Madan v Madan

On a second appeal, permission requires an important point of principle or practice, or another compelling reason. A procedural disagreement does not satisfy that threshold where the underlying issue could be determined in the ordinary ancillary-relief hearing.

An application under the Matrimonial Causes Act 1973 to set aside dispositions is unnecessary where the applicant does not need the restored assets to satisfy any award. The court may consider the transactions under section 25, adding sums back if improper and excluding them if genuine. A party who deliberately fails to attend a listed hearing cannot ordinarily complain that it was unfair or seek on appeal evidence and submissions that could have been presented at the hearing.

Mr Surinder Pal Singh Madan sought permission for a second appeal against an order made by HHJ Marcus Edwards in the Brentford County Court on 1 March 2007. The judge had dismissed three appeals from orders made by a district judge on 19 May, 2 June and 5 June 2006 in ancillary-relief proceedings following the dissolution of the parties’ marriage.

The district judge dismissed, without a substantive hearing, an application under section 37 of the Matrimonial Causes Act 1973 concerning money given by Mrs Madan to the parties’ adult daughters and grandchildren. He refused an adjournment and proceeded with the ancillary-relief hearing, which Mr Madan deliberately did not attend. Mr Madan argued that he had been deprived of a statutory presumption and that the subsequent hearing was unfair. The central issue was whether the case raised a sufficient point of principle or practice, or another compelling reason, for a second appeal.

Application refused. Wall LJ gave the leading judgment, and Ward LJ wholeheartedly agreed.

1. Second appeal threshold. Section 55(i) of the Administration of Justice Act applied. The proposed appeal had no real prospect of success, raised no important point of principle or practice, and disclosed no other compelling reason for the Court of Appeal to intervene.
2. Section 37 application. The statutory procedure for setting aside dispositions was unnecessary where any award could be satisfied from the remaining matrimonial assets. The court was entitled to regard the application as misconceived and disproportionate. The relevant issue was whether the money properly formed part of the assets available for division, not whether the recipients should actually be deprived of it.
3. Ancillary-relief hearing. The transactions were known and had been addressed in the evidence. In proceedings under section 25 of the Matrimonial Causes Act 1973, the district judge could add the sums back if they resulted from improper conduct, or disregard them if they represented genuine and reasonable expenditure. The absence of the section 37 presumption did not disadvantage Mr Madan or make the hearing unfair.
4. Non-attendance and case management. Mr Madan had no justification for deliberately failing to attend the long-fixed hearing. He could not complain on appeal about unfairness or seek to introduce evidence and submissions which he could have presented to the district judge. The refusal of an adjournment was a proper exercise of discretion, having regard to the clarity of the issues, delay, costs and proportionality.
5. The ancillary orders, including directions for sale of the matrimonial home and consequential arrangements, fell within the court’s overall discretion. The renewed application for permission to appeal was refused.

1. Court of Appeal (Civil Division) — On 9 May 2007, the court refused the renewed application for permission to bring a second appeal. [2007] EWCA Civ 517.
2. Brentford County Court — On 1 March 2007, HHJ Marcus Edwards dismissed three appeals from the district judge’s orders.
3. District judge — Orders made on 19 May, 2 June and 5 June 2006 dismissed the section 37 application, refused an adjournment, and determined the ancillary-relief proceedings in Mr Madan’s absence.