Yankah v Yankah

Bankruptcy may substantially restrict the family court’s discretion in ancillary relief proceedings. Where a spouse’s interest in property has vested in a trustee in bankruptcy, the court must respect the trustee’s strict legal rights and cannot make a discretionary transfer order which the bankruptcy prevents. Fresh evidence is relevant only if it could affect the validity of the bankruptcy or the correctness of the orders under challenge. An extension of time for an appeal requires a compelling explanation; a delay exceeding two years is ordinarily fatal, even where the proceedings are complex. The court may nevertheless examine the merits and refuse permission where the proposed appeal has no reasonable prospect of success.

The appellant sought permission to appeal, together with substantial extensions of time, against orders made by Her Honour Judge Plumstead in protracted matrimonial and ancillary relief proceedings. The orders concerned ownership of the former matrimonial home, the effect of the respondent’s bankruptcy, ancillary relief, and an order for sale. The appellant also sought to rely on new evidence concerning alleged beneficial interests in other properties. The respondent’s trustee in bankruptcy was seeking to enforce against the respondent’s share of the former matrimonial home. The central issues were whether permission should be granted out of time and whether the proposed grounds had any realistic prospect of success.

1. Disposition. The applications for extensions of time and permission to appeal were refused. Appeals had to be lodged within 21 days, whereas the appellant sought an extension of more than two years. The delay was too long by any standards. Although the proceedings were genuinely complex, that did not discharge the almost insuperable burden created by such delay ([12]).
2. Effect of bankruptcy. The order determining ownership of the former matrimonial home involved strict legal rights, not the exercise of judicial discretion. The nominee was found to hold the property for the parties in equal shares, and the respondent’s share had vested in his trustee in bankruptcy ([7]).
3. Ancillary relief. The court’s discretion was seriously curtailed by the bankruptcy. The trustee was entitled to enforce against the respondent’s share, subject to an opportunity for the appellant to buy that share. A discretionary transfer of the property to the appellant, although it might have been made absent the bankruptcy, was therefore unavailable ([8]–[10]).
4. Merits and fresh evidence. The judge below had correctly directed herself in law and applied the law to the facts without error. The proposed fresh evidence, even if proved, did not concern the validity of the bankruptcy and could not affect the correctness of the orders. The proposed appeal consequently had no reasonable prospect of success ([10]–[13]).
5. Additional observation. The court noted, without expressing a view on the merits, that the liberty to apply relating to a possible lump sum payment might provide a basis for further consideration if the new evidence had substance and there were a prospect of successful enforcement ([14]).

• Court of Appeal (Civil Division)—in Yankah v Yankah, [2011] EWCA Civ 921, a single Lord Justice refused extensions of time and permission to appeal.
• Principal Registry of the Family Division—Her Honour Judge Plumstead made orders on 10 October 2008, 15 October 2008 and 23 January 2009 concerning ownership of the former matrimonial home, ancillary relief and its sale following the respondent’s bankruptcy.