Smith v Smith

In applications for permission to appeal out of time, substantial latitude should be allowed to circuit judges. Administrative errors may be relevant, but they do not necessarily justify an extension where the delay is substantial and the explanation is insufficient. The court should also examine the underlying judgment to assess whether refusing an extension might cause injustice. A proposed appeal with little prospect of success will not ordinarily justify extending time. In financial proceedings, an award made under the criteria in Matrimonial Causes Act 1973, section 25(2), should not be disturbed merely because another judge might have reached a different figure, provided it falls within the broad ambit of discretion.

Following their divorce, the parties had assets of approximately £33,000. A district judge ordered the husband to pay the wife a lump sum of £13,000 after preferring his evidence on disputed factual issues and departing from equal division.

The husband later sought permission to appeal out of time. Although the court had made administrative errors, including losing his application, Judge Andrew refused permission because the application was approximately six months late. The husband applied to the Court of Appeal for permission to appeal that refusal. The central issues were whether the delay should be excused and whether refusing an extension could produce injustice.

Application refused. Lord Justice Thorpe upheld the discretionary refusal of permission to appeal out of time.

1. The application was nearly six months late. The husband had been told in February to obtain advice about his appeal rights, but took no substantive step until the summer. The court’s administrative errors and partial apology were established, but Judge Andrew was entitled to conclude that the explanation for the delay was insufficient. Circuit judges should be given a great measure of latitude when determining applications for extensions of time.
2. When deciding whether an extension would prevent injustice, the court should look back to the principal judgment. Judge Andrew had undertaken that assessment. The district judge had given a full and careful judgment and had exercised the broad discretion conferred by the criteria in Matrimonial Causes Act 1973, section 25(2). The award of £13,000 fell within the broad ambit of that discretion. The possibility that another judge might have awarded more or less did not provide a sufficient basis for an appeal.
3. Allowing the application would not assist the husband and could expose him to further costs. Permission to appeal was therefore refused, with no order for costs.

1. Court of Appeal (Civil Division): On 17 July 2001, Lord Justice Thorpe refused the husband’s application for permission to appeal out of time.
2. Canterbury County Court: On 26 September 2000, Judge Andrew refused permission because the proposed appeal was too late.
3. Canterbury County Court: On 27 January 2000, District Judge Green determined the parties’ financial division and ordered the husband to pay the wife £13,000.