Jacobs v Waner

An application for permission to appeal made grossly out of time may be refused where the explanation for delay is implausible or unsatisfactory. The court may determine the application on the documents and the applicant’s written argument where the applicant does not attend. A lower court may, in the exercise of its discretion, make a costs order and find that a document relied upon in proceedings is false where the evidence justifies those conclusions.

Following acrimonious divorce proceedings principally conducted in Canada, Mr Justice Johnson made orders in the Family Division on 13 February 2001. He recognised the Canadian divorce in this jurisdiction, terminated the domestic proceedings, found that a letter relied upon by Tracy Waner was false, and ordered costs against her.

Tracy Waner applied for permission to appeal and an extension of time. The application was made on 9 July 2001, was grossly out of time, and was heard in the absence of both parties. The central issues were whether the delay should be excused and whether there was any merit in challenging the findings concerning the document and costs.

Lord Justice Thorpe dismissed the application. The decision was made by a single judge on the documents and the applicant’s skeleton argument.

1. Delay. The application was grossly out of time. The explanations offered for the delay were neither plausible nor satisfactory. That provided a sufficient basis for refusing permission and the requested extension of time.
2. Finding concerning the document. The order below was unusual because it declared that the letter relied upon by the applicant was a false document. On a fair reading of the material, Mr Justice Johnson had been entitled to reach that conclusion. The Court of Appeal identified no arguable basis for interfering with it.
3. Costs. Although the respondent had not attended the hearing below, the judge had found that she had notice of it. In the exercise of his general discretion, he had been entitled to order her to pay the costs of the domestic proceedings.
4. Disposition. The application disclosed no merit. Permission to appeal was refused and the application was dismissed in the applicant’s absence.

• Court of Appeal (Civil Division): On 5 October 2001, the application for permission to appeal and an extension of time was dismissed.
• Family Division: Mr Justice Johnson made the appealed order and judgment on 13 February 2001, recognising the Canadian divorce, terminating the domestic proceedings, declaring the relied-upon letter false, and ordering costs against the applicant.