Fitzsimons v Fitzsimons

An appellate court will not review a trial judge’s discretionary refusal of permission to appeal out of time where no good reason for delay or error is shown. Findings of fact and assessments of witness credibility are matters for the trial judge. The Court of Appeal has no reviewing function unless there is an obvious error. A hopeless application may be refused on its merits even where it is also manifestly out of time.

Following a contested ancillary relief hearing, the Bolton County Court ordered the sale of property in Bolton and the transfer of property in Spain to the petitioner. The respondent transferred the Spanish property to his son and was found in contempt. Later applications concerning transfer of the proceedings and sale of the Bolton property were rejected by district judges.

The respondent sought permission to appeal from an order made by Her Honour Judge Ruaux on 23 October 2000. One proposed appeal required permission out of time; the other challenged findings and orders concerning the sale. The central issues were whether the refusal of permission out of time could be reviewed and whether there was any proper basis to interfere with the lower court’s factual and credibility findings.

1. Outcome. Per Lord Justice Thorpe, the applications were dismissed and permission to appeal was refused.
2. Application out of time. The respondent gave no good reason for failing to apply within the required period. The refusal by a trial-level judge to grant permission to appeal out of time was an exercise of discretion which was not open to review by the Court of Appeal on the material before it.
3. Factual findings and credibility. Findings of fact and assessments of witness reliability and credibility are functions of the trial judge. Once those tasks have been completed and a consequential conclusion on the merits has been reached, the Court of Appeal has no reviewing function in the absence of an obvious error. The lower appellate judge had considered the evidence in detail and was entitled to accept the district judge’s conclusions.
4. Merits and future proceedings. The proposed appeal was transparently frail and hopeless on its merits. The Court of Appeal therefore refused permission without deciding the matter on delay alone. Any future proceedings concerning contempt or compliance with the Spanish property order remained matters for the trial court.

• Court of Appeal (Civil Division)—dismissed the applications and refused permission to appeal from the order of Her Honour Judge Ruaux made on 23 October 2000.
• Bolton County Court—following the ancillary relief proceedings and later applications, the respondent sought permission to appeal against orders concerning transfer of proceedings and sale of the Bolton property.