Case No. FD09D05205

19.Ground 1 states: The judge wrongly concluded that the husband failed to disclose material documents engaging pillar (i) and (ii) of D v D [2015] EWHC 1393 (Fam). This unjustly influenced his findings in relation to the husband’s income which then resulted in him erroneously accepting the wife’s evidence in relation to her income and M’s needs and prevented him from varying the maintenance order in the husband's favour. 20.HHJ Everall QC’s decision refusing permission to appeal on Ground 1 was as follows: “(i) The Deputy District Judge (the DDJ) correctly directed himself as to the legal principles (see first judgment paras 45 to 49). (ii)The DDJ had written evidence of the parties and heard the oral evidence of the parties over 2 days. (iii)The DDJ set out his reasons for making the findings in relation to pillar 1 and 2 of the principles set out by Roberts J in D v D (first judgment paras 36 to 39, 45, 47). He further expanded on those reasons in his Supplemental Judgment. The Reasons given are cogent and based upon the evidence which he had received. (iv)The DDJ was entitled to make the findings which he made on the evidence before the court. The appellant has no real prospect of successfully arguing that the DDJ was wrong to make the findings which he made or that in making his findings he took into account irrelevant evidence or failed to have regard to relevant evidence. See Royal Bank of Scotland v Carlyle [2015] UKSC 13, Lord Hodge at paras 21 -22. 21.Ground 3 states: The judge wrongly found that the monies held by Bross Bennett in relation to the division of CGT are forthwith payable to W (para 61). This is inconsistent with para 63 of the judgment which provides that if the order is capitalised the wife will credit the husband with half of the CGT funds. However, the judge goes on to add the husband’s 50% share of the funds to what is owed to W which is contradictory with para 63. The supplemental judgment goes on to say that half of the CGT fund held by the wife’s solicitors is to be deducted from the lump sum to be paid by the Husband (p 4 (vi (a)). 22.HHJ Everall QC’s decision refusing permission to appeal on Ground 3 was as follows: “(i) The Appellant has no real prospect of successfully arguing that the DDJ fell into error in his calculation of the lump sum. (ii) The calculation started with the Wife’s suggested figure of £77,800 which the DDJ found to be "reasonable”. That figure was based on (a) 1,700 pm for 14 months and (b) £1,500 pm for 36 months. The figure of £77,800 is reduced to £66,000 because credit is given for 7 months of payments made at £1,700 pm. As at the date when the order was finalised, another 4 months at £1,700 had been paid.” 23.The right to seek an oral renewal hearing is provided for in FPR r.30.3(5). This right can only be taken away where a High Court judge or a Designated Family Judge refuses permission to appeal and certifies the application to be totally without merit – see r.30.3(5A). The continued existence of this right contrasts with the position in the Court of Appeal since 3 October 2016 where the decision of the single judge on the papers is final and may not be orally renewed unless the single judge permits such an oral hearing: see CPR r.52.5. In my opinion, appeals under FPR Part 30 should be aligned as soon as possible with those in the Court of Appeal. Just as in the Court of Appeal there should be complete trust reposed in the single appeal judge who determines the permission application on the papers. It is a waste of precious judicial resources for a permission application to be run twice, once on paper and once orally. 24.On 10 February 2020 the husband applied for an oral renewal hearing. On 26 February 2020 Williams J directed that the application would be heard by me alongside the substantive appeal on Ground 2.25.I have mentioned above that on 22 July 2020 the husband elected to act in person. This would explain why there was no compliance with PD30A para 4.14. This requires the advocate for a represented appellant to file with the court four days before the appeal hearing a brief written document informing the court and the respondent of (a) the points which the appellant proposes to raise at the hearing and (b) the reasons why permission should be granted notwithstanding the reasons given for the refusal of permission. This is, in my opinion, a highly important provision and I can discern no good reason why it should not extend to appellants who are self-represented. 26.The terms of para 4.14(b) clearly signifies that there is an obligation imposed on an appellant at an oral renewal hearing to demonstrate a good reason why the decision of the single judge refusing permission on the papers was wrong. Such an approach would be consistent with my decision in R (Kuznetsov) v Camden LBC [2019] EWHC 3910 (Admin), 21 November 2019 where a costs order was made by the court of its own initiative and without a hearing in judicial review proceedings. The claimant applied to set aside the order. I noted there was no authority on the approach under CPR r.3.3(5) to set aside or vary an order made under CPR r.3.3(4). I held at [24] that the test under CPR r.3.3(5) was that the court should give due weight to the decision of the judge who dealt with the matter without a hearing and should be able to identify a good reason for disagreeing with his or her decision. 27.I can identify no valid reason why this approach should not be applied where an oral renewal hearing is sought following a refusal of permission to appeal by a single judge on the papers. It makes no sense that I should redetermine the application de novo without giving due weight to the previous decision. 28.HHJ Everall QC rightly identified that the gravamen of Ground 1 was an appeal against primary factual findings by the trial judge and his evaluation of those findings. Such an appeal is always extremely difficult to pursue. HHJ Everall QC cited Lord Hodge’s judgment in Carlyle (Scotland) v Royal Bank of Scotland Plc [2015] UKSC 13. At [2] Lord Hodge said: “…the court must have regard to the limited power of an appellate court to reverse the findings of fact of the judge who has heard the evidence. Those limits are well known. The House of Lords discussed them in Thomas v Thomas 1947 SC (HL) 45. More recently this court has reiterated those limits in McGraddie v McGraddie 2014 SC (UKSC) 12 and Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203; [2014] 1 WLR 2600 and the Judicial Committee of the Privy Council has made similar comments in Beacon Insurance Company Limited v Maharaj Bookstore Ltd [2014] UKPC 21, at paras 11-17. Those limits apply equally in this court as in other appellate courts.” And at [22]: “The rationale of the legal requirement of appellate restraint on issues of fact is not just the advantages which the first instance judge has in assessing the credibility of witnesses. It is the first instance judge who is assigned the task of determining the facts, not the appeal court. The re-opening of all questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources for what would often be negligible benefit in terms of factual accuracy. It is likely that the judge who has heard the evidence over an extended period will have a greater familiarity with the evidence and a deeper insight in reaching conclusions of fact than an appeal court whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence.” 29.These views have been stated on many occasions. In the well-known case of Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, Lewison LJ helpfully summarised the learning at [114]: “Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1997] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include: i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.” 30.In his oral submissions to me the husband complained that the trial judge’s adverse findings against him concerning his duty of disclosure were “prejudiced”. I asked him to give me his best example of this. He referred to the omission from his Form E of the existence of a Swiss branch of his architectural business. The wife noticed a reference in the accounts of the business to an overseas undertaking which led, months later, to the husband admitting the existence of this branch in his reply to questionnaire. This was one of a number of omissions that led the judge to form the view that the husband had been highly defensive in his disclosure obligations. The husband considered that the criticisms were unjustified as this, in common with a number of other omissions, was the result of a mistake when he filled in his Form E. He had never intended to mislead and pointed out that the existence of the Swiss branch was at all times visible on the business’s website. I have to say that I was completely unpersuaded by this argument. The husband did not hasten to correct the error; rather, the truth had to be dragged out of him by the questionnaire process. 31.Here, the assessment of the husband’s motives was quintessentially a matter for the trial judge. Having reached the conclusion that the husband was in breach of his duty of candour the trial judge was plainly entitled to rely on it in reaching his conclusion as to the likely scale of the husband’s future income. He did so by reference to the whole sea of the evidence, the experience of which cannot be replicated in the appeal court which is confined, necessarily, to island-hopping. 32.In my judgment this case does not come close to the high standard that needs to be demonstrated in order to disturb findings of fact. The husband has failed to show any good reason why HHJ Everall QC was wrong in the decision that he made. Accordingly, I, too, refuse permission to appeal on Ground 1. I certify that the renewal application in relation to this Ground was totally without merit 33.The pursuit, again, of Ground 3 is likewise refused. Although the trial judge used some slightly ambiguous and contradictory language, what he intended to achieve is abundantly clear. He made a determination that the residue of the CGT fund was to be divided equally between the parties. This equal division reflected the equal sharing principle as well as their likely proprietary interests in the fund. However, the husband’s half share of the fund would not be paid to him; rather, it would instead be paid to the wife in partial satisfaction of the lump sum awarded in lieu of continuing monthly payments of child maintenance. This is plainly what the judgment intended, and it is explicitly provided for in the order giving effect to it. 34.In his oral submissions the husband sought to argue that the whole of the CGT fund should be applied as a credit against the lump sum liability. This is completely untenable. The wife’s half of the CGT fund is her own property and there is no reason at all why it should be applied as a credit towards the lump sum liability. To do so would be to treat it, as well as the husband’s half, as the husband’s property; or, to put it another way, to treat the whole fund as the husband’s property. The trial judge did not make that finding, and there was no basis on which he could have done so. Therefore, permission will be refused in relation to this ground and its pursuit will also be certified as having been made totally without merit.