Waiwaiku v Waiwaiku

Permission for a second appeal requires an important point of principle or practice, or another cogent reason. The threshold is high. An appellate court should not order a retrial merely because a party remains dissatisfied with adverse findings of fact. Allegations of concealed assets or under-declared income require hard supporting evidence. In ancillary relief proceedings, a lump sum will ordinarily be paid from available capital or raised against an asset, rather than imposed from income which does not justify it. A later substantial increase in income may instead support an application to vary periodical payments, provided the application is supported by evidence.

Following the breakdown of a long marriage, a Deputy District Judge ordered the husband to transfer his interest in the matrimonial home and insurance policies, share his pension, pay a £30,000 lump sum and make periodical payments of £1,350 per month.

The husband appealed. The Southend County Court revoked the lump sum order but upheld the other relevant findings and the periodical payments order. The wife sought permission for a further appeal, alleging that the husband had concealed capital and under-declared his income. The central issues were whether there was an important point of principle or another cogent reason for a second appeal, and whether the lump sum was supportable on the evidence.

1. Disposition. Permission to appeal and a stay of execution were refused. The wife was to receive a copy of the judgment at public expense.
2. Second-appeal threshold. The wife had to show an important point of principle or practice, or another cogent reason, to justify a second appeal. Lord Justice Ward held that no such point or reason existed, and that the proposed appeal had no realistic prospect of success.
3. Financial findings. The Deputy District Judge had made clear credibility findings rejecting the alleged undisclosed capital and accepting the husband’s documentary evidence as to income. Those findings were not open to effective challenge without hard evidence. The material suggesting that his income might have increased did not justify a retrial or give the wife a second opportunity to contest the factual findings.
4. Lump sum. Judge Yelton had correctly concluded that a lump sum is ordinarily paid from available capital or raised against an asset. The husband’s existing debts, the periodical payments order and the evidence concerning his finances did not support imposing a further £30,000 lump sum out of income.
5. Possible variation. Lord Justice Ward observed, without expressing a concluded view, that a substantial and evidenced increase in the husband’s current income might justify an application to vary the periodical payments order. That would be a distinct application based on the present position.

• Court of Appeal (Civil Division): Permission for a second appeal and a stay of execution were refused.
• Southend County Court: On 6 November 2003, allowed the husband’s appeal against the £30,000 lump sum order and revoked that order.
• Southend County Court, Deputy District Judge: Ordered transfer of the matrimonial home and insurance policies, pension sharing, a £30,000 lump sum and periodical payments of £1,350 per month.