Kim v Kim

In a second-tier appeal, the restriction in the Access to Justice Act 1999 does not justify shutting out an applicant where the lower courts may have made a fundamental error. A pleading must be construed as a whole. An apparent admission cannot be read in isolation if the surrounding text shows that the pleader has substituted a different account for the opposing party’s allegations. A respondent to a divorce petition need not file a cross-petition. A bare answer may require a trial. Where these matters are engaged, permission should proceed to an oral hearing rather than being refused summarily.

The husband applied for permission to appeal against the judgment and order of His Honour Judge O'Brien in the Cambridge County Court. The proceedings arose from the wife’s divorce petition alleging unreasonable behaviour. The husband filed an answer late and did not attend when the decree was pronounced.

The district judge treated the answer as admitting the petition’s allegations. The circuit judge upheld that approach. The central questions were whether the answer put the allegations in issue and whether the statutory restriction on second-tier appeals prevented further consideration of an apparent fundamental error.

The application was adjourned for oral hearing on notice, with an appeal to follow if permission was granted. Lord Justice Thorpe did not finally determine the merits of the divorce proceedings.

1. No cross-petition required. A respondent to a divorce petition was not required to file a cross-petition. The respondent could file a bare answer and require a trial on that denial.
2. Answer construed as a whole. The opening statement that the respondent did not dispute the facts alleged by his wife could not be read in isolation. The preceding paragraph appeared to summarise the wife’s allegations but in substance replaced them with the respondent’s own account of events. Read together, the answer put the petition’s averments in issue. It was therefore a perverse construction to treat the answer as an admission which entitled, or compelled, the court to accept the wife’s evidence.
3. Second-tier appeal. Although the application was subject to the restriction in section 55 of the Access to Justice Act 1999, it would be unprincipled to rely on that restriction where a fundamental error was revealed, or apparently revealed, in the decisions below.
4. Warnings. The judge warned that setting aside the decree nisi would lead only to a defended trial, with a likely order for costs against the husband if the wife succeeded. Those observations did not determine the appeal.

• Court of Appeal (Civil Division): On 13 December 2001, the application for permission to appeal was adjourned for oral hearing on notice, with an appeal to follow if permission was granted.
• Cambridge County Court: The district judge pronounced the decree in the husband’s absence on 1 October 2001. The circuit judge reviewed and upheld that decision.