Mulder v Mason

An appellate court should not interfere with a discretionary case-management or procedural decision unless the lower court applied an improper principle, took account of an irrelevant matter, or failed to take account of a relevant matter. A conditional order may be appropriate where a claim is merely arguable but shadowy, particularly where the condition fairly reflects the claim’s apparent merits. A transfer to a court and judge familiar with connected litigation is also permissible. A possible allegation of judicial disqualification must be raised as such and supported by evidence; a general wish for litigation to end does not establish bias.

The applicant, a former husband, sought leave to appeal and, if leave were granted, a stay of execution. His Queen’s Bench claim against his former wife concerned rental income and alleged deductions relating to their former matrimonial home. A deputy master had struck out the claim, but His Honour Judge Wilcox allowed the matter to proceed in part, subject to payment of £750 into court, and transferred it to Guildford County Court for hearing before District Judge Enzer. Judge Wilcox refused leave to appeal. The applicant renewed that application in the Court of Appeal, challenging the condition, the costs approach, and the transfer.

The central issue was whether there was any realistic prospect that the Full Court would interfere with Judge Wilcox’s exercise of discretion.

Application dismissed. Lord Justice Judge held that the applicant had no realistic prospect of success before the Full Court.

1. The Court of Appeal would not set aside the exercise of a lower court’s discretion unless it were clear that the judge had applied an improper principle, taken into account something that should not have been considered, or failed to take account of something that should have been considered.

2. Judge Wilcox had examined the facts carefully and balanced the evidence. His conclusion that only part of the claim was properly arguable, and that the claim was otherwise shadowy, justified making permission to proceed conditional on payment of £750 into court. The condition was a fair and appropriate means of dealing with the apparent weakness of the claim.

3. The proceedings arose from the continuing dispute concerning the former matrimonial home. The transfer to Guildford County Court, and allocation to District Judge Enzer, were sensible because that court and judge were familiar with the connected litigation.

4. The applicant had not established that District Judge Enzer was unwilling or unable to try the case fairly. A general wish that the litigation should end did not amount to evidence of bias or disqualification. If a properly founded allegation of disqualification had been made, that issue would have required separate reconsideration. This was not an issue presented to the court.

5. The costs approach was within the judge’s discretion and was not open to criticism. The applicant had not, in any proper sense, won the appeal below.

The application for leave was refused.

• Court of Appeal (Civil Division): leave to appeal was refused. The Court upheld the discretionary order made by His Honour Judge Wilcox, including the £750 payment condition and transfer to Guildford County Court for hearing before District Judge Enzer.
• Queen’s Bench Division / High Court Judge Wilcox: on 21 May 1996, the claim was permitted to proceed in effect subject to payment into court and was transferred to Guildford County Court; leave to appeal was refused.
• Deputy Master Chism: on 29 April 1996, the claim was struck out as disclosing no reasonable cause of action and as frivolous and vexatious.