Uddin v Choudhury & Ors

Permission to appeal requires a real prospect of success. An appellate court will not ordinarily disturb a trial judge’s assessment of witnesses where the judge heard their evidence and gave reasons for preferring one account.

An absolute gift is not recoverable merely because circumstances change or the donor changes his mind. The failure of a contemplated marriage does not make such a gift returnable where it was neither conditional upon the marriage nor part of an agreed dowry.

The absence of a marriage recognised by English law does not, by itself, prevent enforcement of a separate contractual promise to pay an Islamic dowry. Enforceability depends upon the agreement proved by the evidence.

The applicant sought an extension of time and renewed permission to appeal from a Central London County Court judgment given by HHJ Collender QC on 20 March 2009. The judge had dismissed claims concerning gifts made for the applicant’s son’s arranged Islamic marriage and property allegedly removed by the bride and her family. He allowed the bride’s counterclaim for an agreed dowry, or mehar.

The marriage had been celebrated by an Islamic nikah but not by a civil ceremony recognised under English law. It was later dissolved by the Islamic Sharia council. The county court relied upon its factual findings and evidence from a single joint expert on Sharia law.

The central question was whether the proposed appeal had a real prospect of successfully challenging the findings concerning the gifts, the alleged removal of property and the enforceability of the dowry agreement.

1. The renewed application for permission to appeal was refused. Mummery LJ was prepared to extend time if the proposed appeal had a real prospect of success. The applicant had adequately explained the delay, but none of his proposed grounds met the required threshold.

2. The county court’s findings on witness credibility disclosed no realistic ground of appeal. Assessing conflicting oral evidence was the trial judge’s function. The appellate court had neither seen nor heard the witnesses. The trial judge had explained why he preferred the evidence of the bride and her family, including their denial that they had removed the disputed property.

3. The trial judge had correctly summarised and applied the single joint expert’s evidence on Sharia law. On that evidence and the factual findings, the nikah was valid under Sharia law and had later been validly dissolved by the Islamic Sharia council. It was not a marriage recognised by English law, but that did not prevent legal effect being given to the parties’ agreement concerning gifts and dowry.

4. The gifts were absolute. They were neither conditional upon the continuation of the marriage nor part of the mehar. An outright gift cannot be recovered merely because the donor changes his mind or subsequent circumstances change. The proposed argument that the gifts should be returned or deducted from the dowry therefore had no real prospect of success.

5. The marriage certificate evidenced an agreed dowry. The county court was entitled to treat that agreement as an enforceable contract. Neither the dissolution of the marriage nor the applicant’s allegations concerning the bride’s conduct extinguished the obligation, particularly given the finding that non-consummation was attributable to the groom rather than the bride. Judgment on the counterclaim was therefore not realistically open to challenge.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 1205, Mummery LJ refused the renewed application for permission to appeal. He would have extended time had the proposed appeal possessed a real prospect of success.

2. Court of Appeal, paper determination: Sir Richard Buxton refused permission to appeal because the proposed appeal had no reasonable prospect of success.

3. Central London County Court: HHJ Collender QC dismissed the claims for recovery of gifts and allegedly removed property. He gave judgment for the bride on her counterclaim for payment of the agreed dowry and refused permission to appeal.