Aydin v Aydin

On a second appeal, permission requires an important point of principle or practice, or another compelling reason. The Court of Appeal is slow to interfere with an ancillary-relief allocation because the trial judge is best placed to assess the assets and circumstances. Fairness is assessed by reference to the parties’ needs and contributions, not merely the money each paid; contributions may be non-financial. Where new evidence alleges that valuable assets were removed before the financial order and could materially affect the result, the court may adjourn for sworn evidence and a hearing at which both parties can respond, without deciding the merits.

This was an application for permission to appeal out of time against the dismissal by His Honour Judge Taylor of an application for permission to appeal out of time. The underlying proceedings concerned ancillary relief following the parties’ divorce. District Judge Bullock had made a financial order on 2 March 1998 while the applicant was in prison and unrepresented. The applicant alleged that his former wife had removed valuable property and documents before the hearing, and argued that it was unfair for the proceedings to continue in his absence. The central issue was whether those matters justified further investigation before the application for permission was determined.

The application for permission to appeal out of time was adjourned for one further hearing. The court did not grant permission or determine the merits of the proposed appeal.

1. Second appeal. The Court of Appeal explained that it must be satisfied that there is an important point of principle or practice, or some other compelling reason, before a second appeal can proceed. It would be very reluctant to interfere with the order made by the judge who assessed the parties’ assets and circumstances, because that judge was best placed to decide how the assets should be divided.
2. Ancillary relief. The principal consideration is a fair division of the assets having regard to the parties’ needs and contributions. The amount paid by each party is not the main criterion. Contributions may include contributions other than money. The apparent merits of the applicant’s complaints about the financial division therefore did not, without more, provide an adequate basis for intervention.
3. Absence from the earlier hearing. The court did not accept that the applicant was automatically entitled to have the proceedings postponed or to have public funds pay for his attendance. The Human Rights Act was not in force when the relevant events occurred. More generally, there may be circumstances in which fairness to the other party requires proceedings to continue despite one party’s difficulties or absence.
4. Alleged removal of assets. The allegation that valuable property and documents had been removed on 8 May 1997 could, if proved, materially affect the financial order. The evidence then produced, consisting principally of letters, required fuller investigation and should be presented in sworn statements with supporting documentation. Notice should be given to the respondent so that she could attend and explain matters. The allegation concerning the car was treated as less substantial.
5. The court directed that a transcript of District Judge Lancaster’s remarks on 17 November 1997 be obtained, that the matter be relisted with notice to the respondent, and that the transcript of the present judgment be prepared and served on both parties at public expense.

• Court of Appeal (Civil Division): adjourned the application for permission to appeal out of time for further investigation and an inter partes hearing.
• Teeside County Court: His Honour Judge Taylor dismissed the applicant’s application for permission to appeal out of time on 11 January 1999.
• Ancillary relief proceedings: District Judge Bullock made the underlying financial order on 2 March 1998.