Anya v Anya

On an application for permission to appeal, the Court of Appeal will rarely interfere with findings of fact based on the trial judge’s assessment of witnesses who gave evidence before that judge. A judge does not reverse the burden of proof merely by preferring the petitioner’s evidence and rejecting the respondent’s denial, provided the evidence has been properly assessed. Complaints about legal representation, the calling of witnesses or the weight given to police reports ordinarily concern the trial process and do not establish an appealable error without a serious miscarriage of justice. Costs in a defended divorce are within the trial judge’s discretion. Costs may ordinarily follow the event, and the usual family-law approach to costs is not generally applicable to the divorce itself.

The wife petitioned for divorce on the ground that the marriage had broken down irretrievably because of the husband’s unreasonable behaviour, including alleged threats, violence and controlling conduct. The Oxford County Court judge accepted the wife’s evidence, rejected the husband’s account, granted a decree nisi and ordered the husband to pay the costs of the defended divorce.

The husband applied to the Court of Appeal for permission to appeal, alleging bias, a failure to observe the burden of proof, inadequate legal representation, the failure to call witnesses and improper reliance on police reports. He also challenged the costs order. The central issues were whether the trial judge’s findings and exercise of discretion disclosed any arguable error.

Decision

1. Permission and extension of time. Lord Justice Ward refused permission to appeal against the decree nisi and the costs order. The applications for permission to appeal and for an extension of time were refused.
2. Bias and burden of proof. The trial judge’s comments about the rarity of defended divorces and his enquiries about the absence of an answer did not demonstrate bias. The judgment, read as a whole, showed an even-handed assessment of the parties’ evidence. The burden of proof remained on the petitioner. The judge itemised the incidents, considered both accounts and explained why he accepted the wife’s evidence and rejected the husband’s explanations. Rejecting a bare denial did not amount to reversing the burden of proof.
3. Fact-finding and conduct of the trial. The Court of Appeal could not properly interfere with findings of fact made by a judge who had heard and observed the witnesses and was therefore in a better position to assess credibility. Complaints about inadequate cross-examination or re-examination, the failure to call witnesses and the treatment of police reports did not disclose an appealable error or miscarriage of justice.
4. Costs. The costs order was within the trial judge’s discretion. A defended divorce could properly be treated as litigation in which costs ordinarily followed the event. The usual family-law approach that costs do not follow the event was generally confined to issues concerning children, and did not necessarily apply to divorce or financial matters. Having considered the factors under CPR 44, the judge was not plainly wrong in ordering the husband to pay the costs.

1. Court of Appeal (Civil Division) — In [2001] EWCA Civ 2012, permission to appeal against the decree nisi and costs order was refused, as was an extension of time.
2. Oxford County Court — His Honour Judge Corrie granted a decree nisi on 25 September 2001 and ordered the husband to pay the costs of the defended divorce.