Cart v Cart [2013] EWCA Civ 1006

[2013] EWCA Civ 1006Case No B6/2013/0553
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM BRISTOL COUNTY COURT
HIS HONOUR JUDGE MARSTON
BS02D01174
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/08/2013
Before
LADY JUSTICE GLOSTER
Between
CARTAppellantCARTRespondent
Mr David Burrows (Pro Bono) appeared for Applicant for The Respondents did not appear and was not representedHearing Hearing dates: Friday 14 th June 2013Further written submissions received on 17 June and 11 July 2013
Judgment

Introduction

[1]This is an application by Mr Cart for permission to appeal the decision of HHJ Marston made in the Bristol County Court on 7 February 2013, by which:(i) he refused Mr Cart's application for permission to appeal out of time against an ancillary relief order dated 26 May 2006 made by District Judge Exton; and(ii) refused Mr Cart's application to set aside that order on grounds of material non-disclosure. There has been no previous determination of this application by a single Lord Justice on the papers.[2]Mr David Burrows, a solicitor advocate, appeared on behalf of Mr Cart on a pro bono basis. The court is grateful for his assistance and for his careful and detailed written and oral submissions and chronology.[3]After the hearing on 14 June 2013, at which I gave an extempore judgment and refused (or purported to refuse) Mr Cart permission to appeal against HHJ Marston's order, Mr Burrows raised further points in a e-mail dated 17 June 2013 and in a further eleven page note dated 15 June 2013 attached to that e-mail. In that material, Mr Burrows variously invited me to recuse myself, not to seal the order which I had made on 14 June 2013 and/or alternatively to refer the matter to the full Court. He also questioned the reference in my extempore judgment to the criteria set out in CPR 52. 13 in relation to second appeals and disputed that the present appeal involved a second appeal.[4]In the light of Mr Burrows’ further representations, I have added to, and revised, the extempore judgment which I gave on 14 June. In particular, I have also addressed what, upon reflection, appeared to me to be a jurisdictional problem facing at least one aspect of Mr Cart's current application to this court, as well as the issue of whether a second appeal is involved.[5]Prior to handing down this judgment, and sealing the order, I provided Mr Burrows with a draft of this judgment. I also gave him a further opportunity to make submissions in writing in relation to the jurisdictional and procedural issues raised in my draft judgment. It appears from letters respectively dated 19 March 2013 and 14 May 2013 from Mr Burrows to the Civil Appeals Office (which Mr Burrows provided to me under cover of an e-mail dated 2 July 2013) that Mr Burrows had been in correspondence with the office about a jurisdictional issue which the office had raised in relation to the application of section 55(4) of the Access to Justice Act 1999. It appears that Mr Burrows received no answer to his question as to whether the issue was something the court expected him to deal with at the hearing on 14 June and therefore he assumed that the issue was no longer live. However, as a result of my providing him with the opportunity of addressing the point in written submissions, he has now had an opportunity to deal with that issue.[6]In that period between 14 June and the handing down of this judgment the court did not draw up or seal the order, which I had made on 14 June dismissing the application for permission to appeal.[7]Following a request by Mr Burrows for an extension of time which I granted, on 15 July 2013 Mr Burrows filed further written submissions with the court, extending to some 15 pages.

History of the proceedings

[8]In order to set this application for permission to appeal in its proper context, it is necessary to rehearse, at least in summary form, the history of the proceedings between Mr and Mrs Cart. Mr and Mrs Cart were married in 1984. The divorce petition was filed in 2002, decree nisi was granted in October 2002 and decree absolute granted in January 2003. There are five children of the family, now all over 18.[9]On 21 October 2004 Mrs Cart applied to the Child Support Agency ("the CSA") for a child support maintenance calculation under the Child Support Act 1991 as amended. The application could not proceed immediately by reason of an existing court order for maintenance which had been made in October 2003. Mr Cart was contacted by the CSA by telephone on 9 March 2005 which was accordingly treated as the first effective date for liability. (This appears from page 3 of the "Statement of reasons for decision" issued by the Appeal Tribunal dated 22 October 2007 ("the Tribunal Judgment" to which I refer below.)[10]On 13 January, 1 February and 3 February 2006 an ancillary relief hearing took place in front of District Judge Exton. On 10 March 2006 District Judge Exton gave judgment on the ancillary relief application, making certain orders, in particular in relation to the capital assets of the husband and wife. This provided for the transfer of the matrimonial home, Brick House, to Mrs Cart, Mr Cart to retain certain land near Nuneaton and to have transferred to him a French property, he to retain his shareholding in his company, Bathroom Solutions Ltd ("the Company"), and for Mr Cart to pay Mrs Cart an additional sum of £50,000, out of which she would have to pay her debts of £8,356 and her costs. The judge also provided that there would be a 50 per cent pension-sharing order in Mrs Cart's favour in respect of the Mr Cart's pension, and made various other provisions which were set out in her order dated 26 May 2006. According to paragraph 114 of her judgment dated 10 March 2006, the District Judge said that that was a division of capital 54/46 in the wife's favour, and that:
"A departure from the yardstick of equality is justified given the considerable discrepancy in the parties' earning and potential earnings. Mrs Cart has a maintenance entitlement, but in view of the extraordinary action taken by Mr Cart in respect of the children, and I am referring of course to DNA tests, the recovery of any maintenance is, in my view, likely to be problematical. My order is on the basis of a clean break."
Her order also provided that Mr Cart should not be entitled, on the death of Mrs Cart, to apply for an order for provision out of Mrs Cart's estate.[11]By notice dated 24 March 2006, Mr Cart appealed District Judge Exton's ancillary relief order on the merits. Paragraph 23 of the "Grounds" supporting such notice read as follows:
“23. The judge was wrong as a matter of law to fail to take into account the fact that H is likely to have a further payment required of him as a result of the probable consequences of the variation directions procedure under Child Support Act 1991 as set out in H's advocates' submission to the court. The judge took no or no express, account of this further liability upon H.”
On 18 December 2006 HHJ Barclay dismissed the appeal holding it to be "wholly without merit". His judgment did not expressly address the point that Mr Cart was “likely to have a further payment required of him as a result of the probable consequences of the variation directions procedure under Child Support Act 1991”. Mr Burrows told me that permission to appeal to the Court of Appeal was refused by this court.[12]Subsequently, according to HHJ Marston (see paragraph 4 of his judgment), there was a further application to appeal District Judge Exton’s ancillary relief order on the basis of Barder v Caluori [1988] AC 20. Mr Burrows told me that this was not in fact a Barder appeal, but rather an application by Mr Cart to set aside the ancillary relief order on the grounds that, at the hearing Mrs Cart, had not told the truth about her relationship with another man, and had allegedly returned to live with him, a fact which District Judge Exton in her original judgment had found to be unlikely to happen. Whatever the nature of the application to set aside the order, the application was struck out by Coleridge J on 16 or 17 July 2007.[13]As I have already mentioned, by the time of the hearing before District Judge Exton, Mrs Cart had made an application to the CSA for child support maintenance. Mrs Cart had been notified by telephone on or about 27 January 2006 of the initial calculation made by the CSA in the sum of £80 per week. According to a note by Mr Burrows dated 3 February 2006 (which he tells me was before or available to District Judge Exton at the hearing on 3 February 2006), District Judge Exton was informed that, as at the date of the hearing, the husband had been assessed to pay child support maintenance at the rate of £83 per week from an effective date of 9 March 2005. (The note actually refers to a figure of £83 "per month" but that was clearly meant to be a reference to £83 per week. This is supported not only by the subsequent judgment of the Appeal Tribunal dated 22nd of October 2007 to which I refer below, but also by what Mr Burrows himself told me at the hearing.)[14]Importantly, in paragraph 2 of that note, Mr Burrows correctly and rightly envisaged the possibility that there might be an application by Mrs Cart for a variation direction, in other words an application to increase the child maintenance, or the child support, that Mr Cart had been ordered to pay. The note read:
"If wife applies for a variation direction (Child Support Act 1991 ss 28 A (3) or 28 G (1); Child Support (Variations) Regulations 2000 reg 4) - ie alongside present application or as a supersession to any existing decision, it would be on the basis of lifestyle inconsistent with declared income."
[15]Paragraph 4 of the note read:
"The effective date for commencement of the payments is at the date of the application or later, if application follows the calculation decision. 5. Wife could have applied for a variation in these proceedings but chose to apply for a calculation."
[16]I refer to that note because it makes perfectly clear that Mr Burrows, who is and was, at the time, a very experienced solicitor advocate in this area of law, was well aware as at the date of the hearing before District Judge Exton that Mrs Cart might make such an application for a variation, and that any revision might be retrospective. Mr Cart and Mr Burrows would also have been well aware as at the date that Mr Cart had received two substantial dividends from the Company (both in the sum of £150,000 gross, on 27 February 2004 and 30 April 2005 respectively; see paragraph 63 of the District Judge's judgment.[17]It appears clear from the subsequent Tribunal Judgment that Mrs Cart had raised with the Child Support Agency on a number of occasions the question of dividends which Mr Cart had received from the Company: these included: an occasion before the end of 2005, prior to the notification of the calculation; in the course of the telephone conversation on or about 27 January 2006 when she was notified of the calculation; and thereafter on 30 January 2006 and 6 March 2006. It appears that Mrs Cart complained that the very high level of dividend was not reflected in the calculation.[18]Further, according to the Tribunal Judgment:
"Mrs Cart had sought an outcome urgently before the ancillary relief hearing so that information could be put before the court. On hearing the outcome she asked for a delay in issuing the assessment at the low level pending the ancillary relief hearing because of the dividend. That was not agreed. The decision [a reference to the decision of 27 January 2006] was not revised. She asked on 30 January 2006 for the fax number so that her solicitor could write in respect of the dividend. It is not clear if the letter was received. It has not been put before the Tribunal, but that may be because of the failure by the agency to understand its relevance. No formal record of a request for a revision or notification of the refusal to revise was issued. The hearing in ancillary relief between Mr and Mrs Cart took place over 1 February 2006 and 2 February 2006 the judgment was issued a month later. In the hearing, the facts in relation to Mr Cart's dividend were all fully explored… Mrs Cart rang in again on 6 March 2006 and discovered that the calculation had been finalised as at the date of her last conversation and the officer concerned had moved elsewhere. A variation form was issued to her. This was the first time the variation pack was issued. That telephone call [i.e. the call on 6 March 2006] is the one treated at the first application for a variation in the decision under appeal. She submitted a [variation] pack on 16 March 2006, not received or else lost at the office…" (Emphasis supplied.)
[19]Consequently, as a result of that application for revision, which was treated as having been made on 6 March 2006 (see page 5 of the Tribunal Judgment), the Secretary of State made a variation decision on 16 August 2006 which was said to take effect from 1 March 2006. The decision, which was notified on 17 August 2006, was to grant a variation based on the information relating to the dividends and to increase the figure for child maintenance from £83 to £500 per week as from 1 March 2006. The liability was changed to £300 per week from 30 August 2006 when two of the children ceased to be qualifying children.[20]On 31 August 2006 Mr Cart requested the Secretary of State to revise his decision of 16 August 2006. On 14 February 2007 the Secretary of State refused to revise his that decision and accordingly, on 27 February 2007, Mr Cart applied to the Appeal Tribunal.[21]The hearing was conducted before the Appeal Tribunal (Mrs Martha Street) on 22 October 2007 and adjourned to permit comment by Mrs Cart on substantial additional evidence provided on Mr Cart's behalf on that date. Further submissions were received, and a reserved decision without a further hearing was given by the Appeal Tribunal on 12 December 2007. By that decision the Appeal Tribunal effectively confirmed (albeit on a different basis) the Secretary of State's decision to increase the weekly child support maintenance to £500 but additionally the Appeal Tribunal backdated the increase to the earlier date of 30 April 2005 (see page 2 of the Tribunal Judgment). By letter dated 14 January 2008 Mr Cart sought leave to appeal that decision and requested a full statement of reasons. On 27 February 2008 the Appeal Tribunal promulgated its "Statement of reasons for decision" (which I have already defined as the Tribunal Judgment).[22]Subsequently, in March 2008, Mr Cart appealed to what subsequently became the Upper Tribunal against the decision of the Appeal Tribunal.[23]On 17 April 2008 the Child Support Agency wrote to Mr Cart, notifying him of its intention to apply to a Magistrates Court for a liability order in respect of a sum of in excess of £54,000 then outstanding in respect of arrears accrued from 9 March 2005. This figure was calculated on the basis determined by the Appeal Tribunal.[24]It was only after Mr Cart received the letter dated 17 April 2008 that on 20 May 2008 Mr Cart lodged an appeal in the Bristol County Court for permission to appeal out of time and to set aside the order of District Judge Exton dated 26 March 2006. Mr Cart's application was made on the basis of the occurrence of an alleged new event, which he contended undermined the basis of District Judge Exton's decision, in accordance with the principles articulated in Barder v Caluori [1988] AC 20. Subsequently, the notice of appeal was also amended to include an allegation of non-disclosure based on the allegation that Mrs Cart had not informed District Judge Exton that she had applied for a variation of the child support maintenance calculation. Mr Burrows informed me (although I have not been shown a copy of the sealed order) that on 12 January 2009 HHJ Rutherford granted permission to make this amendment and also adjourned the application until after Mr Cart's appeal to the Upper Tribunal against the child support order had been decided.[25]On 30 January 2009 the Upper Tribunal (consisting of the Senior President Carnwath LJ, and Tribunal Judge Jacobs) heard the appeal from the Appeal Tribunal's decision. On 1 April 2009 the Upper Tribunal handed down its decision dismissing Mr Cart's appeal on the three grounds for which permission had been given and declined permission to reopen the fourth: [2009] UKUT 62 9ACC. Mr Cart then took separate judicial review proceedings, which concluded in a decision of the Supreme Court, Cart v Upper Tribunal [2011] UKSC 28, given on 22 June 2011, in which the Supreme Court dismissed Mr Cart's appeal against the Divisional Court and the Court of Appeal's dismissal of his claim for judicial review. That ultimately brought an end to Mr Cart's challenge to the Child Support Agency’s determination that he should pay £500 per week for the period from 3 May 2005 to 29 August 2006 and £300 per week from 30 August 2006.

Mr Cart's appeal to HHJ Marston

[26]Once the Supreme Court had finally brought those appeal proceedings to an end, Mr Cart's application to appeal against the decision of District Judge Exton dated 26 May 2006 came before HHJ Marston on 16 January 2013. This was effectively Mr Cart's third attempt to appeal, or set aside, District Judge Exton's judgment. Mr Cart was represented by Mr Burrows, again on a pro bono basis. Mrs Cart was unrepresented, although she attended and was accompanied by a McKenzie friend. Mr Burrows told me that there was a hearing on that date which took less than half a day and that the judge reserved the reasons for his decision. It appears however that the judge announced his decision on 16 January 2013 and made an order on 7 February 2013 (see Mr Cart's notice of appeal to this court).[27]At the hearing before HHJ Marston Mr Cart sought permission to amend his appeal notice for a second time to argue that District Judge Exton had wrongly double-counted in respect of a dividend; this application was refused by the judge but the point is not the subject of any application for permission to appeal to this court and accordingly I need not address it any further.[28]Before HHJ Marston Mr Cart relied on two principal grounds to support his application for permission to appeal out of time against, and/or to set aside District Judge Exton 's[29]On 7 February 2013 HHJ Marston made an order dismissing both Mr Cart's application for permission to appeal out of time against District Judge Exton's order and his application to set that order aside. His reasons for making this order were set out in a judgment dated 29 July 2013. In summary, and so far as material for the purposes of the present application, he held: i) as to the first alleged Barder event, namely that there had been a change of law since the original order, he held that the change of law was not the sort of event that Barder contemplated; I need not address this issue further as it did not feature as a potential ground of appeal to this court; ii) as to the second alleged Barder event, that the arrears of child support maintenance were not a new unforeseen and unforeseeable event; and that, coupled with the long delay in bringing the appeal some 23 months after the original order, the application did not have sufficient merit or chance of success to justify permission to appeal; in particular, the arrears had accrued because Mr Cart had failed to pay his liability for such arrears; iii) as to the ground of alleged material non-disclosure, that he was not convinced that Mrs Cart "had or had not something to disclose i.e. that she had or had not started variation proceedings"; but that, in any event, if there had been a non-disclosure, the alleged non-disclosure was not material to the outcome of the ancillary relief hearing.[30]Accordingly he concluded that there were no grounds in Mr Cart's appeal notice that disclosed that the appeal had any prospect of success, which, coupled with the fact that the appeal was some 22 months out of time, persuaded him to refuse permission to appeal District Judge Exton's order out of time and to dismiss Mr Cart's application to set that order aside.

Mr Cart's Grounds of Appeal to this court

[31]Mr Cart's Grounds of Appeal to this court, as amplified in Mr Burrows' skeleton argument, complain in summary: i) that HHJ Marston failed to identify the correct test for a Barder appeal; ii) that the judge wrongly found that the CSA arrears were foreseen and foreseeable; iii) that the judge identified finality in litigation as a basis for rejecting a Barder application and an application to set aside, but that he overlooked the balancing of public interest required of the courts in this jurisdiction; iv) that the judge wrongly identified the application for permission to appeal as being 23 months after the original order, whereas that was an incorrect approach as Mr Cart did not have notice of the variation directions and until after April 2008; (however, as Mr Burrows accepted during the course of submission, in fact that point was not a good one because, by 31 August 2006 Mr Cart had sought from the Secretary of State the revision of the variation decision and therefore clearly knew, on a worse case basis, what the position was by that date; on any basis therefore there had been 21 months delay;) v) that the judge had wrongly failed to make up his mind as to whether there had been a non-disclosure and had wrongly expressed the view that he was: "not convinced that the wife had or had not something to disclose, either that she had or had not started variation proceedings, but I am convinced that such a disclosure was, in any event, not material to the outcome of the ancillary relief hearing."; Mr Cart complained that the judge should have made up his mind whether or not there had been a non-disclosure and should have found that such non-disclosure was material; vi) that the judge failed to take into account the consequences of the non-disclosure and that that was a serious flaw because, had the District Judge known the liability arising from the pre-existing variation direction application, she would have been required to take it into account under the Matrimonial Causes Act; therefore, the non-disclosure was considerable and material; vii) in particular such non-disclosure was material because, had District Judge Exton known that the Secretary of State would be required to make a calculation on the basis of an income which included the dividends, District Judge Exton would have made allowance for it in her order; for example, she might not have ordered the husband to pay a lump sum of £50,000 or it might have been reduced; alternatively, District Judge Exton could have made a conditional order which might have depended upon the outcome of the child support maintenance calculation; alternatively or in addition, she might have made a different order in relation to the allocation of Mr Cart's pension; she might not have provided for Mrs Cart to enjoy 50 per cent of the husband's pension; viii) in addition, such non-disclosure was material because if what was subsequently known had been known at the time, District Judge Exton would have known that the arrears of £17,000 in fact accrued as at 7 February 2006 would have been 2.84 per centof the couple's assets; by the end of 2006 the debt was 5.42 per cent of assets, and, were the assets the same now, the debt would be 16.23 per cent of assets; all the arrears would have had to have come from Mr Cart and thus Mrs Cart's capital position relative to that of her husband would improve by 32.5 per cent.[32]For the above reasons, and the additional arguments contained in his skeleton, Mr Burrows on behalf of Mr Cart submitted that Mr Cart should be granted permission to appeal.

Disposition

[33]I refuse Mr Cart permission to appeal HHJ Marston's order. My reasons for my refusal are the following.

Jurisdiction

[34]This court has no jurisdiction to entertain an appeal against paragraph 2 of HHJ Marston's order in so far as he refused permission to appeal out of time against District Judge Exton's order, at least to the extent that the application was based on an alleged Barder event. This is clear from section 54(4) of the Access to Justice Act 1999 which provides:
“No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”
[35]This is reflected in paragraph 4.5 of Practice Direction 30A supplementing FPR 30, which is in the following terms: “There is no appeal from a decision of the appeal court to allow or refuse permission to appeal to that court (although where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request that decision to be reconsidered at a hearing – see section 54(4) of the Access to Justice Act 1999 and rule 30.3 (5) (Permission))."[36]The notes at CPR 52.3.8 also make clear that the effect of a refusal of permission to appeal by a junior appellate court (here HHJ Marston) is that there is no jurisdiction in the Court of Appeal to hear an appeal against the decision of a junior appellate court refusing permission to appeal (unless it can truly be said that there was no decision at all): see Riniker v University College London [2001] 1 WLR 13 and Clark (Inspector of Taxes) v Perks [2001] 1WLR 17 at paragraph 20. Nor does the Court of Appeal itself have power to grant permission to appeal in circumstances where the junior appellate court has refused permission; see ibid and the cases cited in the notes at CPR 52.3.8. It is clear that the discretion whether or not to grant leave to appeal out of time on the basis of an alleged Barder event was that of HHJ Marston as the appellate judge; see per Lord Brandon in Barder at pp 43H-44B.[37]It cannot be said that, in relation to his ground relying upon an alleged Barder event, Mr Cart was not appealing at all, but rather asking the county court to set aside its own order pursuant to FPR 2010 r 4.1(6); and that, accordingly, all that Mr Cart was doing was seeking permission to appeal the refusal to do so by the county court. Not only does Barder itself make it clear that the correct characterisation of the process is an appeal; but also this court has made it clear in Roult v North West Strategic Health Authority [2009] EWCA Civ 444 that, in circumstances where it is alleged that a subsequent unforeseen event has destroyed the assumption on which an order has originally been made, it is not appropriate for the original court to exercise its powers under CPR 3.1(7) (the CPR rule providing that a judgment or order may be set aside).[38]Mr Burrows referred me to Dixon v Marchant [2008] EWCA Civ 11, [2008] 1 FLR 655 and Judge v Judge [2008] EWCA Civ 1458, [2009], 1 FLR 1287 (in so far as it was not a set aside application). He submitted that these cases were examples of post-1999 Barder appeals to the Court of Appeal which "appear to have been second appeal [sic]; and in none of these does the court seem to have addressed the s 54(4) point". He submitted that these cases would not have got to the Court of Appeal on the Barder point if section 54(4) had applied.[39]However, I do not derive any assistance from these cases in the circumstances of the present case. The point is not whether the appeal is a second appeal, as Mr Burrows seemed to suggest, but rather whether the attempted appeal is against a refusal by an appellate court (in this case HHJ Marston) to grant permission to appeal to that court (i.e. the County Court.). In Dixon v Marchant the judge had actually entertained an appeal and made a decision on it. Likewise, Judge v Judge was not a case where there had been any refusal of an application for permission to appeal.[40]Accordingly, in relation to this aspect of Mr Cart's appeal, I conclude that this court has no jurisdiction to entertain any application for permission to appeal against HHJ Marston's order in so far as he refused permission to appeal out of time against District Judge Exton's order, at least to the extent that the application was based on an alleged Barder event. Accordingly I decline to entertain such application.[41]In relation to Mr Cart's further ground, namely that HHJ Marston was wrong to dismiss Mr Cart's application to set aside District Judge Exton's order on the grounds that it was obtained as a result of non-disclosure on the part of Mrs Cart, I am prepared to proceed on the basis (without deciding the point) that such refusal was a substantive refusal to exercise the county court's original (as opposed to appellate) jurisdiction to set aside District Judge Exton's order pursuant to FPR 2010 r 4.1(6), rather than the determination, adversely to Mr Cart, of an appeal against that order, or of an application for permission to appeal against that order on the grounds of non-disclosure. Some support for such an approach can be found in the decision of Patten J in Lloyds Investment (Scandinavia) Ltd v Christen Ager-Hanssen[2003] EWHC 1740 (Ch), where he specifically envisaged that an application might be made pursuant to CPR 3.1(7) in circumstances where there had been material non-disclosure.[42]It would appear however that HHJ Marston approached the matter on the basis that, even in relation to this ground, he was being asked for permission to appeal and that accordingly he was exercising jurisdiction as a junior appellate court in refusing permission; see paragraphs 11 and 12 of his judgment. If that is the correct procedural characterisation, then likewise this court has no jurisdiction to entertain an application for permission to appeal. Merits of Mr Cart’s applications for permission to appeal (1). Application based on an alleged Barder event[43]As I have already said, in my judgment this court has no power to grant permission to appeal against HHJ Marston’s refusal to give permission to appeal out of time against District Judge Exton's order to the extent that the application was based on an alleged Barder event. However, on the assumed basis that my procedural characterisation of HHJ Marston's decision is wrong, and on the assumption that I do indeed have jurisdiction, as I said at the oral hearing, I do not consider that, applying the test set out in CPR 52.3(6), Mr Cart has any real prospect of success on the merits of any such appeal or that there is any other compelling reason why the appeal should be heard.[44]The first ground relied upon by Mr Cart was an alleged Barder event, which he claimed invalidated the basis of the original order. Mr Burrows submitted that the event was that subsequently the Appeal Tribunal, as confirmed by the Upper Tribunal, increased the child support maintenance rate to £500 a week (up from the £80/£83 per week as at February 2006) and backdated it to March 2005; that meant that, looking at the position retrospectively, as at March or February 2006, there was, although no one knew it at the time, a huge prospective liability on Mr Cart to pay increased maintenance; that, submitted Mr Burrows, undermined the assumptions upon which District Judge Exton's order was based.[45]I do not consider that Mr Cart has any realistic prospect of an appeal against HHJ Marston’s decision on this point. Contrary to Mr Burrows’ submissions, the judge correctly considered the conditions necessary for a Barder appeal. He clearly considered the first condition, namely whether new events had occurred since the making of the order which invalidated the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The judge came to the conclusion that the events relied upon (and in particular the prospective liability for backdated arrears of child support maintenance) were not a new or unforeseen event; and that any appeal would not have sufficient merits or chances of success to justify the grant of permission. I agree with the judge that the events relied upon cannot be characterised as being a Barder type event. At the time of the hearing before District Judge Exton, it was clearly in the contemplation of Mr Cart and his advisers, including Mr Burrows, that there might well be a future variation to the figure for child support maintenance, which might result in a consequent increased liability which might retrospectively be backdated. Moreover that possibility that, if the wife did make an application for an increase, and obtained a variation, there would be substantial figures of child maintenance due that might be backdated, was also specifically brought to the attention of the District Judge by Mr Burrows; see his note dated 3 February 2006; and also paragraph 23 of Mr Burrows' "Grounds" of appeal dated 24 March 2006. Moreover as is clear from District Judge Exton's judgment, Mr Cart and Mr Burrows were well aware of the substantial dividend payments which had been received by Mr Cart, which clearly gave rise to the real risk that there would be a substantial increase in the child support maintenance which Mr Cart would be required to pay, if an application for variation were made.[46]Thus I agree with HHJ Marston’s conclusion that, in circumstances where Mr Cart and his legal advisers were well aware of the potential risks, the fact that the child support maintenance was subsequently increased cannot, of itself, amount to a new unforeseen and unforeseeable event so as to displace the assumptions that were before the District Judge or the basis upon which the District Judge proceeded, such as to give rise to any real prospect of success of an appeal on this basis.[47]Nor, contrary to Mr Burrows' submissions, does the fact that HHJ Marston regarded the build-up of the arrears as attributable to Mr Cart's own conduct, in refusing or being financially unable to pay the arrears, undermine his conclusion that an appeal on Barder grounds would have no real prospect of success. I am prepared to assume for the purposes of this hearing that evidence which Mr Cart seeks to put in on any appeal, would demonstrate that Mr Cart is not in a financial position, or may not be in a position, to pay the arrears. But that is not the point. The point is whether the assumptions upon which the District Judge reached her conclusion have been eroded by subsequent events, and again, even if the arrears are there not because of the husband's deliberate failure to pay them but simply because of an inability to do so, I agree with HHJ Marston that, in all the particular circumstances of this case, that was not a new event, or change in events, that undermined the original decision of the District Judge. Certainly it does not afford any real prospect of success to Mr Cart in an appeal to vary the financial provision made by District Judge Exton's order.[48]Mr Burrows' next criticism of HHJ Marston was that he wrongly approached the matter on the basis that there had been delay of 23 months in bringing the appeal; Mr Burrows submitted that in effect there had been no delay by Mr Cart in challenging the decision, because it was only "after April 2008" that Mr Cart had the information on which to file an application. That is wrong. HHJ Marston was perfectly entitled to come to the conclusion that Mr Cart's application for permission to appeal out of time had not been made reasonably promptly in the circumstances of the case - the third condition which has to be satisfied for the application of the Barder principle. It is clear from page one of the Appeal Tribunal judgment that Mr Cart knew from 31 August 2006 at the latest (when he sought a revision of the decision) that the Secretary of State had made a decision to increase the child support from £83 per week to £500 per week, retrospectively from at least 1 March 2006. But no application for permission to appeal was made in August 2006, in the light of the increased liability, nor was any application made even in February 2007, when the Secretary of State refused to revise his decision dated 16 August 2006 increasing the child support. Indeed Mr Cart did not issue what was by then his third notice of application for permission to appeal against (or set aside) District Judge Exton's order until May 2008. I see no justification for interfering with the exercise of HHJ Marston’s discretion that Mr Cart's delay in bringing the application for permission appeal was another reason for refusing him permission to do so.[49]Mr Burrows' next complaint was that HHJ Marston identified finality in litigation as a basis for rejecting a Barder application and an application to set aside, but that he overlooked the balancing of public interest required of the courts in this jurisdiction. I see no basis for any criticism of the exercise of discretion by HHJ Marston in this respect. Given the long-running saga of these proceedings, and the repeated attempts by Mr Cart to appeal or set aside District Judge Exton's order, HHJ Marston was clearly entitled to take finality into account and to take the view, in the exercise of his discretion, that such potential injustice to Mr Cart (if any) of which Mr Cart complained, did not justify any reasonable prospects of success on an appeal.[50]Accordingly, even if (contrary to my view) this court had jurisdiction to consider whether permission to appeal should be granted, I would decline to give such permission on the grounds that there is no realistic prospect of this court interfering with the exercise of HHJ Marston’s discretionary decision and there is no other compelling reason why an appeal should be heard. (2). Application based on alleged non-disclosure[51]I take the view that Mr Cart has no real prospect of success in relation to this aspect of his proposed appeal and that there is no other compelling reason why the appeal should be heard.[52]Mr Burrows complained that the judge had wrongly failed to make up his mind as to whether there had been a non-disclosure and had wrongly expressed the view that he was: "not convinced that the wife had or had not something to disclose, either that she had or had not started variation proceedings, but I am convinced that such a disclosure was, in any event, not material to the outcome of the ancillary relief hearing."; Mr Burrows submitted that the judge should have made up his mind whether or not there had been a non-disclosure, should have found that there had indeed been a non-disclosure on the part of Mrs Cart, and should have found that such non-disclosure was material.[53]In my judgment Mr Cart has no real prospect of success of an appeal on this issue. The complaint is that Mrs Cart did not indicate that, at the time of the hearing before District Judge Exton she had already made an application for a variation to the assessment that had been made earlier that the husband was to pay child support maintenance of £83 per week. But the circumstances described in the Appeal Tribunal's judgment at pages 4, 5 and 10, demonstrate that, although her telephone call to the Child Support Agency on 6 March 2006 was treated as the first application for a variation in the assessment, and although in previous telephone conversations in 2005, and in January 2006, she had raised the point that the original calculation did not take account of the substantial dividends which Mr Cart had received from the Company, as of the dates of the hearing before District Judge Exton (13 January, 1 and 3 February 2006), no such variation application had actually been made or was subsequently treated as having been made. I do not consider that the fact that, at such hearings, she did not apparently refer to the fact that she had complained over the telephone that the Child Support Agency's calculation did not take account of the substantial dividends received by Mr Cart, amounted to any non-disclosure on her part.[54]Moreover, as I have already said, it was perfectly obvious to Mr Cart, and his very experienced solicitor advocate, Mr Burrows, at the time of that hearing, that there was a very real risk that Mr Cart would have to pay substantially more than £83 per week by way of child support maintenance based on the amount of the dividends received by Mr Cart. It was perfectly clear that it was highly likely that Mrs Cart would make an application for variation; the amount of Mr Cart's income from dividend payments or otherwise would clearly have been well known both to Mr Cart and to Mr Burrows; Mr Burrows would have been able to advise Mr Cart appropriately that, whatever subsequent changes in the law, there was clearly a risk that, in the light of his income at that stage, he would have to pay greater amounts by way of CSM if an application for variation was made.[55]In such circumstances there are no grounds for criticising HHJ Marston for not deciding whether or not there was non-disclosure. On the facts available to me, I would have held that there was no non-disclosure in the real sense of that word; there is certainly no real prospect of succeeding on appeal on this issue.[56]But even if it could be said that Mrs Cart should have informed the District Judge of the fact that she had been in communication with the Child Support Agency, asking them to take into account the dividend payment in its calculation of child support maintenance, there is no merit in the argument that such non-disclosure was material and there is no reasonable prospect of appeal against HHJ Marston's conclusion on this issue. Given Mr Cart's substantial actual known dividend income, there was clearly a risk as at the date of the hearing before District Judge Exton, which was clearly known to him and his advisers that, at some future date, he might be held liable to pay increased child support maintenance, and that was a matter which clearly had been ventilated before the District Judge.[57]Accordingly, I refuse permission to appeal on this aspect of HHJ Marston’s judgment. Mr Cart has no real prospect of success on appeal and there is no other compelling reason why an appeal should be heard.

Recusal application

[58]Contrary to Mr Burrows' submissions, there are no grounds for recusing myself from hearing this application. The fact that, in my oral ex tempore judgment, I referred to the provisions of CPR Part 52.13(2)(a) and (b) and said that: “Without turning to a consideration of the requirements or the criteria contained in CPR Part 52.13(2)(a) and (b), I take the view that Mr Cart does not have a realistic prospect of success on this appeal, and for that reason alone I would refuse this application. However, I am not satisfied that the appeal raises an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear it. “ does not provide any basis for a recusal application. On my further analysis of the procedural position, and my characterisation of HHJ Marston’s decision (and contrary to my initial view), it would not appear that a second appeal is involved in this case. However my reference to the criteria in CPR Part 52.13(2)(a) and (b) in my extempore judgement, in no way undermines my view that the criteria in CPR Part 52.3(6) have not been satisfied.

Conclusion

[59]Accordingly, I decline to entertain Mr Cart's application for permission to appeal against HHJ Marston’s refusal to give permission to appeal out of time against District Judge Exton's order. If, contrary to my view, I did have jurisdiction to hear such application, I would refuse permission to appeal on the grounds that, on its merits, such appeal has no real prospect of success and there is no other compelling reason why the appeal should be heard. I also refuse Mr Cart's application for permission to appeal against HHJ Marston’s decision not to set aside such order on the grounds that it also has no real prospect of success and there is no other compelling reason why the appeal should be heard.

order

i) The first ground was that a Barder event had invalidated the basis of the original order. Two events were relied upon: a) The first was that there had been a change of law since the original order, and the previous refusal by HHJ Barclay and the Court of Appeal to grant permission to appeal in 2006/2007; it was said that District Judge Exton had wrongly found that Mr Cart had been reckless about his expenditure, that she had wrongly approached the matter on the basis that the burden of proof was on Mr Cart , and that the decision in Vaughan v Vaughan [2007] CWCA Civ 1085 had changed the law in this respect. b) The second event relied upon was that there was, because of the order of the Appeal Tribunal (as confirmed by the Upper Tribunal) that Mr Cart should pay £500 per week as opposed to the original £83 per week, there was, viewed retrospectively, a massive amount of arrears of child support maintenance in respect of which Mr Cart was liable, not only at the date of the hearing before District Judge Exton, when the figure was £11,000 (according to the Notice of Appeal), but also £23,400 by May 2006 and as at the date of the hearing before HHJ Marston, the sum of over £100,000. The assumption that he would be paying on a much lower basis was the assumption upon which the District Judge made her decision. ii) The second ground was that Mr Cart's former wife had failed to disclose that she had, prior to the hearing before District Judge Exton in February 2006, applied for a variation direction. In consequence Mr Cart contended that, when District Judge Exton gave her judgment in March 2006 (although her order was not made in fact until May), she could not have known that Mr Cart would be liable for substantial arrears of child support maintenance from 9 March 2005 and that this child support maintenance liability would continue at a rate which could not have been predicted by the District Judge. The contention was that this non-disclosure was material given the scale of his liability for arrears. It was said that the non-disclosure of the fact that an application had been made for a variation was material, because it prevented the District Judge from performing her discretionary exercise under the Matrimonial Causes Act 1973 and, in particular, that it caused the District Judge to fail to take account of the obligations and responsibilities of Mr Cart in the foreseeable future. It was submitted that the consequences of the non-disclosure were that District Judge Exton did not know that Mr Cart would have been liable for substantial arrears of child support maintenance from 9 March 2005 and, had she known, she would have had to have taken it into account in making her ancillary relief order. For this reason it was said that the District Judge's order should be set aside.

Cited in 1 later judgment