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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2003] EWCA Civ 1458

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Neutral Citation Number: [2003] EWCA Civ 1458


Royal Courts of Justice
London, WC2
18 September 2003

B e f o r e :




(Computer-Aided Transcript of the Stenograph Notes of
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Mr L appeared in person
The Respondent was not represented and did not attend



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  1. LORD JUSTICE THORPE: This is a renewed application for permission following a refusal on paper which I gave on 11 July 2003. The nature of the case in the Principal Registry was a straightforward ancillary relief between comparatively affluent and very well-to-do parties. The wife was represented by well known London solicitors and by counsel. The husband has appeared in person. The trial took place before District Judge Million in the Spring. He made orders which dissatisfied Mr L. Accordingly, he exercised his right of appeal and his appeal came before the President who dismissed it for reasons given in the judgment of 7 May 2003.
  2. It was that judgment that Mr L sought permission to appeal. In refusing it, I inevitably drew attention to Section 55 of the Access to Justice Act 1999 which was enacted by Parliament to ensure that in any instance where there has been an appeal within the court of trial this court should not be burdened with unnecessary duplication of the appellate function. Mr L has understood the point. He has provided a very careful skeleton argument this morning and he seeks to surmount the Section 55 barrier by a submission that Section 25 of the Matrimonial Causes Act 1973 is incompatible with rights to which he is entitled under the Human Rights Act 1998, introducing within our domestic law Articles 3, 6 and 8 of the European Convention on Human Rights. It is a submission that reflects Mr L's lively intelligence and considerable understanding of this field of law. But in the end it is not a point that is arguable at an appellate level.
  3. The whole function of the 1973 Act is to provide, for those who fall within the jurisdiction of this Court, a scheme for the equitable re-distribution of capital and income following divorce. Of course, other States within Europe operate different systems for re-distribution. Some of them would be more advantageous to applicant wives; some of them would be more advantageous to respondent husbands. The essential point is that Europe has to accord a margin of appreciation to Member States as to the manner in which they provide rights and responsibilities to their citizens following the dissolution of the marriage. I would, with reasonable confidence, predict that within my lifetime the Europe Union will endeavour to harmonise these systems throughout the Member States of the Union. That is not yet at the head of the Commission's programme for the evolution of a uniform code of family law throughout the European Member States. It lies ahead and, as things stand, it is simply not arguable, in my judgment, that the provisions of the Matrimonial Causes Act 1973 offend, or are incompatible with, the Articles of the Convention.
  4. Mr L is very concerned that the approach of the judges in the Family Division has been to elevate his responsibilities in respect of the two children of the marriage, Santiago who is 20 and Clara who is 17, above his responsibilities for a little girl of approximately 8 months named Bella, who is a Spanish national and who was born to Mr L outside the marriage. That point was considered by the President and she, in my opinion, rightly pointed out that Bella falls for consideration only under Section 25 (2) (b), and Mr L's legal and moral responsibilities in relation to her cannot be set on any independent foot.
  5. Mr L has said that the district judge entered into unreasonable or unfair bases for division of capital surplus over needs. That is simply nowhere near an argument that would overcome the Section 55 barrier.
  6. Mr L has in a coda said that the education fund set up to secure the future education of Santiago and Clara has not been sufficiently rigorously controlled, giving to his former wife a liberty to spend the money in other ways. In relation to that I would only say that despite the contested proceedings and whatever feelings they have engendered these two remain parents to two children - or young adults - of great promise, and I would hope that all issues in relation to those two, and particularly in relation to their education, will be dealt with in a civilised way between the parents without undue dispute or distrust.
  7. Finally, Mr L makes complaint about the application of the Calderbank principles and Rule 2.68 and 9 of the Family Proceedings Rules in the allocation of costs at the end of the day. I have considerable sympathy for that submission. He is, in a sense, too late to take advantage of radical re-thinking in the area of ancillary relief costs, which has only emerged in the course of the last two months or so and which is likely to result in the amendment of those Rules. I do not see that that possibly can be said to be other than a transitional inevitability, and nothing that Mr L has said today has shaken my conviction that this application fails to surmount the very considerable hurdle which Section 55 is intended to place in the path of those seeking a second tier appeal.
  8. Accordingly, I confirm the dismissal of the application for permission.
  9. Order: Application dismissed

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