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IN THE SUPREME COURT OF JUDICATURE LTA 96/6535/E

(HIS HONOUR JUDGE WILCOX )

Royal Courts of Justice

Strand

London WC2

Thursday, 5 December 1995

B e f o r e:

LORD JUSTICE JUDGE

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MULDER

PLAINTIFF/APPLICATION

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MASON

DEFENDANT/RESPONDENT

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(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)

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The Applicant, Mr Mulder, appeared in person

The Respondent was not represented

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Thursday, 5 December 1996

J U D G M E N T

LORD JUSTICE JUDGE: The plaintiff is in person. He applies for leave to appeal, and if granted, a stay of execution pending appeal, an order made by His Honour Judge Wilcox sitting as a High Court Judge on 21 May 1996. On that date the plaintiff was appealing an order made by Deputy Master Chism on 29 April 1996 when his claim, 1996M, No. 315 in the Queen's Bench Division, was struck out on the basis that it disclosed no reasonable cause of action and was frivolous and vexatious. Judge Wilcox ordered that the action be transferred from the Queen's Bench Division to Guildford County Court and, subject to payment into Court of £750 by the plaintiff, in effect gave him leave to proceed. He ordered that the trial Judge should be District Judge Enzer and that, if the sum of £750 was not paid into Court, then the appeal against the order of Deputy Master Chism was to stand dismissed.

There is a significant background to the present proceedings. Judge Wilcox summed it up in the course of his short judgment:

"This is a claim by a former husband against a former wife ... They owned a matrimonial home together."

Pausing in the narrative, those premises were at 34 Hardwick Road, Ham in Richmond:

"[On the breakdown of the marriage] the sale of [the matrimonial home] was postponed during the minority of one of the children. Ultimately when that child achieved his majority ... the parties agreed not to sell the property but to let it and divide the proceeds of sale equally after the payment of necessary expenditures such as maintenance, outgoings and the like. It is clear that the property was let. An account has been rendered by the former wife, the defendant to this action. It is clear that certain deductions were made that could be the subject of property argument and dispute."

In the Queen's Bench Division the plaintiff was claiming for a half share of any rental income from the premises which had been let, or damages for breach of contract arising from his alleged loss of profit, or damages for any loss of profit arising from his former wife's misappropriation of any profits to which he, the plaintiff, was entitled by reason of his beneficial interest in the premises. Finally, apart from questions of interest and costs, to "any further damages for breach of contract or breach of trust, such amount to be assessed by the Court."

The plaintiff's essential point in the course of this application is that the proceedings he has brought in the Queen's Bench Division represent, as indicated in the pleading, damages for breach of the contract reached between himself and his former wife. It is, he says, quite unconnected with the former marriage and, more important, unrelated to the matrimonial proceedings. Matrimonial proceedings in this case have had a very long history. It is quite unnecessary in the course of this judgment to set out a narrative account of the many occasions when the parties have litigated about and over the matrimonial home. The problem can be illustrated simply by saying that those issues have been to the Court of Appeal on at least one previous occasion in April 1996, and there is on foot (though not before me today because I have adjourned it) a further application in those proceedings by the present plaintiff in respect of amendments to orders made by His Honour Judge Sleeman.

In my judgment, the suggestion that the present proceedings are unrelated to the matrimonial proceedings is nonsense. They arise, if they arise at all, from the dispute between the parties which has continued for a very long time in relation to 34 Hardwick Road, Ham in Richmond. The way in which Judge Wilcox approached the problem was to consider the deductions which might be made; the problem of how to deal with an admitted agreement between the parties about the sharing of the wedding expenses of their daughter; and the contention of the defendant that a half share of those expenses should be set off against anything otherwise accruing due to her former husband. He alleges that for five years he was due to have received income from the property which has now been sold by order of the Court.

The way in which Judge Wilcox approached the matter was to remind himself of the long "and contentious history" as to the litigation between the parties and the costs orders against the husband which were hotly disputed by him. He said that he had to be realistic and robust about the matter. He concluded that there was just an arguable case as to the amount that is the subject of deduction against the husband's share of the net rentals during the period 1990 and 1991 which, in his view, might amount only to some hundreds of pounds. He went on that he concluded that the plaintiff was entitled to have adjudicated that part of his claim which could properly be regarded as a set-off by the wife, but because he felt that the basis of the claim on his reading of the papers was that it was shadowy, the order would be conditional on payment into Court of the sum of £750. He allowed two months so that the plaintiff could borrow or raise the money.

The matter having been concluded before Judge Wilcox, he then refused the application by the plaintiff for leave to appeal and he has renewed it before me today. The short answer to the present application is that Judge Wilcox examined the facts with great care and he reached his decision after carefully balancing the available evidence and he could not, in my judgment, have been fairer to the plaintiff than he was without creating an injustice against the defendant. If I had had to consider this matter by myself rather than considering the exercise of a discretion by a Judge of the Queen's Bench Division, I would have reached the same conclusion about the shadowy nature of the plaintiff's case, but also concluded that a condition would be an appropriate way in which to deal with the shadowy nature of his case. Accordingly, in my judgment, far from being a case in which there is an arguable possibility that the Full Court would interfere with the exercise of the discretion by Judge Wilcox, this seems to me to have been a pre-eminently sensible decision fairly reflecting the overall merits of the case as they stood before him and as they stand now before me.

A further query raised by the plaintiff concerns the order for costs. He says in effect that he won the appeal. That is putting it over enthusiastically. The way in which the learned Judge approached the problem, in my judgment, was within his discretion, and the Court of Appeal would not set his decision aside unless it were clear that he had either applied some improper principle, taken into account something he should not have done, or not taken into account something he should have done. The exercise of his discretion in the circumstances of this case is not susceptible to criticism.

The final question concerns the transfer to Guildford County Court with a direction that the case should go to District Judge Enzer for resolution. All that I can say about that order is that it seems to me to have been eminently sensible. This case and the litigation has been going through Guildford County Court for some time. It is clear from the papers that I have read in the course of this application, and the application which has been adjourned for leave to appeal the decision of His Honour Judge Sleeman, that Guildford is seised of this case and District Judge Enzer in particular is very familiar with it. It is said by the plaintiff that District Judge Enzer does not want to have anything more to do with this case. As things stand at present, there is no evidence or information from District Judge Enzer of that kind, and a general wish that the litigation might come to an end -- which is a perfectly sensible, possible view of the case -- does not amount to a view by him that he does not want to try it. If it were asserted (and I do not see that it has been) that District Judge Enzer should be disqualified from trying the case because he had formed a view adverse to the plaintiff and the like and so, in effect, could not exercise his judgment in a fair and balanced way allowing the plaintiff the appropriate measure of consideration and his case an unprejudiced approach, then obviously that is a matter which would have to be reconsidered. But that is not before me and that is not the way that this application is presented, nor, as I understand it, is it the way it was presented before Judge Wilcox. What happened was the plaintiff had said at the end of the hearing, "If this case is going back to Judge Enzer, we will probably have another hearing that we should have had already in August 1993". He did not suggest that he felt that Judge Enzer would be improperly biased or prejudiced against him. Accordingly, the order made by Judge Wilcox seems, not only to have been eminently sensible in relation to Guildford County Court, but also appropriate in the sense that the case was remitted for hearing before District Judge Enzer.

In those circumstances, there is no item before me on which the plaintiff would have any realistic prospect of success on appeal to the Full Court, and this application will be refused.

ORDER: Application dismissed.