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Welch v Welch [2016] EWFC B65

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The residual existence of the appeal process did not render it impermissible for the judge to determine a fresh application relating to the sale of the family home.

  • IN THE PORTSMOUTH FAMILY COURT Case Number GU13D00045

    B E T W E E N:

    VIVIEN WELCH (Applicant)

    - and -

    DENIS WELCH (Respondent)

    Written Judgment of His Honour Judge Edward Hess dated 15th September 2016

    1. This judgment should be read in conjunction with my judgment dated 12th September 2016.

    2. Again, it relates to the long running dispute between Mrs Vivien Welch (to whom I shall refer as "the wife") and Mr Denis Welch (to whom I shall refer as "the husband"). I use these terms for ease of reference, although the parties have in fact been divorced for some time.

    3. In my judgment of 12th September 2016 I set out the position as I then understood it to be. In particular I set out my understanding of the rulings made by McCombe LJ in the Court of Appeal which are set out in his decision records of 15th August 2016, 16th August 2016 and 26th August 2016.

    4. I had interpreted these rulings as McCombe LJ:-

    (i) having given permission to appeal against my decision of 7th June 2016 (to authorise my execution of the of the conveyancing documentation for Inglenook) on the basis that there were realistic prospects of arguing that my order of 7th June 2016 did not comply with Senior Courts Act 1981, section 39; and

    (ii) having declared all the other grounds of appeal pursued by the wife (against my orders of 15th January 2016, 9th March 2016 and 7th June 2016) as being "totally without merit" such that the wife could "not request the decisions to be reconsidered at an oral hearing" and, as such, that "all avenues of appeal have now been exhausted".

    5. Accordingly I assumed that the only future hearing in the Court of Appeal would be a hearing of the appeal for which permission had been given – i.e. the one referred to in paragraph 4(i) above.

    6. Subsequent to my sending out my judgment on 12th September 2016, the wife emailed me a copy of a letter dated 9th September 2016 from the Civil Appeals Office indicating that another hearing had in fact been listed on 2nd November 2016. The purpose of this hearing is to permit the wife to attempt to persuade the Court of Appeal to allow permission to appeal against my order of 7th June 2016 on the wider grounds, i.e. not just on the section 39 point. I understand that the Civil Appeals Office have interpreted the final paragraph of the decision record dated 26th August 2016 as leaving open this option.

    7. It is no criticism of the Civil Appeals Office, however, to note that since the husband's legal representatives have indicated (having considered the cost of arguing the section 39 point and the original conveyancing documentation being redundant in any event by reason of the change in sale price) that they are content for my order of 7th June 2016 to be set aside in any event and do not intend to contest the appeal, it is difficult for a rational observer of the matter to see much purpose in the wife seeking to widen her appeal grounds. My impression is that the wife sees the hearing on 2nd November 2016 as an opportunity to re-open the case overall, but it seems to me that this is a misunderstanding of the position. I recognise, however, that this will be a matter for the Court of Appeal and not for me.

    8. In my judgment of 12th September 2016 I said that I proposed to make the new order sought by the husband. I indicated that in reaching this conclusion I had in particular taken into account the following matters:-

    (i) In essence this order does no more than implement the order I made as long ago as 9th September 2014. It is simply unfair to the husband for him to be denied the fruits of his 2014 litigation. This argument is even more powerful than it was on 7th June 2016, now that the wife has no remaining substantive appeal routes open to her.

    (ii) I can see no merit in the argument that the residual existence of the appeal against my order of 7th June 2016 prevents my making the order sought.

    (iii) It is clear beyond doubt that the wife has no intention of cooperating with the sale process, notwithstanding the clear written warning given to her by McCombe LJ.

    9. In paragraph 7(i) of my judgment of 12th September 2016 I said this:-

    "The wife gave me her view that…in making any decision at all on this application I was being wholly disrespectful to the Court of Appeal and was acting unconstitutionally and unlawfully by causing a lower court to subvert an order of a higher court. My belief is that this assertion is based on a misconception by the wife as to what has happened, but I indicated, and the wife assented, that I would take the unusual step of sending a copy of this judgment to McCombe LJ by email. Plainly, if he agrees with the wife, then no doubt he will make sure that I am aware of this, hopefully before any conveyancing documents are executed. My intention is certainly not to undermine the intentions of the Court of Appeal".

    10. I have accordingly sent my judgment to the Court of Appeal. Unfortunately McCombe LJ is unavailable (being on leave for a period), but I have been informed by the Civil Appeals Office (in particular by Celia Cave, a Lawyer in the Civil Appeals Office) that the view of the Civil Appeals Office is that the residual existence of the appeal process does not render it impermissible for me to determine the fresh application. It does not follow from this indication that the Court of Appeal could not consider an appeal from the order I now propose to make and the wife has already indicated that she proposes to appeal my order. I have refused an application for permission to appeal. It may well be that the application will be pursued again in the Court of Appeal. In the interests of transparency I propose to send a copy of this judgment to the Civil Appeals Office.

    11. In the circumstances I propose to proceed to make the order which I indicated that I would make in my judgment of 12th September 2016. I have asked the court staff in Portsmouth to seal an order (in the form approved by me) and to email it to both parties today. I had originally contemplated making the order on 13th September 2016, but I have chosen to await confirmation from the Civil Appeals Office of the Court of Appeal (see above) before finalising it.

    12. In paragraph 7(ii) of my judgment of 12th September 2016 I said this:-

    "In my order of 7th June 2016 I placed a condition on the execution of the conveyancing documentation, which was that the husband's solicitors retained £75,000 of the sale proceeds for a short period. I did this because I was cognisant of the outstanding appeals and the retention obligation was to be terminated on events which have now occurred. Now that these appeals have been dealt with I do not consider that such a condition is appropriate and I do not propose to include such a condition in my new order."

    I have considered whether my later acquired knowledge about the fact of, and nature of, the hearing on 2nd November 2016 makes any difference to this conclusion. My view is that makes no difference. The important consideration in this context is that the appeals against my orders of 15th January 2016 and 9th March 2016 have been dismissed and declared to be totally without merit.

    13. If either party wishes me to place this judgment on BAILII and requests the same in writing (copied to the other party) I shall do so.

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Published: 04/10/2016

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