C v C

The Court of Appeal has a limited role when reviewing findings of fact made by an experienced inferior court following a properly conducted hearing. Permission to appeal should not be granted without an arguable error of law, misdirection, or other proper basis. A party who understands that a divorce may be granted but declines to continue cross-examination cannot ordinarily challenge the resulting decree on the basis of a later assertion of injustice. The civil standard remains the balance of probabilities, although the seriousness of an allegation affects the evidence required to satisfy the court.

The appellant sought permission to appeal two decisions of the Norwich County Court. The first was a fact-finding judgment of His Honour Judge Barham dated 27 January 2006, concerning serious allegations made by the appellant’s former wife. The second was a decree nisi granted by His Honour Judge Darroch on 8 November 2006 in defended divorce proceedings. The appellant had declined to continue cross-examining the wife after stating that he understood the court might grant a divorce. The application concerning the fact-finding judgment was more than 50 weeks out of time. The central issues were whether there was any arguable error in the fact-finding process or legal direction and whether the divorce decision disclosed a proper basis for appellate intervention.

Both applications for permission to appeal were refused.

1. The Court of Appeal’s role in relation to proceedings properly conducted in an inferior court is limited. Findings of fact, including assessments of credibility, are ordinarily matters for the trial judge. Permission should not be granted where the applicant identifies no arguable misdirection in law or other proper ground of appeal.
2. The fact-finding judge had directed himself that the burden of proof lay on the mother and that the standard was the balance of probabilities. The seriousness of an allegation required stronger evidence before it could be established. That direction was plainly correct. The judge had heard both parties, assessed the appellant’s credibility, and found most of the allegations proved. No basis for appellate intervention was shown.
3. The application against the fact-finding order was substantially out of time. Although the court would not place particular emphasis on the lesser procedural delay in lodging the other appellant’s notice, the extreme delay in challenging the fact-finding judgment reinforced the absence of a proper basis for permission.
4. In the divorce proceedings, the appellant had chosen not to continue cross-examination and had indicated that he understood the court might grant a divorce. His decision prevented him from presenting his contrary account in the witness box at the conclusion of the wife’s case. The decree nisi therefore disclosed no conceivable role for the Court of Appeal. Any complaint about incompetent solicitors was a potential claim against them, not a ground for permission to appeal.

The order was: application refused.

• Court of Appeal (Civil Division): refused permission to appeal from the two Norwich County Court decisions.
• Norwich County Court: His Honour Judge Barham made findings on the wife’s allegations after a fact-finding hearing; His Honour Judge Darroch granted a decree nisi in the defended divorce proceedings.