IN THE SUPREME COURT OF JUDICATURE LTA + A 97/7349 CMS2 IN THE COURT OF APPEAL (CIVIL DIVISION) FC2 98/5698 CMS2

ON APPEAL FROM ST HELENS COUNTY COURT SITTING AT WIGAN IN THE COUNTY OF GREATER MANCHESTER (HIS HONOUR JUDGE URQUHART) Royal Courts of Justice Strand London WC2 Tuesday, 7 April 1998 B e f o r e: LADY JUSTICE BUTLER-SLOSS LORD JUSTICE PILL -----MARJORIE MIDDLETON Petitioner/Applicant -vALAN MIDDLETON Respondent -----(Computer Aided Transcript of the Palantype Notes of Smith Bernal Reporting Limited, 180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183 Official Shorthand Writers to the Court) -----MISS J WALL (Instructed by Forshaw Spittles Dove & Hood, Cheshire, WA6 7HE) appeared on behalf of the Applicant (Wife) The Respondent (Husband) did not appear and was not represented -----JUDGMENT (As approved by the Court) -----Crown Copyright LADY JUSTICE BUTLER-SLOSS: This is an unusual case, at least I hope it is an unusual case, where on appeal from the District Judge there was a consent order between husband and wife on 11 December 1995 in the Wigan County Court before His Honour Judge Urquhart. In that case under

ancillary relief the husband was the sub-post master at 127 Middlewich Road, Northwich, Cheshire. The purpose of the consent order, which was no doubt hammered out between the parties and their legal advisers in the usual way and approved by the judge, required a number of undertakings by the husband to pay the instalments on the mortgage, to apply funds to any arrears, to keep the premiums on an insurance policy for the mortgage running, to use his best endeavours to continue to run the business of a sub-post office from the property, the same house (since it was both their home and the business) and that the property and the post office business shall be sold forthwith with vacant possession, that the net proceeds of sale of the property shall be divided equally between the parties and the policy with Standard Life shall be owned by the parties equally.

In 1996 the husband prevailed upon the wife through their legal advisers to hand over to the husband the Standard Life policy, at that time with a surrender value of about 3,500 for the purpose of applying that money to repairs to the house.

1996 went through to 1997 and the house and the business were not sold. The wife had expected, and her legal advisers had expected, and no doubt the husband's legal advisers had expected that the property would be sold for something in the region of 69,000 (both the value of the house and the value of the business of the sub-post office). The wife's solicitor had taken the precaution of consulting Post Office Counters Ltd to see whether or not that would meet with their approval and they were confident that the business could be sold with the house as a single entity.

In 1996, unknown at that time to the wife, the husband made an application to Post Office Counters Ltd to move the business of the sub-post office four doors down to No. 119 Middlewich Road in order that it should be run from the property of a friend of his and that he would be the sub-post master in his friend's business. This came to the knowledge of the wife's solicitors and they entered into

correspondence with the post office about what had happened. Eventually, and quite late on, this

application for leave to appeal and for an extension of time against a consent order has been made to this court. It was made on paper. Ward LJ asked a number of pertinent questions and he directed that it should be heard inter partes with the appeal to follow if leave was given. Very recently the husband (whose solicitors are now off the record since his legal aid certificate was discharged on 25 March 1998) has written us a letter saying that he is ill, unable to attend and he has indicated the state of his illness. What he has not done was favour us with a medical certificate. That application for an adjournment came at a very late stage and I directed that the application for leave to appeal should continue and we should put over the appeal until the early part of next term. Once the wife's solicitors appreciated what the husband was doing they took steps as fast as they could. For my part I do not think they can be criticised for the length of time because it was the husband who was not moving and we know now that the dates are as follows. It was in a letter of 25 June 1997 when the wife's solicitors first knew from the post office of the proposed transfer to 119 Middlewich Road of the sub-post office. The actual move was in August 1997. Then we know that 127 Middlewich Road, now stripped of its business, was sold for 19,000. It was repossessed by the mortgagee and it appears from Miss Wall, who acts on behalf of the wife, that it was repossessed for two reasons: one, there were arrears of mortgage and, second, there was disrepair. After the mortgage and the other expenses were paid (and the mortgage by then was some 16,500) there was a balance of 652 only. That is a far cry from the expected value of the property to each party of some 26,000. Effectively the heart of this property was removed when the sub-post office was moved down the road.

On 17 March 1998 the solicitors for the wife obtained an injunction against the husband's assets. There was great difficulty in serving him with the order in respect of the injunction. It has been very difficult to find him and to get in touch with him for any proceedings. So we have this situation: the husband, having agreed to the equal division of the property and the business as a single unit and having sought and obtained the use of the Standard Life policy for the purpose of the repairs, has not carried out the repairs, has not paid all the mortgage, so that there were arrears, and those two reasons (the failure to

repair and the arrears) precipitated the repossession and the sale of course by the mortgagee. He has removed the valuable asset from the property down the road and it was only through the vigilance of the wife's solicitors that anyone knew about it. He has effectively changed an asset of 69,000 into an asset of 19,000 and instead of it being 52,000 net equity it is a net equity of 652.19.

There are possible problems as to whether or not this case comes within any of the existing authorities whereby a consent order can be set aside in relation to facts which have emerged since the consent hearing. But in a case as dramatic and, I have to say, on the facts as presented to this court, as disgraceful regarding the husband's behaviour, as this appears to be, it seems to me, for my part, that the applicant should be given leave to appeal because these facts require an answer from the husband as to why the wife should be deprived of what had been anticipated in December 1995, namely, a respectable sum of money to help her face the future after the divorce was over and the facts which I have just referred to urgently require an answer by the husband. So, in my view, we should give leave. We should put this case in to be heard as soon as possible. The husband must arrange to attend himself or if he does not attend himself through ill health to arrange for lawyers to represent him or preferably do both. He must understand that he has to explain what has happened and why he was justified in the actions which he appears to have taken. He will have at some stage before some court to explain why he appears to be clearly in breach of at least some of the undertakings which he gave to Judge Urquhart on 11 December 1995. Those will not be matters directly before us but if it appears to us that he is in contempt that will be an added reason for us considering how we should deal with this appeal. Therefore I would give leave.

LORD JUSTICE PILL: I agree.

Order: Application for leave to appeal granted; notice of appeal within 7 days; leave to adduce further evidence granted; injunction granted in terms to be submitted; costs in the appeal (legal aid taxation); appeal to be listed as soon as possible; husband to attend or be represented; any application

made for an adjournment should not be easily granted.