Wilmot v Wilmot

On an application for permission to appeal based on fresh evidence, the court must assess the evidence’s credibility and whether it could have been produced earlier, viewed against the history of the litigation. Evidence that is limited, fragile, or generated by a misleading request, and which carries no real weight on alleged fraud or non-disclosure, will not justify permission. A party cannot appeal a matter that was merely recorded as agreed and was not made an order. Under the Civil Procedure Rules, a notice to admit facts has no effect without an admission; silence is not admission, although non-admission may affect costs if the facts are later proved.

Mr Wilmot sought permission to appeal in long-running ancillary relief proceedings arising from his divorce from Ms Maughan. He sought ultimately to challenge a 2001 financial order and a 2007 consent order, alleging fraud and non-disclosure. Applications 146 and 147 relied on a German birth record, photographs and a California school letter as new evidence. Application 1551 challenged enforcement orders made by Ryder J and raised the possibility of DNA testing concerning paternity. The central questions were whether the new material justified permission to appeal and whether the DNA-testing issue gave rise to an appealable order.

1. Disposition. All three applications for permission to appeal were refused. The applications were described as totally without merit. Evidence filed by Ms Maughan in response to the new material was admitted, but the hearing was not adjourned again.
2. Fresh evidence. The court applied the traditional Ladd v Marshall tests, focusing on the credibility of the evidence and whether it could have been produced at an earlier stage. The latter question had to be considered against nearly 12 years of litigation and the many opportunities previously available to the applicant. The critical issue was the substance and weight of the evidence in the light of the respondent’s answers (para [30]).
3. The evidence concerning Ellen’s birth in Germany could not carry weight on appeal when assessed against Ms Maughan’s evidence. The California school letter was also incapable of supporting permission. It resulted from a highly leading and misleading request, the school had no independent records supporting the dates stated, and the school later apologised for the incorrect information. The material was therefore limited and fragile and did not establish the alleged fraud or non-disclosure (para [31]).
4. DNA testing and appealability. Ryder J had recorded an apparent agreement concerning further DNA or blood testing, but had made no order relating to testing. A party cannot keep an appeal alive to challenge a matter that is not the subject of an operative order. There was accordingly no basis for maintaining application 1551, or the other applications, for that purpose (paras [12]-[13], [32]-[33]).
5. Notice to admit facts. Under rule 32.18 of the Civil Procedure Rules, a notice to admit facts has no effect unless an admission is made. Silence cannot be treated as admission. Non-admission may affect costs only where the facts have to be proved and are subsequently proved despite the notice. The document had no relevance to these proceedings (para [27]).

1. Court of Appeal (Civil Division): On 25 July 2013, all three applications for permission to appeal were refused.
2. Principal Registry, Family Division (Ryder J): Ryder J gave directions in January and May 2012 on the proposed challenge to the 2007 consent order. On 27 February 2013 he refused an adjournment of enforcement proceedings, rejected the substantive objections to enforcement and made enforcement orders. No order was made concerning DNA testing.
3. Earlier proceedings: District Judge White made the original ancillary relief order in July 2001. District Judge Segal later set it aside in October 2005, but Ryder J allowed Ms Maughan’s appeal in September 2006. The parties’ out-of-time appeals were compromised by a consent order made on 2 July 2007.