Lambie v Lambie

On an application for permission to appeal against a decree nisi, permission requires a real prospect of success. An appellate court will generally not interfere with findings based on the trial judge’s assessment of witnesses whom the judge saw and heard, absent a proper basis for doing so. A challenge to an adjournment decision may fail where the relevant ruling or transcript is unavailable. In divorce proceedings, legal breakdown is established by proof of one statutory fact; the parties’ subjective views about whether the marriage has broken down are not necessarily determinative.

The wife applied for permission to appeal against a recorder’s grant of a decree nisi of divorce. The marriage had been celebrated in 1991, and the date of breakdown was disputed. She challenged the refusal of an adjournment, the recorder’s findings that her evidence was less reliable than the husband’s, and the treatment of her refusal to accept that the marriage had broken down.

She also sought to rely on evidence from witnesses who had not been formally put forward as further evidence. The central issues were whether the trial had been unfair, whether the factual findings could be revisited on appeal, and whether the recorder had applied the statutory test correctly.

Application dismissed; no order for costs. Ward LJ refused permission to appeal.

1. The challenge to the refusal of an adjournment could not properly be assessed because the wife had no transcript of the ruling. Without the reasons, the Court of Appeal could not determine whether the recorder had wrongly exercised his discretion. The papers also did not disclose a clear challenge to the adjournment decision.
2. The recorder had seen and heard the parties and other witnesses. He had found the husband and his witnesses honest and reliable, while finding the wife’s evidence significantly less reliable. The Court of Appeal could not properly interfere with those credibility-based findings merely because the wife could identify individual findings which she disputed. The findings concerning abusive conduct and damage to the husband’s car were sufficient to support the conclusion that he could not reasonably be expected to live with her.
3. Although the wife had not made a formal application to adduce further evidence, Ward LJ considered the statements without holding that procedural omission against her. The evidence principally concerned the parties’ hospitality and did not go sufficiently to the central findings to justify disturbing the recorder’s overall conclusion.
4. The recorder may have placed undue emphasis on the wife’s refusal to acknowledge that the marriage had broken down. Under the Matrimonial Causes Act, breakdown is established when one statutory fact is proved, including behaviour such that the petitioner cannot reasonably be expected to live with the respondent. The parties’ subjective views may therefore be irrelevant. That point could not assist the wife because the adverse factual findings remained decisive.
5. There was no real prospect of success on any ground. Permission was therefore refused and the application dismissed.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1414, Ward LJ dismissed the application for permission to appeal and made no order for costs.
• Family Division: A recorder granted a decree nisi of divorce on 2 August 2002.