C v C [2007] EWCA Civ 301

Case No (1) B4/2007/0003 & (2) B4/2007/0289[2007] EWCA Civ 301
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(1) HIS HONOUR JUDGE DARROCH
(2) HIS HONOUR JUDGE BARHAM
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 1 March 2007
Before
LORD JUSTICE THORPE
Between
CRespondent2) IN THE MATTER OF C (Children)
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is Mr C’s application for permission to appeal the judgments and orders given in the Norwich County Court in proceedings essentially between himself and his former wife. The first hearing in respect of which he seeks permission took place on 27 January 2006 in front of HHJ Barham. As the judge recorded, the parties were parents of two children living with their mother in Norfolk since separation on 30 September 2004. The former matrimonial home had been in Hampshire. The hearing that the judge conducted was a fact-finding hearing, given that the mother had made serious allegations of abuse against the father. The judge directed himself as to the law, particularly that the burden of proof was on the mother and that the standard of proof was flexible: the more serious the allegation, the stronger had to be the evidence that it did occur on the balance of probabilities.[2]The judge heard both the parties give evidence, telling an unusual story. The judge formed a critical view of the husband’s credibility and added extraneous circumstances which led him to the conclusion that the mother’s allegations were in the main made good, although in a number of instances he did not accept that she had proved her case. The judge was working off a schedule of some 16 itemised allegations. That concluded the judge’s function on that day and on that basis I turn to the second order in respect of which permission is sought, that is the order of HHJ Darroch of 8 November 2006.[3]He was hearing the defended divorce between the parents. The wife had filed her petition asserting conduct and the husband had put her to proof. He said at the outset that the wife had sought to rely on the judgment and findings of HHJ Barham which would unquestionably have amounted to sufficient grounds for pronouncing the decree. But the judge said that he felt he had to hear oral evidence because the husband had the right to defend the matter and he the judge had to make his own independent findings of fact. He then heard evidence from the wife in the witness box and invited the husband to cross-examine. The judge in his judgment records the development thus:
“The husband put one or two questions particularly the date as to when they first lived together and then said, and I confirmed this in my notebook: ‘I do not propose to put any further questions to this court because it is selective, I am not getting a fair hearing, I do not wish to play a further part in these proceedings. I understand the court may grant a divorce’.”
On that basis the judge proceeded to hold that the mother’s evidence was credible and that she had sufficiently proved her case and he granted the decree nisi.[4]Now it seems that Mr C did try and lodge an appellant’s notice in this court some time later that month and arguably within time, but for reasons which have not been explained that appellant’s notice was not actually filed until 2 January, so it is technically out of time. Given the circumstances I would not place any emphasis on that breach. What is more serious is that the notice of application seeking to appeal the fact findings of HHJ Barham was not received in this court until 13 February 2007; it was thus over 50 weeks out of time.[5]Now Mr C has addressed me this afternoon most courteously. He clearly has deeply held convictions that he has been the victim of injustice. He feels that there has been no proper concentration on documents which he holds in his possession and which he believes to be relevant. He also tells me the history of an outing to the court in Kings Lynn in August last year which he conceives was some sort of conspiracy to set him up as being in contempt of court. He also has concerns that documents which he had sent to the court were improperly removed from its registry and he is concerned about the part played in this construction of injustice by Mrs T.[6]It is difficult I think for Mr C to understand how limited is the role of the Court of Appeal in respect of proceedings properly conducted in an inferior court. Mr C was represented by counsel at the hearing before HHJ Barham. The application that he makes for permission to appeal that order is hugely out of time. The judge was conducting a fact-finding investigation. He came to clear adverse views about Mr C’s credibility. He found the majority of the allegations proved. Mr C has asserted that his solicitors were incompetent and that may be so. If that is so he has a cause of action against them, but he was represented by counsel and I cannot see any single basis upon which permission to appeal could properly be granted.[7]Much the same goes for the decree of divorce. Mr C brought the inevitable on his head when he declined to proceed with cross-examination, which would have led to him giving his contrary account from the witness box at the conclusion of the wife’s case. But seemingly he well understood what he was doing when, as I have already recorded, he stated his understanding that the court might grant a divorce.[8]Again there is no conceivable role for this court. These are all questions of fact. They are decided by experienced judges in the County Court. There is no evidence of any misdirection in law; indeed the only clearly recorded direction, that of HHJ Baran, is plainly right.[9]So for all those reasons these applications, each of them, are refused.

Order

Application refused.