Di Matteo v Di Matteo

In matrimonial ancillary-relief appeals, the Court of Appeal may intervene only where the lower court misdirected itself in law, adopted an erroneous approach, or reached a decision that was plainly wrong. The statutory gateway for a further appeal from a circuit judge also requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the appeal. A judge’s broad discretion permits relevant assets, including personal-injury damages, to be taken into account and permits valuation decisions to be made on the available material where formal evidence would be disproportionate. Permission should be refused where no arguable error or qualifying gateway is shown.

The applicant sought permission to appeal out of time against a Slough County Court order dated 23 January 2002. The circuit judge had heard an appeal from a district judge’s ancillary-relief order and adjusted the division of the net proceeds of sale of the former matrimonial home.

The applicant challenged the treatment of bank withdrawals, mortgage contributions, Italian property, alleged occupation by squatters, Italian law, litigation conduct, personal-injury damages and the overall fairness of the result. Permission had previously been refused on the papers by Thorpe LJ. The central issues were whether there was any arguable error in the circuit judge’s exercise of discretion and whether the statutory test for a further appeal was satisfied.

1. Application dismissed. The Court of Appeal refused permission to appeal out of time. There was no order for costs.
2. The court could intervene only if the circuit judge had misdirected himself in law, adopted an erroneous approach, or reached a decision that was plainly wrong. The judge had considered the circumstances of the case and exercised the wide discretion available in matrimonial ancillary relief. No arguable error of law, erroneous principle or plainly wrong exercise of discretion was shown.
3. The absence of formal valuations for the Italian property did not invalidate the decision. In the circumstances, the court was entitled to proceed on the available material, and requiring formal valuations would have been disproportionate.
4. The English court was entitled to exercise jurisdiction in relation to the English divorce. There was no basis for deferring to the Italian court or applying Italian law to the ancillary-relief exercise.
5. The personal-injury damages were capable in law of being treated as a relevant matrimonial asset. The extent to which they should be taken into account remained a matter for the judge’s discretion.
6. Under Access to Justice Act 1999, section 55(1), and Civil Procedure Rules 1998, Part 52.13, a further appeal from the circuit judge could proceed only if it raised an important point of principle or practice, or there was another compelling reason for the Court of Appeal to hear it. Neither condition was met. The court followed the caution expressed in Piglowska v Piglowski concerning permission in this jurisdiction.
7. The lateness of the application was left wholly out of account. Permission was refused because the proposed appeal had no merit and did not satisfy the statutory gateway.

• Court of Appeal (Civil Division): Permission to appeal out of time was refused. Thorpe LJ had previously refused permission on the papers on 17 September 2002.
• Slough County Court: His Honour Judge Catlin gave judgment and order on 23 January 2002 on an appeal from the district judge.
• District judge: District Judge Henson made the original ancillary-relief order on 5 October 1999.