Family Law Hub

Lindner v Rawlins [2014] EWCA Civ 1467

Application for permission to appeal against a case management decision refusing an application by the proposed appellant for disclosure against various third parties during contested divorce proceedings. Permission granted.

  • Neutral Citation Number: [2014] EWCA Civ 1467

    B6/2014/2435

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM BROMLEY COUNTY COURT

    (HER HONOUR JUDGE ATKINSON)

    Royal Courts of Justice

    Strand

    London WC2A 2LL

    Tuesday, 14 October 2014

    B e f o r e:

    LADY JUSTICE KING

    Between:

    THE QUEEN ON THE APPLICATION OF LINDNER

    Appellant

    v

    RAWLINS

    Respondent

    DAR Transcript of

    WordWave International Limited

    A Merrill Communications Company

    165 Fleet Street London EC4A 2DY

    Tel No: 020 7404 1400 Fax No: 020 7404 1424

    (Official Shorthand Writers to the Court)

    The Appellant appeared in person

    The Respondent did not appear and was not represented

    J U D G M E N T

    (Approved)

    Crown copyright?

    1. LADY JUSTICE KING: This is an application for permission to appeal against a case management decision made in the Bromley County Court by HHJ Atkinson on 26 March 2014 whereby HHJ Atkinson refused an application by the proposed appellant for disclosure against various third parties.

    2. The application for permission came before Kitchin LJ on 8 August 2014, the basis of the proposed appeal being that without the disclosure sought the proposed appellant would be denied the opportunity properly to present his case.

    3. No note or transcript of the judgment of Judge Atkinson was available on 8 August and accordingly Kitchin LJ adjourned the application for permission.

    4. An approved judgment now having been obtained the matter has been restored for consideration of the application for permission to appeal.

    5. The proposed appellant, the husband, and the proposed respondent, the wife, married on 3 October 2005. On 22 January 2013 the husband issued a divorce petition dated 31 December 2012. He asserted that the marriage had broken down irretrievably and relied on Section 1(b) of the Matrimonial Causes Act 1973, namely, that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with her.

    6. The facts relied on are that the wife, during the course of the marriage, had engaged in multiple lesbian relationships for money and kind. In support the husband named a number of women with whom he says the wife had had relationships, including a woman called Pauline Southerland. He also referred to various online sites, including Yahoo and Gumtree, where he alleged that his wife has advertised for lesbian customers.

    7. The divorce petition was not properly served until 26 April 2013 but immediately on receipt a response was prepared on behalf of the wife and on 1 May 2013 the wife filed her own divorce petition and answer to the husband's petition. She too relied on allegations of unreasonable behaviour. The wife made allegations of serious violence and harassment, including an allegation that she had sustained a broken foot after being hit by the husband with a metal rod.

    8. Following the separation of the parties the husband was charged with assault and later with harassment. A conviction for assault was subsequently overturned by the Crown Court but the conviction for harassment was upheld. Meanwhile private law applications were made in relation to the children. A contested finding of fact hearing was concluded on 20 November and judgment was given on 27 January 2014.

    9. The husband declined to attend that hearing, having dismissed his solicitors, and made a complaint to the Office of Judicial Complaints alleging bias on behalf of HHJ Atkinson who had conducted the trial.

    10. HHJ Atkinson made findings of violence against the husband, including in relation to the fractured foot, and made a Residence Order to the wife in respect of the two children of the marriage.

    11. On 27 January 2014 an order was made whereby the various findings in the Children Act proceedings were admitted into the contested divorce proceedings.

    12. On 26 March 2014, as already recorded, the hearing the subject of this application took place. The husband sought disclosure of a statement Pauline Southerland had made to the police complaining that the husband had carried out an act of criminal damage to her property. That statement, he says, records the fact that the wife had a relationship with Miss Southerland. The second category of disclosure the husband sought was that Gumtree should disclose full details of the wife's advertisements and that Yahoo should verify various emails sent and received by the respondent between the years of 2007 and 2012.

    13. The complaint to the Office of Judicial Complaints having been dismissed on 23 May 2014 the Court of Appeal dismissed the husband's application for permission to appeal HHJ Atkinson's findings of fact in the Children Act proceeding. Those findings, therefore, stand, as does the order that they are admitted into the divorce proceedings.

    14. HHJ Atkinson refused the applications made for disclosure against third parties and ordered each of the parties to file statements in support of their cases in relation to the contested divorce.

    15. The learned judge gave her reasons for her decision for disclosure. In relation to Pauline Southerland she said:

    "The first direction he seeks is that, 'Pauline Southerland's statement of 5 August to Wiltshire Police complaining of an act of criminal damage by me be made available to the petitioner, John Lindner'. In Mr Lindner's petition his grounds are quite simply -- I summarise them, I hope I do not do them any disservice -- that Mrs Lindner, during the course of the relationship, had a course of lesbian lovers and she offered herself to other women, sometimes on a commercial basis. That is the basis of his petition. The significance of Pauline Southerland is that she is one of the mother's alleged relationships. The significance of the criminal damage statement, I am told, is that it records her relationship with the mother. It seems to me that the mere fact that the wife had a relationship or friendship or whatever else with Miss Southerland is not going to assist the judge in determining the rather different allegations that are set out in the petition. The wife, as it happens, admits they have a friendship. This statement will not assist in determining whether there is a string of lesbian lovers, so far as I can see."

    16. In relation to the disclosure sought against Yahoo and Gumtree the judge said as follows:

    "Paragraphs 2 and 3 can be dealt with together. Paragraph 2 invites a direction that Gumtree (the publication) should disclose to Mr Lindner full details of the Respondent's advertisements. These are advertisements of which I have a significant number enclosed within the papers already and which are advertisements that he says are examples of the wife advertising herself and advertising herself for relationships. And, at paragraph 3, Yahoo Corporation to verify emails made and received by the Respondent wife between the years 2007 and 2012 and a series of addresses are cited. I should say that of the series of addresses that are cited the wife admits a number of them are hers. The issue between the parties on that point is the wife says that some of the emails are her and some are not, that the email account has been hacked by the husband. Of course, that is something Yahoo could not assist with. Requiring verification of all email communications from Yahoo and the details of all applications for adverts from Gumtree is wholly disproportionate."

    17. The learned judge goes on to say:

    "There is voluminous documentation available already. The fact of the adverts is evidenced already. The fact of the emails is in evidence. A judge will have to decide whether they are from the wife or not. There is ample information upon which the court can make a determination as to which of these petitions should prevail, which is effectively what it will have to determine."

    18. The proposed appellant appeals out of time.

    19. Unhappily in this case, which has already dragged on for far too long, as a consequence of a series of mishaps in relation to the order of 26 March 2014 it was not until 19 June 2014 that the proposed appellant received an amended order which accurately reflected the orders made by Judge Atkinson in March. I, therefore, grant permission for the proposed appellant to apply for permission out of time.

    20. Pauline Southerland's statement of 5 August to the Wiltshire Police complained of an act of criminal damage. In a facts summary prepared by the police it is said that Miss Southerland says in her statement that she is seeing the wife and that they are in a relationship. The wife for her part has said unequivocally in a statement filed by her on 19 April 2013 that she and Miss Southerland are not and never have been lovers. This statement potentially contradicts what she seems to be saying in an earlier statement dated 1 February 2013 where she seems to refer to being in a relationship with Miss Southerland and comments that such a relationship would receive the deep disapproval of her family.

    21. In this permission hearing I have to consider whether the proposed appellant has a reasonable prospect of succeeding in his appeal against the refusal to order the disclosure of the statement of Pauline Southerland. I think he has a reasonable prospect of succeeding.

    22. (1) Whilst I have not seen the statement, (although I have seen the facts summary in question), it may be that ultimately the statement takes matters no further. It does, however, seem to me to be of potential relevance, both as to the wife's credit and also, if established, a link in the chain of allegations made.

    23. (2) On the face of it it seems that the learned judge may have simply looked at the big picture considering only whether such a statement, if it says what the proposed appellant says it does, establishes that the wife is a lesbian prostitute rather than considering whether it is relevant as part of the overall picture in establishing as a first stage that the wife is having or has had lesbian relationships during the course of the marriage.

    24. The learned judge, on the face of it, does not appear to have taken into account that there would appear to be no compelling third party interests which are affected against disclosure.

    25. Accordingly I give permission to appeal in relation to the statement of Pauline Southerland.

    26. In relation to the other matters of disclosure and, in particular, Gumtree and Yahoo, I have no such concerns. There is available for the trial judge a significant number of advertisements which the proposed appellant alleges are placed by the wife and the wife admits to a number of email addresses referred to by the husband. Yahoo cannot assist the court in determining which emails were, in fact, sent by the wife rather than by the husband, he having allegedly hacked into her accounts; further the fact of the adverts is already evidence without Gumtree being ordered to add to the mass of evidence already available.

    27. I can see no prospect of a successful appeal against the case management decision of HHJ Atkinson in relation to that category of disclosure which she deemed to be inappropriate and accordingly I refuse permission.

    28. Having dealt with the matter before me, therefore, in granting permission to relation to the statement of Pauline Southerland but refusing permission in relation to Yahoo and Gumtree, I would simply say what no doubt other judges have said to this couple on innumerable occasions. This marriage is over and there will be a divorce. Precious family resources are being spent on this contested divorce and one can only guess at the effect on the children of the relentless litigation between their parents. One can only hope that even now they may reach some sort of compromise which allows the divorce to proceed without an appeal and then a subsequent trial.

    SMITH BERNAL WORDWAVE

Judgment, published: 13/11/2014

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Published: 13/11/2014

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