 by Judge Coates it seems that Mr Chimarides must have drawn up a notice of appeal pretty quickly, because there is one dated 1 November 2004 with the papers. However, it does not seem to have been issued until 7 April 2005. There were then difficulties in the court obtaining Mr Chimarides' bundle for that application. On 15 June 2005 Deputy Master di Mambro made an order that unless the bundle was provided in proper form by 22 June then the application for leave would be dismissed. That was communicated to the husband on 15 June. Mr Chimarides must therefore at that point have known that the question of his application for leave to appeal was under active consideration by this court. However, it seems from some documents that he has now supplied that on Sunday, 19 June - that must be, if the ordinary course of post had occurred, only a matter of days after he heard from this court about his bundles - he booked a flight returning to this country from Athens tonight, Friday, 29 July, then returning again to Athens on 9 August.[6]On 21 June he filed a bundle which was sufficiently compliant to avoid his application for leave being dismissed. On 30 June there was a letter to him from the Court of Appeal asking him to make good certain more minor deficiencies in the bundle by 13 July. It must therefore have been continuing to be obvious to him that there was progress towards this leave application being listed before the court.[7]On 12 July, the court, having assisted Mr Chimarides with regard to his appeal by drawing up an index to the appeal bundle amongst other things, wrote to tell him that and to say that they were still making efforts to get the transcript of the trial judge.[8]On 20 July the court sent notice to him at his normal address of the present hearing date. On the hearing date, today, this morning there was a communication to the Civil Appeals Office from Mr Chimarides. He says in an email which follows up a telephone conversation that he had had:
"With reference to my call of today with one of your colleagues regarding the appointment with the Judge for a hearing. I am away in Greece today and received your letter which was forwarded to me today. I am therefore not able to attend."
[9]Mr Chimarides went on to make reference to his flight back this evening and his illness and his need to spend periods of time abroad because of his health. He asks that the court date for the leave application should be moved to 8 August, and that he would then have the opportunity to be heard. He invites attention to the fact that he wants to raise points with regard to fraud and perjury by the solicitors for the wife. He also says that he wants to apply for a change of residence that was never heard by the lower court, and he feels that there would be a great injustice if the court refused to hear his case on 8 August. I take that to mean as opposed to today's date.[10]There is another email six minutes later to the Court of Appeal's Listing Office sending a copy of the confirmation of booking of the aircraft (to which I have already referred) and again asking that the hearing should be heard on 8 August 2005. He says there are three issues to bring to the judge:
"(1) misleading the court by legal representatives, Tennant and Knight; (2) a children's application for change of residence; (3) misdirection of law based on legal arguments regarding the setting aside of the consent order dated 29 October 2003."
[11]The first point to observe is that 8 August is a wholly inconvenient date for the hearing of this matter in this court as one would have thought Mr Chimarides should have known, because that is the date on which the county court next considers the question of the setting aside of the ancillary relief order.[12]The second point to observe is Mr Chimarides was well aware that his appeal application was proceeding actively in this court. He ought to have known that it was imminent that it would be listed. It was a simple matter for him to ring the Court of Appeal's office to find out what progress was being made and what date was likely to be set for the matter. He might have been able to negotiate a date which was convenient to him, or he would have had the choice which in my view he should have taken, given that information, not to go to Greece as he had planned. He has not informed the court as to the date on which he actually left for Greece but it is plain from the communications with regard to the bundle in June that it was some time in the last two months or so.[13]It seems to me that he cannot in those circumstances - not having taken any precautionary steps himself to find out what was going to happen about his appeal which had in any event to be heard before 8 August, given the renewed hearing in the county court - complain now that he is not here on today's date and in those circumstances I am afraid that I have decided to proceed to consider the merits of his application in his absence.[14]I return, therefore, to the judgment of Her Honour Judge Coates. I record that I have read the points that Mr Chimarides has set out very clearly in the written documentation that he has filed. His view is that his wife was actually aware of his mother's illness in any event, and could or should have known that she had died before the consent order was arrived at; therefore, he would argue I think, that there was no material non-disclosure when that order was agreed.[15]He is complaining about the fact that the circuit judge did not take the view that Mrs Chimarides should have funded her own application to set aside, and therefore acted much sooner than June 2004 when she actually launched that application. The delay had been because she was waiting for public funding. Mr Chimarides complains that that is not a good reason for delay; she should for instance have borrowed money in order to proceed privately with her application at an earlier date.[16]He raises various other points in the written document (to which I have already referred). He includes at the end of them that there is a change in the personal circumstances because the children now wished to live with him, and that there was an application dated 21 August 2004 for a change of residence which he complains the court has ignored. That, I imagine, ties in with his wish to bring the issue of a children's application for the change of residence before me today. I have considered that particular question and I can say straightaway that that is not a matter for the Court of Appeal. There has not been any order with regard to that against which Mr Chimarides could appeal. I am only concerned with his application in relation to the question of leave having been granted to appeal the consent order out of time.[17]I turn, then, to the reasons that the judge gave for giving leave to appeal out of time. That was an exercise of her discretion and she sets out perfectly clearly in her judgment in a form which I do not intend to go through why it is that she has taken the view that the permission should be granted. She records at paragraph 11 of her judgment that all parties (and that includes Mr Chimarides) have today, as she put it, accepted that the more expeditious way of moving forward is to set the order aside and re-hear the appeal. There is some ground, therefore, for believing that Mr Chimarides had agreed to the course of which he now complains. However, the judge did go on to consider the merits of the application and I do not propose to base my decision, therefore, upon that passage, not having been able to ask Mr Chimarides about it because of his non-attendance today.[18]The judge sets out how it is that the delay has arisen, including that it was the beginning of November when the wife found out about her mother-in-law having died and raised the question with her solicitors so that they would raise it with the other side. She details the steps that were taken and I have seen them also from an affidavit filed by the wife in support of her application to the circuit judge.[19]Difficulty in obtaining public funding was a significant feature. It does at first sight seem a very long time from 7 November 2004 when the husband's solicitors told the wife of her mother-in-law's death, to the 23 June 2004 when they launched the application to set aside the order. But it appears that that was indeed accounted for by public funding issues. There had first to be public funding authorisation to take counsel's advice, then counsel's advice had to be obtained and, following that, of course, the public funding would have needed to be extended. It is clear from the chronology set out in all the papers that that took one up to virtually just before the application to set aside was issued. The husband had told Judge Coates that he had not benefited personally from his mother's demise, and also that his wife had known in any event that she had died before the consent order. But those facts did not persuade the judge that she should not grant leave to the wife to "proceed to appeal to set aside the order of District Judge Forset of 28 October", as she put it in her final sentence of her judgment.[20]I do not consider that Mr Chimarides' proposed appeal against that decision of the judge has any real prospect of success. She gave perfectly good reasons for the exercise of her discretion which was within the normal bounds of the discretion. I therefore propose to dismiss Mr Chimarides' application for permission to appeal against Judge Coates' order.[21]A transcript of this judgment needs to be drawn up as a matter of speed because the matter is back before the lower court on 8 August 2005. (Application dismissed; no order for costs; transcript of judgment to be expedited).