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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 >> Foster v Foster [2002] EWCA Civ 461 (8 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/461.html Cite as: [2002] EWCA Civ 461

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IPSWICH COUNTY COURT
(HIS HONOUR JUDGE THOMPSON)

		Royal Courts of Justice Strand London WC2 Friday, 8th March 2002

Friday, 8th March 2002

1. MR JUSTICE CHARLES: I have before me an application for permission to appeal out of time. The proposed appellant is Mr Foster. The proposed respondent to the appeal is his ex-wife, who I shall refer to for convenience as Mrs Foster. What Mr Foster seeks is permission to appeal against an order of His Honour Judge Thompson, which was made on 30th November 2001. By that order the judge dismissed an appeal brought by Mr Foster against an order of District Judge Evans, which is dated 20th June 2001. By his order District Judge Evans had made an order that Mr Foster do pay a lump sum of £75,000 to Mrs Foster. He did that under the provisions of the Matrimonial Causes Act and on a clean-break basis.
2. Before District Judge Evans the parties were represented, and it is clear from the notice of appeal from the order of District Judge Evans that that was professionally drafted. On the hearing of the appeal before the county court judge Mr Foster appeared in person and represented himself. He has represented himself since then and has appeared before me in person today seeking permission to appeal. He has put his points clearly. As he has explained in his written documents that he suffers from dyslexia, but the documents are perfectly clear and put forward the points that he wishes this court to consider. It is also clear that, as he demonstrated before the judge, he is of the view that District Judge Evans made an award that was too high, having regard in particular to his income and capital.
3. The first point that I should consider is whether or not there should be an extension of time. Mr Foster explains why the application was late. It concerns communications he had with the county court. I say now that if I had thought that I would otherwise have been minded to grant permission to appeal I would have extended the time. In other words, I am not refusing permission to appeal on the basis that the notice is late.
4. However, I am refusing permission to appeal on the application of the relevant rule which is 52.13, which provides as follows:

"Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.

(2) The Court of Appeal will not give permission unless it considers that -

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

5. That is a fairly high threshold for the proposed appellant to pass. In my judgment, notwithstanding that I accept that Mr Foster remains of the view that the order was too high and was wrong, the grounds he raises do not satisfy either limb of that test. I shall explain briefly why.
6. On his appeal to the county court judge Mr Foster raised a number of points in the notice of appeal, his written skeleton argument and in his oral argument. These were dealt with by the judge, as he says, one by one. The judgment is a careful one. In my judgment, the judge correctly applied the approach set out in Cordle v Cordle, which is now reported in [2002] 1 FCR 97, but at the time the matter was before the judge had only very recently been decided. I would add that if the judge had taken the approach that was adopted prior to that decision and thus exercised his discretion anew, it seems to me clear, reading his judgment, that he would have come to the same answer.
7. As the notice of appeal, the skeleton argument and the judgment show, the attack on the decision of the district judge was in round terms that the district judge had made errors in his findings, and in particular as to his conclusions concerning the income and assets of Mr Foster, and thus Mr Foster's ability to raise the lump sum awarded and thus his ability to pay it to Mrs Foster. The judge rejected those attacks for what to my mind are compelling reasons.
8. I now turn to the grounds of appeal in Mr Foster's proposed appeal to this court. Taking them by reference to the written documentation, first, he seeks to reassert that the findings of the district judge as to his income were simply wrong. In this context he seeks to reintroduce an issue as to some concreting that was carried out, and also raises the point that his P60s were not before the district judge, and if they had he argues that a different result would or should have come about. As to the concreting, he told me today that this was a necessary business expenditure for his haulage business, as I understand it, he needed a concrete hardstanding for the lorries.
9. As to the P60s, the county court judge said this (at page 7 of the transcript of the judgment):

"His own income he also contends is much less than the district judge found. He argues that a number of material documents were not disclosed to the district judge, including his tax returns. He sought leave to admit them today. I have refused on the simple basis that tax returns are plainly documents which should have been disclosed in time for the original hearing. The fact that they were not is not a matter which I can do anything about, but I am certainly not going to let in new documents at this stage when the basis of the appeal is as I have spelt out in plain detail."

10. Mr Foster complains about that decision on letting in the additional material. However, in my judgment, the judge was perfectly entitled to take that course in the exercise of his discretion whether or not to admit new material on the appeal. He had regard to the principle as to the availability of that documentation before the district judge, and clearly it was available then. Indeed, Mr Foster makes the point that perhaps those that were advising him should have put it in at that stage. The judge, as I have said, had a discretion to refuse to allow that material in and in my judgment he exercised that discretion lawfully.
11. Additionally, when considering the level of Mr Foster's income, both the judge and the district judge looked at the accounts of Mr Foster's business. The district judge, as I understand it, looked at his accounts as a sole trader, whereas the judge also saw some accounts of a limited company into which Mr Foster had transferred his haulage business, as I understand it to protect his inheritance and other personal assets in case the haulage business suffered hard times and he was left personally liable for its debts.
12. Both the district judge and the judge looked at the profitability of that business. Within that exercise was a need to consider the expenditure on the concreting. The judge and the district judge identified that as an exceptional expenditure in one year (Mr Foster would not dispute that) and reached their conclusions as to the drawings that Mr Foster could make from the business. The judge concluded (at page 13 of the transcript of his judgment):

"In short, the District Judge took the figures realistically, and in a balanced way, and was not misled by the arguments which were put to him suggesting that Mr Foster's income was really extremely low."

13. I should add that both the district judge and the judge concluded that Mr Foster did not understand the accounts of his business and that he was muddled rather than dishonest as to the contentions he was making as to his income; and I would add, his potential for drawing further moneys from the business.
14. Additionally, it is clear to my mind that the district judge and the judge were entitled to reach the findings that they did on the evidence before them. The judge's task, applying Cordle, was in fact to look back to see whether the district judge had erred. However, he did look with some care himself at the evidence which has founded my conclusion that if he had taken the pre Cordle approach he would have reached the same result. I would also add on this aspect of the case that if the district judge had had the P60s before him, or the judge had admitted them and this had led them to conclude that Mr Foster's income should be adjusted downwards, it seems to me that, having regard to their assessment of the ability of Mr Foster as the majority shareholder in the limited company to make further drawings, the potential for further drawings by reference to the historical and actual profitability of the business and his capital assets, the district judge - and I add the judge - would have reached the same overall conclusion; and to my mind would have been entitled to do so. Of course, that is naturally speculation.
15. As to this appeal, in my judgment, the district judge was entitled to come to the conclusions that he did on the evidence before him. As I have explained, the county court judge was entitled to refuse to admit the additional material on the basis that that decision was well within the ambit of his discretion. It follows that this aspect of the appeal is essentially an attempt to re-argue the facts as to Mr Foster's level of income and an attack on the exercise of the judge's discretion to refuse to allow the P60s in. To my mind that basis of attack does not satisfy either limb of Part 52.13.
16. The next allegation in the written documents is that Mrs Foster has a boyfriend with whom she is living. This point was referred to in the skeleton argument before the judge and it is mentioned in his judgment at page 8 of his transcript. The district judge heard evidence about this point. What the district judge said is:

"Mrs Foster was cross-examined and she has no plans to co-habit and no present intention to marry or co-habit. I accept her evidence about that."

17. Clearly, the district judge was entitled to reach that finding on the evidence he heard. Further, to my mind, if Mr Foster was to be able to demonstrate now that Mrs Foster was living with her boyfriend this would not constitute a new event that would enable him to launch a new appeal on the principles set out in Barder v Caluori [1988] AC 20 and the cases that follow and apply it. Accordingly, again that ground does not raise a matter that falls within Part 52.13.
18. In his written submissions and notice, Mr Foster raises the point that his obligations to pay should cease when his youngest child reaches a majority. He did not add to that orally. It seems to me he was wise not to add to it orally because that argument reflects a misunderstanding of the purpose of orders under the Matrimonial Causes Act in favour of a spouse. Additionally - and he did refer to this orally - Mr Foster says that Mrs Foster did not disclose her income properly before the district judge in her Form E or, as I understand it, during the hearing. However, this was a point made and noted by the district judge and is therefore plainly one that was taken into account by the district judge in reaching his conclusion. So neither of those points satisfy the grounds in Part 52.13.
19. I have stood back and looked at the grounds as a whole and asked myself whether I can see any ground not raised by Mr Foster which would entitle him to permission to appeal by reference to issues raised before the district judge and the county court judge, or new events; but none has occurred to me, having regard to the test I have to apply.
20. Finally, I turn to the point which Mr Foster started with orally before me today, which was that he says that he requires further time to pay. The county court judge granted an extension of time. He was able to do so because the appeal was before him. It seems to me that at this stage on an application for permission to appeal I would not have jurisdiction to extend time; but even if I did I would not exercise it on the information before me.
21. Firstly, as to this point, in my view the judge did not err in any way in his assessment in extending time. The problem Mr Foster put forward then, and still puts forward, is that the administration of his late father's estate is not completed. Until it is completed, he says, he will not be in a position to raise the full amount; and there remains some uncertainty as to how long it will be until the estate is fully administered and he is paid out. The judge said it is really anybody's guess, and Mr Foster submission's could be summarised as "how long is a piece of string?" However, it seems to me that this issue is one which should now properly be dealt with in the context of enforcement.
22. Mr Foster has told me that he has taken steps to raise part of the money. He has also made a suggestion to Mrs Foster as to raising a mortgage and him funding it to provide her with a house. It seems to me that again these are matters which should now be dealt with in the context of the manner in which the order is enforced by Mrs Foster; and they are not matters which warrant the grant of permission to appeal or a further extension of time.
23. I repeat that, even if I felt that I had jurisdiction, I would not, at this stage, and on the information before me, exercise it to extend the time of full payment.
(Applications dismissed; no order for costs).