Legg v Legg

An application to extend time for an appeal or permission application requires consideration of both the explanation for delay and the apparent merits. For a proposed second appeal, the threshold is higher: there must be an important point of principle or practice, or some compelling reason. An appeal challenging credibility and factual findings has little prospect without genuinely new and admissible material. Repeated allegations of perjury, later events, or unadmitted witness material may not satisfy that requirement. Substantial unexplained delays, combined with the absence of merit or a qualifying point, justify refusal.

The applicant sought an extension of time and permission to appeal from an order of His Honour Judge Smith in the Blackburn County Court on 5 September 2001. That order dismissed his application for permission to appeal out of time against District Judge Law’s financial remedy order of 19 July 2000.

The earlier order required transfers of interests in two properties and payment of £98,000 following a contested matrimonial hearing. The applicant alleged that his former wife had committed perjury and relied on later cohabitation evidence, a police statement and business accounts. The central issues were whether the delays could be excused and whether the proposed second appeal had sufficient merit.

Application refused. Lord Justice Mance refused the applications for an extension of time and for permission to appeal.

1. The explanation for the delay was inadequate. The applicant had waited over a year before seeking permission to appeal to the Circuit Judge and a further period of about nine months before approaching the Court of Appeal. The delayed receipt of the drawn order did not explain the subsequent delay.
2. It was appropriate to examine the apparent merits, particularly because the applicant relied on alleged fresh evidence. An appellate court should respect the first-instance judge’s findings on credibility and fact. A repeated assertion that a witness had lied, without material capable of undermining those findings, did not provide a sufficient prospect of success.
3. The material relied on did not assist the applicant. Evidence that the former wife later lived with another person did not establish that her earlier affidavits, which addressed earlier periods, were false. A police witness statement did not establish the alleged relationship and had not been admitted at the original hearing because its maker was not called.
4. The District Judge had considered the parties’ conduct, property requirements and rehousing needs under the Matrimonial Causes Act 1973, sections 23 to 25. The alleged adultery would not have defeated the financial claims even if proved. The property and business-account issues had also been examined in detail at the original hearing.
5. The proposed appeal was, in substance, a second appeal. The higher threshold of an important point of principle or practice, or some compelling reason, was not met. There was no sufficient basis for extending time either to apply to this court or, if permission were granted, to challenge the Circuit Judge’s decision.

Order: application refused.

• Court of Appeal (Civil Division): On 14 October 2002, Lord Justice Mance refused the applications for an extension of time and permission to appeal.
• Blackburn County Court: On 5 September 2001, His Honour Judge Smith dismissed the application for permission to appeal out of time against the District Judge’s order.
• Chorley County Court: On 19 July 2000, District Judge Law made financial and property-transfer orders after a contested matrimonial hearing.