Gosain v Gosain

An adjournment is a matter for the judge’s broad discretion. Permission to appeal against its exercise will generally be refused unless there is an arguable error or excess of discretion.

That approach does not prevent an adjournment of the permission application where genuinely new documents may materially undermine a factual finding central to ancillary relief. The court may require the applicant to make a formal application to adduce fresh evidence and should proceed on notice to the opposing party.

Gosain v Gosain concerned an application for permission to appeal in divorce proceedings. A district judge had granted the former wife relatively substantial ancillary relief on 19 March 1999. The husband later sought to appeal, but His Honour Judge McDowall refused an adjournment sought for medical reasons and refused permission to appeal that discretionary decision on 8 December 2000.

Before the Court of Appeal, the husband relied on documents obtained in Delhi which appeared potentially to show that the wife still owned a flat which she had said she had sold. The issue was whether that material justified adjourning the permission application and permitting a fresh-evidence application.

Lord Justice Thorpe adjourned the application. No permission to appeal was granted at this hearing. The appeal was to follow only if permission were later granted.

1. Ordinary position. The decision whether to adjourn an appeal is entrusted to the judge’s broad discretion. Apart from the newly produced documents, there was nothing to suggest that His Honour Judge McDowall had exceeded that discretion. In that event, the application for permission would have been refused.
2. Potential significance of new evidence. The husband produced documents obtained in India which appeared to record the wife’s acquisition of the flat and a later payment relating to it. The district judge had preferred the wife’s evidence that she had sold the flat before relying on the husband’s assurance that he would support her. The new documents therefore had potential relevance to a factual finding material to the ancillary-relief decision.
3. Further procedure. The potential relevance of the documents justified a further oral hearing. The husband would have to apply formally to file fresh evidence. The application was adjourned on notice to the wife, with a one-hour estimate for the next hearing. The court also recorded that, had the documents been placed before Judge McDowall as part of the adjournment application, the outcome might have been different.

1. Wandsworth County Court: District Judge Plaskow granted the former wife relatively substantial ancillary relief on 19 March 1999.
2. Wandsworth County Court: His Honour Judge McDowall refused an adjournment sought for medical reasons, directed the appeal to proceed, and refused permission to appeal against that discretionary decision on 8 December 2000.
3. Court of Appeal (Civil Division): The application for permission to appeal was adjourned to be heard on notice, with the appeal to follow if permission were granted.