Gill v Draper

Permission to appeal in a defended matrimonial suit will be refused where the trial judge has made clear findings of fact after hearing the evidence, the proposed appeal raises no point of principle, and no misdirection in law is shown. The appellate court should not re-evaluate which party’s evidence should be preferred or question findings made by the judge who heard the witnesses. Procedural complaints require substantiation before they can justify permission. Where the findings establish irretrievable breakdown and conduct which the petitioner could not reasonably be expected to accept, the resulting decree is a legitimate conclusion flowing from those findings.

Mr Draper sought permission to appeal from an order made by Her Honour Judge Raeside in the Horsham County Court, following a defended divorce suit brought by Ms Gill. The marriage had broken down after financial difficulties associated with failed catering businesses. The trial judge found both that the marriage had irretrievably broken down and that Mr Draper had behaved in a way which Ms Gill could not reasonably be expected to accept.

Mr Draper alleged procedural unfairness concerning the transfer of the proceedings, refusal of an adjournment, late medical evidence and the exclusion of a witness. The central issue was whether those complaints or the challenge to the factual findings disclosed an arguable basis for permission to appeal.

1. Application refused. The decree pronounced in the county court was a legitimate conclusion flowing from the trial judge’s findings.
2. The appellate court’s role in reviewing a judgment in a contested matrimonial suit is limited. It is for the trial judge, having heard the evidence of the parties, to make findings of fact and to prefer one party’s evidence to the other’s. The appellate court should not question those findings merely because the unsuccessful party disagrees with them.
3. Permission to appeal was not justified because the application raised no point of principle and disclosed no misdirection in law. The court would not prolong litigation or raise unrealistic expectations where the proposed appeal had no proper legal foundation.
4. The procedural complaints were not substantiated by the material before the court. The court accepted that they represented Mr Draper’s perception of the proceedings, but that perception did not establish procedural error.
5. The trial judge had fulfilled the obligation to hear the parties and make clear findings. Her findings that the marriage had irretrievably broken down and that the husband’s behaviour was such that the petitioner could not reasonably be expected to accept him supplied the necessary basis for the decree nisi.

Order: application refused.

• Horsham County Court: Her Honour Judge Raeside heard the defended divorce suit, made findings that the marriage had irretrievably broken down and that the husband’s behaviour could not reasonably be expected to be accepted, and pronounced a decree.
• Court of Appeal (Civil Division): Lord Justice Thorpe refused permission to appeal.