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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Di Matteo v Di Matteo [2002] EWCA Civ 1861 (26 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1861.html Cite as: [2002] EWCA Civ 1861

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
SLOUGH COUNTY COURT
(HIS HONOUR JUDGE CATLIN)

		Royal Courts of Justice Strand London, WC2 Tuesday, 26 November 2002

Tuesday, 26 November 2002

1. MR JUSTICE MUNBY: This is an application by the respondent in the suit, Mr Di Matteo, for permission to appeal out of time against the judgment and order given in the Slough County Court on 23 January 2002 by His Honour Judge Catlin. The judge on that occasion was exercising the matrimonial ancillary relief jurisdiction hearing an appeal by Mr Di Matteo against the judgment and order of District Judge Henson dated 5 October 1999.
2. The circuit judge exercised his own discretion in the matter and adjusted the order which had been made by the district judge. Indeed on the terms of the order and in the events which have happened, the circuit judge's order was at least in one respect more favourable to Mr Di Matteo than had been the order of the district judge, because the circuit judge reduced from 52.6 per cent to 50.38 per cent the share of the net proceeds of sale of the former matrimonial home that was to be paid to the petitioner wife.
3. Mr Di Matteo's application for permission came before Thorpe LJ on the papers and was dismissed by him on 17 September 2002. Mr Di Matteo has renewed his application orally today and has appeared before me in person. His submissions and his complaints about the judgment of the circuit judge are set out in the helpful skeleton argument which he had himself prepared and lodged with the court, and which has been elaborated this morning in the course of the submissions which, with great courtesy and eloquence, he has placed before me.
4. Mr Di Matteo has a number of complaints about the manner in which the circuit judge dealt with his appeal. He says, first, that the circuit judge failed to consider the impact of the fact that his wife had withdrawn a sum of £30,000 from a bank account; secondly, that the circuit judge failed to consider the fact that he, Mr Di Matteo, alone had contributed to the mortgage on the matrimonial home for the last five years of the marriage.
5. There is, I am satisfied, no substance in either of those complaints. It may be that those are not matters which are referred to expressly in the judgment of the circuit judge, but it is apparent from his judgment that he took into account and considered all the circumstances of the case and all the relevant matters.
6. Mr Di Matteo's third complaint is that the circuit judge, as indeed before him the district judge, had without any proper evidence placed an arbitrary value on certain property in Italy. True it is that there were no valuations of that property before the court. But I am entirely satisfied, in the circumstances explained by the circuit judge in his judgment, that it was entirely appropriate for the court, in the particular circumstances of the case as it was presented to the court, to proceed as best it could on the basis of such material as there was relating to the value of that property, and that it would have been wholly inappropriate and indeed a disproportionate expenditure to call for formal valuations of that property. There is nothing to suggest that either Mr Di Matteo, or for that matter his wife, have suffered in any way as a result of the way in which the court decided to approach that matter.
7. Mr Di Matteo's next complaint relates to the Italian property, and is to this effect. That the property being, as he says, occupied by squatters is, for all practical purposes, lost to the family and that in those circumstances it was unfair for the judge to give his wife access to English assets in return for him being awarded the Italian assets when, as he would have it, those Italian assets, whatever their value, were not in reality available to him. Whether or not that was a fair outcome is not of course the ultimate issue for this court. However there is nothing to suggest that the circuit judge failed to take those matters into account or to give to those matters the weight which it was for him to give to them in the overall exercise of his discretion.
8. Mr Di Matteo's next point also relate to the Italian property; and is, in effect, that the English court should in that matter have deferred to the Italian court, or have had regard to Italian law. But it was for the English court in relation to this English divorce, to exercise jurisdiction. It was for the English judge to exercise that jurisdiction. It was not a matter for the Italian court. In so far as concerns the suggestion that the English judge should have deferred to Italian law that is, as it seems to me, a variant of the argument in relation to the presence of the squatters, and there is nothing that I can perceive in the judgment of the circuit judge to suggest that he fell into any error in that respect.
9. Mr Di Matteo's next complaint is in relation to the way in which the litigation had been conducted in the period prior to the hearing of his appeal by the circuit judge. He makes complaint about the inactivity of one of the lawyers involved in the case. So far as concerns that matter, that was indeed, as appears from his own notice of appeal to the circuit judge, a matter that was raised by him before the circuit judge. There is nothing to suggest any error in the way in which the circuit judge chose to deal with that aspect of the matter.
10. Mr Di Matteo next complains that the judge inappropriately took into account as one of the matrimonial assets available for distribution between the parties a sum of £60,000 which Mr Di Matteo had, as is common ground, recovered by way of damages in an action for personal injury he suffered. Mr Di Matteo's complaint, as he expressed it to me this morning, was that it was not right to allow his wife, as was the effect of the circuit judge's order, to take the benefit of part of that award of damages since those moneys were intended to compensate him, not merely for the personal injury he suffered to his right hand, but also and importantly to compensate him for the reduced earning capacity he suffers in consequence.
11. In so far as that is a complaint of law, Mr Di Matteo's complaint is, in my judgment, without substance. The judge was entitled as a matter of law to take those damages into account as a relevant matrimonial asset. In so far as Mr Di Matteo's complaint is as to the manner and the extent to which the circuit judge took them into account, it seems to me that the circuit judge was fully entitled in the exercise of his discretion to proceed in the way in which he did.
12. Finally, and this is in essence Mr Di Matteo's real complaint, he says that the overall result was unfair; that he did not deserve to be left financially in the situation he has been, particularly bearing in mind what he says was his wife's matrimonial misconduct during the marriage. His complaint is that he is left at his age and in his state of health unable, as he would be if he were younger or in better health, to start again, and in those circumstances is left with insufficient money.
13. This court can intervene only if it can be demonstrated that the judge in the court below either misdirected himself in matters of law or adopted an erroneous approach or came to a decision that was plainly wrong. The House of Lords in Piglowska v Piglowski has emphasised the care with which permission to appeal in this branch of the law needs to be considered by this court, and the undesirability of this court in such cases granting permission unless there is some real matter of concern or complaint.
14. Despite everything which Mr Di Matteo has said to me both orally and previously in his written submissions, I am unable to detect any even arguable error of law or erroneous approach of principle in the decision of the circuit judge. Moreover, I am wholly unable to accept that the learned judge was even arguably plainly wrong in the exercise of his discretion. The simple fact is that in this particular jurisdiction the judge is vested with a very wide discretion. I am satisfied that the circuit judge exercised his discretion in a manner which was legally impeccable, and in a manner which was well within the generous ambit within which discretion in a case such as this can lawfully be exercised.
15. I agree entirely with the view expressed by Thorpe LJ when, in refusing permission on the papers, he said:

"The judge exercised a broad discretion and there is no evidence of any error of fact or law."

On that ground alone, as it seems to me, this application for permission to appeal must be dismissed.

16. The matter, however, does not end there, because this is an application for permission to appeal to this court from a decision of the circuit judge which was itself a decision given on appeal from the district judge. The matter in this court is accordingly regulated by section 55(1) of the Access to Justice Act 1999 and CPR Part 52.13. These provide that no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers:

"(a) the appeal would raise an important point of principle or practice; or.

(b) there is some other compelling reason for the Court of Appeal to hear it."

17. Quite plainly, in my judgment, this appeal, however important it may be for Mr Di Matteo, does not raise any point of principle or practice, let alone an important point of principle or practice. However compelling the demerits of the circuit judge's decision may appear to Mr Di Matteo to have been I am wholly unable to see any compelling reason for this court to hear the appeal. I agree with Thorpe LJ who said:

"It clearly reveals no important point of law or principle or any other compelling reason."

18. Accordingly, however bitter the consequence of this must be for Mr Di Matteo I have no alternative but to refuse his application for permission. I add only this. His application for permission is an application for permission to appeal out of time, the order of the circuit judge having been made on 23 January 2002 and his notice of appeal not having been lodged until 21 May 2002. I leave wholly out of account in coming to my decision the fact that his appeal is out of time. Had there been merit in the appeal I would not have refused permission simply on the basis that his notice of appeal was issued late.
19. However, as I have said, this application must be dismissed.
(Application dismissed; no order for costs).