Holmes v Wheeler-Johns

Permission for a second appeal requires an important point of principle or practice, or another compelling reason. It cannot be granted merely because another court might reach a different conclusion, particularly where the first-instance judge heard the evidence and made findings of fact.

An appeal is a review rather than a complete rehearing. An appellate court cannot revisit the evidence or decide the case afresh. A spouse’s death will not necessarily constitute a Barder event where the circumstances were foreseeable when the financial order was made. The court’s powers under the Matrimonial Causes Act 1973 and the Inheritance (Provision for the Family and Dependants) Act 1975 cannot be used to protect property transferred or settled for a bankrupt spouse from the claims of creditors.

The applicant sought permission for a second appeal from the dismissal of his appeal against a financial order made in ancillary relief proceedings. The order required him to vacate Osborne House, which was owned by his wife, and otherwise provided for a clean break.

The wife died after the first-instance order and before the appeal was determined. The applicant argued that her death was a Barder event, that the first-instance judge had failed to carry out the statutory balancing exercise, and that an adjournment should have been granted so that he could obtain legal representation. He also sought to preserve an interest in the property despite his bankruptcy.

The central questions were whether the proposed appeal raised an important point of principle or practice or another compelling reason, whether the death justified appellate intervention, and whether the court could achieve the proposed protection from creditors.

1. Application refused. The applicant did not satisfy the statutory threshold for a second appeal under section 55(1) of the Access to Justice Act 1999. A different possible conclusion on the facts was insufficient.
2. The District Judge had heard evidence from both parties and made firm findings, including findings about the applicant’s contributions and the use of the wife’s assets. It would be especially difficult and unjust for an appellate court to revisit those findings after the wife’s death.
3. An appeal is a review of the decision below, not a complete rehearing. The appellate judge cannot rehear the evidence or decide the financial application afresh. The court adopted the approach described in Cordle v Cordle [2002] 1 FLR 207, which disapproved the earlier practice reflected in Marsh v Marsh [1993] 1 WLR 744.
4. The wife’s death was not a Barder event. Unlike the unforeseen death considered in Barder v Barder [1988] AC 20, and the related case of Smith v Smith [1992] Fam 69, the wife’s advanced age and circumstances meant that her short remaining lifespan could reasonably have been contemplated when the order was made.
5. The order was an exercise of discretion based on the particular facts and did not raise an important point of principle or practice. In addition, neither the Matrimonial Causes Act 1973 nor the Inheritance (Provision for the Family and Dependants) Act 1975 provided a realistic means of transferring or settling property for the applicant while avoiding the claims of the Official Receiver.
6. The application for permission and the application for a stay were refused. The applicant was to receive a transcript at public expense. The court expressed an expectation that the executors would allow a reasonable period before seeking to remove him from Osborne House.

• Court of Appeal (Civil Division): Permission for a second appeal was refused. The court also refused a stay of execution.
• Torquay and Newton Abbot County Court: His Honour Judge Tyzack QC dismissed the applicant’s appeal from the District Judge’s ancillary relief order.
• District Judge Walker: Ordered the applicant to vacate Osborne House and made a clean break order.