B6/2015/2794 
Neutral Citation Number: [2015] EWCA Civ 1407
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
CIVIL DIVISION
PRINCIPAL REGISTRY 
(HOLMAN J)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 3rd December 2015
 
B E F O R E:

LORD JUSTICE McCOMBE 

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WELCH
Claimant/Applicant
‑v‑
 
WELCH 
Defendant/Respondent 

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 (Transcript of the Handed Down Judgment of
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Miss S Harrison Qc (instructed by Irwin Mitchell) appeared on behalf of the Applicant
Mr P Chamberlayne QC (instructed by Gordon Dodds) appeared on behalf of the Respondent

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J U D G M E N T
1.	 LORD JUSTICE McCOMBE:  There is pending in this court an application by Mrs Vivian Welch, whom I call "the wife" for permission to appeal from an order of Holman J of 31st July 2015.  The order made by Holman J dealt with a number or matters arising in ancillary relief proceedings between the wife and her husband, the respondent.  As I understand there has been no decree absolute yet in this case and I will continue to call the parties "the husband" and "the wife" respectively.
2.	The ancillary relief proceedings have a fairly lengthy and complex history.  However, for present purposes it is not necessary to go back beyond the order of District Judge Hess, made on 9th September 2014, which was made, as I understand it, as a final order in ancillary financial relief proceedings on the parties' divorce.
3.	The principal features of the order were that the former matrimonial home in Guildford, a property called Inglenook, should be sold.  The husband was to receive 99% of the net proceeds of sale and the wife was to receive 1%.  The husband was to make periodical payments of £1,000 per calendar month to his wife until 30th September 2020, with a bar imposed pursuant to section 28(1A) of the Matrimonial Causes Act 1973.  The former matrimonial home was to be made available for the wife's occupation until another property, up to a purchase price of £250,000, had been purchased for her by the husband.  That substitute home was to be made available for her as originally planned during her lifetime.  There was to be no order as to costs.
4.	The wife sought to appeal that order but permission to appeal was refused by Roberts J in February 2015.  For reasons it is not necessary to explore, it seems clear by late March 2015 District Judge Hess at least had formed the view that the wife was not co‑operating in the marketing and sale of the former matrimonial home and the judge warned her in an order of 20th March 2015 that if she failed to do that there was a risk of a possession order being made against her.  It seems that difficulties continued.  Again it is not necessary to set out the details and the husband applied for the possession order that the judge had indicated might be made against her.
5.	That application, it was said, was sent by e‑mail on 31st March 2015 and by courier on 2nd April 2015.  The hearing of the application was fixed for 15th April.  The wife did not attend.  Instead she sent e‑mails indicating she had attended hospital with mental illness symptoms and was unable therefore to attend the hearing.  The judge was not attracted by that ground for adjourning hearings that had been fixed and made the possession order that was sought by the husband.  That order required the wife to vacate the home by 4.00 pm on 13th May 2015.  The husband was released from his undertaking in the order of 19th (or 9th) September 2014, requiring him to permit the wife to reside in the home until a substitute residence was provided.  The judge adjourned questions of whether the costs that might be ordered against the wife should be satisfied in turn by a suspension of the periodical payments order.  He directed that matter should come before him on 2nd June 2014.  That is the order that has caused the case, to come to this court.
6.	The wife applied for permission to appeal from Judge Hess's order.  The application came before Roberts J initially on 7th May 2014.  She refused the wife's application to recuse herself.  She adjourned the application for permission to appeal against the possession order, to be listed before a judge of the Family Division (herself, if available).
7.	On 2nd June 2015 the matter was again before Judge Hess.  This seems to have included an application that Judge Hess in turn should recuse himself.  He refused to vary the periodical payments on the wife's application and ordered the wife to pay the costs on the indemnity basis.  He did however extend the time for vacation of Inglenook to 30th June 2015.
8.	In paragraph 16 of that order, one of the matters adumbrated in the present appellant's notice, he directed the suspension of periodical payments in view of what he saw by then to be significant costs run up in respect of which the wife was to be liable.
9.	The wife sought permission to appeal from that order which came before Holman J on 25th June 2015 and were adjourned by him because of the wife's recent bereavement on the death of her mother.  He adjourned the hearing to 31st July, but he extended time for the vacation of the home until 31st July 2015.
10.	On that occasion on 31st July there were at least following applications before the court, as listed in Ms Harrison's helpful chronology for today's hearing: 
(i) to set aside Judge Hess' order of 9th September 2014 ‑ an ambitious application.  
(ii) to strike out the husband's application for a civil restraint order. 
(iii) for permission to appeal the possession order made on 15th April 2015. 
(iv) for permission to appeal the order of 5th June 2014 suspending periodical payments. 
(v) for permission to use documents in the family proceedings in the proposed proceedings in Queen's Bench Division of the High Court or in criminal proceedings adumbrated by the wife.  (vi) an application for the transfer of the proceedings to Royal Courts of Justice from the Principal Registry  
(vii) an application for permission to appeal against Judge Hess's decision not to recuse himself and 
(viii) permission to appeal the decision of 2nd June, (or may be 5th June) when order matter was made, not to vary the periodical payments order (in favour of the wife) upwards.
11.	All the applications, in so far as adumbrated by me just now, were refused by Holman J on 31st July.  It was a long hearing and it seems his judgment concluded at about 7.00 pm or even later that evening.  His order included a refusal of permission to appeal from the possession order of 15th April 2015.  However, in paragraph 54 of his judgment the learned judge said that he recorded: 
"Roberts J had already refused permission to appeal from the making of the possession order."
12.	Looking at Roberts J's order in May 2015 however, it seems she had merely adjourned that matter for a date to be fixed.  There is an unfortunate slip, understandable in the circumstances, after a long no doubt rather fraught hearing.  Otherwise the wife's applications, of varying nature, which the judge sought to summarise, were refused.  However, expressly as he put it as an act of mercy, Holman J extended the time to vacate the former matrimonial home to 30th September 2015.
13.	As part of his order Holman J refused, as I say, permission to appeal against the possession order.  However, for reasons that I have sought to explain the basis on which he did so was not one dealing with the merits of any pending appeal.  On 21st August 2015, perhaps unsurprisingly given the history, the wife applied for permission to appeal from Holman J's order.
14.	The grounds were initially drafted by her personally.  The application notice sought a stay of the possession of the order, which by then of course stood adjourned to 30th September 2015.
15.	The notice of appeal now containing three grounds, redrafted by Ms Harrison and Ms Villiers of counsel, more realistically confined the areas of fire.  Ground 1 urges firstly, that Holman J was in error in finding that Roberts J had refused permission to appeal the possession order.  Secondly, Holman J had erred in failing to address the merits of Judge Hess's order of 15th April which had made provision for the possession order and thirdly, that Holman J was in error in dealing with Judge Hess's order suspending the periodical payments in the light of outstanding costs liabilities.  
16.	In this state of play this intractable case came before me on the papers on an urgent basis on 29th September, in view of the potential expiry of the period for giving up possession of Inglenook that was to occur on the following day.  At that stage, as it appeared to me, the only really outstanding issue of urgency was to determine the status of the wife's proposed appeal to the Family Division judge against the possession order made in April 2014, had it or had it not been resolved in the Family Division.  It seems that Roberts J had adjourned it for a date to be fixed by her order of 7th May 2015.  However, as I have said, Holman J worked on the basis that the learned judge had already refused permission to appeal.
17.	In those circumstances I thought that one way or another it would be agreed whether the matter had been dealt with in the Family Division or not.  I directed that if parties could agree the matter had been decided or it could not be agreed whether it had not the application for permission to appeal to this court on ground 1 should be listed before me if available or some other judge at this court.  Sadly, the matter could not be agreed.  Ground 1 of the application for permission, the question of the possession order comes back before me.
18.	It seems to me, as it seemed to me throughout, that the question is whether or not there has been a substantive determination of the application by the wife for permission to appeal the order of Judge Hess of 15th April 2015, ordering possession of the house.  The answer may or may not be clear.  The issue to be resolved may or may not be short.  To my mind it is fairly short.  But, it seems to me, that this court is an appellate court is not the one to decide the matter essentially of first instance procedure and/or merits of the application in the first place.  As I indicated to counsel at the beginning of the hearing, I am not prepared to hear an application for permission to appeal on the merits without a proper decision of the High Court having been made or having been made in some form or another.
19.	In the circumstances my direction will be, as discussed with counsel, that the matter should be remitted to the Family Division for the consideration of the judge of that division, preferably Holman J or Roberts J, who may be available, but not to the exclusion of another judge hearing this case hopefully with some expedition, although one is well conscious of the pressures that there are on the Family Division lists.  
20.	For those reasons I so direct and I also direct that the outstanding permission applications in this court be adjourned until the matter remitted to the Family Division has been resolved.