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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 >> Gill v Draper [2013] EWCA Civ 58 (15 January 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/58.html Cite as: [2013] EWCA Civ 58

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HORSHAM COUNTY COURT
(HER HONOUR JUDGE RAESIDE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th January 2013

Lord Justice Thorpe:

1. The applicant, Mr Draper, seeks permission to appeal the order of HHJ Raeside sitting technically in the Horsham County Court but in fact on transfer in Brighton. It was an unusual situation, for defended divorces nowadays are very rare. The couple are comparatively young, the marriage was comparatively brief and there is no doubt that it had seemingly broken down, since at the date of the trial the parties had been living apart and without communication for about a year. Undoubtedly the applicant has very strong feelings which led him to defend the suit and which now lead him to apply for permission to appeal.
2. It is on any view a sad case because the parties would probably never have found themselves in the county court with a defended suit if a number of business ventures in the catering trade had not stacked up and failed. Had they proved successful in business, probably the marriage would have survived. But the financial failures and the resulting pressures undoubtedly bore on the wife's stability and resilience and undoubtedly led to her withdrawing from the marriage and terminating communication with the husband.
3. The pleadings are directed all to these financial issues. The wife's particulars of the conduct alleged are relatively brief, seven paragraphs in all. The husband's response is considerably more elaborate, and essentially takes issue with the fundamental assertion that he had failed in business, that he had acted irresponsibly if not recklessly and that he had a dependence on alcohol.
4. So at the trial it was the judge's obligation to hear the parties and make clear findings of fact. There is no doubt that she fulfilled that obligation, as is demonstrated by her brief judgment which, having set out the nature of the case and the essential background and the respective cases of the parties, comes to a clear conclusion in paragraphs 8 and 9 when she both finds that the marriage has irretrievably broken down but, essentially and conclusively, that the husband had behaved in a way that the petitioner could not reasonably be expected to accept. Those are the two crucial findings that would be necessary to found the grant of a decree nisi. They have been clearly made by the judge and it is for the judge of the county court to hear the evidence and to reach findings of fact.
5. Mr Draper has taken some procedural points. He complains that the transfer came at a very late stage and that his application for adjournment was not accepted, he complains that the medical evidence relied upon by the wife was produced at a late stage and without him having proper opportunity to contest it and he complains that his endeavour to call a relevant witness was not permitted by the judge. There is nothing before me which could be said to substantiate these assertions of procedural error. I do not of course doubt that that is Mr Draper's perception of the course of the proceedings below.
6. But sadly the role of this court in reviewing a judgment on a contested suit is pretty limited. It would be a complete waste of Mr Draper's future energy and it would be to raise quite unrealistic hopes were I to accede to his application this morning. Sadly for him, the decree pronounced in the county court is a legitimate conclusion that flows from the judge's findings. There is nothing that I can do to prolong the litigation without breaching very clear principles that govern the determination of applications for permission. The application raises no point of principle and the application discloses no misdirection in law. It is not for this court to question findings that have been made by a judge of the county court who has heard the evidence of the parties and preferred the evidence of one to that of the other.
7. So for all those reasons this application for permission must be refused.

Order: Application refused