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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2008] EWCA Civ 959

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Neutral Citation Number: [2008] EWCA Civ 959
Case No: B4/2008/1077


Royal Courts of Justice
Strand, London, WC2A 2LL
29th July 2008

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Crown Copyright ©

    Lord Justice Wall:

  1. This is an application by Mr Ian Gloucester-Trotman for permission to appeal against an order made by HHJ Rylance, sitting in the Epsom County Court as though it were the Reigate County Court, in fact at Redhill, on 29 April 2008.
  2. The order made by the judge was to dismiss Mr Trotman's appeal against a previous order made by a district judge. Two consequences followed from that. Although the order in question was a committal order for a suspended committal, the rule is clear that if a circuit judge on appeal upholds the committal order made by a district judge, then any appeal from a circuit judge is a second appeal for which permission is required; and of course, as Mr Trotman is well aware from his very full researches, this court will only give permission in relation to a second appeal if it considers that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it.
  3. I have to say, with great respect to Mr Trotman and the researches he has undertaken, that, speaking for myself, I do not think this application crosses the threshold and for that reason falls to be dismissed in any event. However, in view of the very consistent and comprehensive amount of work that Mr Trotman has obviously done on the matter, I think I ought to look at the merits, because I would not want him to think that I have dismissed this application purely on a technical point.
  4. This court, as many litigants in person I am afraid do not appreciate, has very limited functions on an application for permission. I have essentially to look at what the judge did and ask myself whether the judge made any material error of law, and if he did not, that is effectively the end of the matter, unless his conclusion in any discretionary sense is so outside the ambit of reasonable disagreement that he must have been plainly wrong to make the order he did. In my judgment the judge did not make any error of law and I will seek to explain why I take that view.
  5. The case concerns a very bitter dispute about a property at 22 Bickersteth Road in Tooting in Southwest London, which both Mr Trotman and Suzanne Gloucester-Trotman, as she now calls herself, claim to own. There had been proceedings between the couple under the Family Law Act of 1996, and the district judges who dealt with the matter were plainly of the view that Mr Trotman and Suzanne Gloucester-Trotman were connected persons within the Act, and therefore the court had jurisdiction to make a series of orders, as indeed it did. The case is very complex, and a number of orders have been made prior to the one which is relevant to today.
  6. In any event the District Judge found that Mr Trotman and Suzanne Gloucester-Trotman were connected persons; that was a finding of fact in my view properly open to the District Judge. It was accepted by the judge on appeal and in my judgment is not capable of being challenged in this court.
  7. Mr Trotman gave undertakings in relation to 22 Bickersteth Road to the District Judge in July 2007, and on that occasion, it is important to note, he was represented by counsel. There were clearly negotiations between counsel which resulted in the undertaking being proffered and, as the judge says, after long discussions there was an agreed order and cross-undertakings were given. At that point no issue had been raised about the court's jurisdiction to make the agreed order and, I have already indicated, in my view the court not only had jurisdiction but was entitled on the written evidence to proceed as it did, as indeed the judge found. And as Mr Trotman is fully well aware, undertakings are specifically provided for in section 46 of the 1996 Act, and subsection (4) of section 46 says in terms:
  8. "An undertaking given to the court under subsection (1) is enforceable as if it were an order of the court"
  9. Mr Trotman makes the point this morning that the full implications of the undertaking were not explained to him. The order appears to record, at least the judge records, that the court had explained the meaning of the undertaking and consequences of failing to keep the promises to Mr Trotman, but I assume for the purposes of this judgment that an explanation was not given. In relation to that, three points, I think, need to be made, as indeed the judge found: firstly, that Mr Trotman was legally represented on that occasion; secondly, he proffered the undertaking; and thirdly, as the judge found and as the District Judge found, he was fully aware of the meaning and terms of the undertaking that he was giving.
  10. There is abundant authority in this court that when one comes to look at questions of committal, one is looking to the overall merits of whether or not a committal order was properly made, and any form of technical point is to be taken in the context of the overall justice of the case. What happened here was one of the undertakings given by Mr Trotman was in these terms:
  11. "Not to interfere in any way with the marketing as a rental property of the ground floor flat, 22 Bickersteth Road, Tooting, SW17, or to instruct, encourage or suggest that any other person should do so."
  12. Apparently the order made by the District Judge in July contained recitals which included Suzanne Gloucester-Trotman's agreement that she would attempt to vacate the property at 22 Bickersteth Road as soon as practicable, and there was an agreement recorded that she would receive the benefit of any rental income she received from the ground floor flat, and upon that basis both parties gave their undertakings.
  13. What the District Judge found, and the judge upheld him in finding, was that eight days later, on 3 August, Mr Trotman granted or purported a grant of tenancy of the downstairs flat for a term of three years to a woman called Sonia Strahle, whom the District Judge found and the judge upheld him, was his girlfriend. The District Judge, the judge records:
  14. "Rightly categorised this as a 'very unusual tenancy at a very low rent'. That act, of course, now made it impossible for the Respondent [that is, Suzanne Gloucester-Trotman] to let the property and, thus, inevitably brought to an end her marketing of it as a rental property."
  15. The judge goes on to record that that matter and others became the subject of the committal proceedings; and the District Judge was clear in finding, as he did, that Mr Trotman knew exactly what he was doing in relation to the undertaking when he purported to let the property to his girlfriend; and the District Judge found, applying the criminal standard of proof, that the undertaking had indeed been breached. These were matters of fact for the District Judge; and the District Judge was in no doubt, having seen and heard Mr Trotman over a period of days that Mr Trotman knew exactly what he was doing (and why he was doing it). The District Judge was thus entitled to find that Mr. Trotman knew he was in breach of the undertaking,, and in my judgment it follows that the District Judge was perfectly entitled to find, on the criminal standard -- "beyond reasonable doubt", that Mr Trotman had indeed breached his undertaking.
  16. It is quite clear to me, having read the District Judge's judgment as I have now done several times, that the District Judge applied the criminal standard of proof, applied it appropriately to the facts of the case and was therefore entitled to reach the conclusion that he did. The penalty he imposed, which was a suspended term of imprisonment for 28 days, was in no sense disproportionate. Thus in my judgment this is a straightforward committal application based on a breach of an undertaking and raises no important point of principle or practice; and in those circumstances the judge's dismissal of the appeal from the District Judge was in my view plainly correct. The District Judge was entitled to make findings of fact as he did. He applied the correct standard of proof, and the judge, in my view, was right to uphold him. These are issues of fact and the application of the appropriate standard, which are matters for the courts below, and this court can only interfere if there has been some error of law.
  17. Mr Trotman does seek to argue today -- he did not argue before, but he argues today -- that it was wrong of the District Judge to apply a reverse burden of proof, in other words to put the burden of proof in relation to the proceedings under part IV, and the power to grant an injunction or relief under part IV on Mr Trotman, when it was Suzanne Gloucester-Trotman who was applying for relief. The judge deals with that with some care in the judgment and comes to the conclusion that both parties knew precisely what the proceedings were about and that the court can only have jurisdiction in any event to deal with it. In any event, as I have already indicated when it comes to matters dealing with the Family Law Act, it is the civil standard of proof which applies. It is the criminal standard which applies when an application for committal is made. The two should not be confused, and certainly the criminal standard does not apply throughout.
  18. It is plain to me that Mr Trotman has done a great deal of research into the Human Rights Act and the European Convention on Human Rights, and he raises in the documents he has put before me a whole host of points under the Human Rights Act and under the Convention. I have to say to him that in my judgment these are irrelevant. The European Convention on Human Rights does not replace English law; it supplements it. Thus what is essential in the case at present is that the hearing has to be Article 6-compliant, ie fair; and here the two hearings which are material, namely the two hearings before the District Judges at which the undertakings were given and at which a committal order was made, are both patently fair, because Mr Trotman was not only represented but, as I understand it, the committal proceedings lasted several days, and he was obviously given the opportunity to say everything he wanted to the District Judge.
  19. In relation to appeals there is, in my experience and my judgment and my understanding of the law, no obligation on the Legal Services Commission to fund appeals, particularly if they take the view that they are not meritorious, and there is, accordingly, in my judgment no breach of Article 6 in that Mr Trotman was in person before HHJ Rylance and is in person before me. As I say, in my judgment neither of those constitutes a breach of Article 6 and in those circumstances it seems to me -- as strongly as Mr Trotman feels about it and carefully as he has researched the matter -- this was a straightforward committal application on the breach of an undertaking, in which the judge and the District Judge both came to the same view, the District Judge having heard the facts and the judge on the law, that there was no merit in the application made by Mr Trotman and no merit in the appeal.
  20. In those circumstances, as I say, on the merits it seems to me, despite the careful research that Mr Trotman has made, that this application fails. But in any event, in my judgment it does not cross the threshold.
  21. So the application will be refused.
  22. Order: Application refused

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