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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 >> Fitzsimons v Fitzsimons [2001] EWCA Civ 1443 (12 September 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1443.html Cite as: [2001] EWCA Civ 1443

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOLTON COUNTY COURT
(Her Honour Judge Ruaux)

		Royal Courts of Justice Strand London WC2 Wednesday 12th September, 2001

1. LORD JUSTICE THORPE: There was in the spring of 1998 a five-day contested ancillary relief hearing in the Bolton County Court between Mr and Mrs Fitzsimons conducted by District Judge Shaw. At the end of the case the judge ordered that a property within the jurisdiction should be sold and the proceeds of sale distributed in a manner that he thought fit. He also ordered Mr Fitzsimons to transfer to his former wife a property in Spain.
2. Mr Fitzsimons, the applicant today, was dissatisfied with that outcome and he sought to appeal to the Circuit Judge. However, in what seems to be a plain contempt he transferred the Spanish property not to his former wife as ordered but to his son, with the consequence that on 8th February 1999 His Honour Judge Roberts found him in contempt and stayed his appeal pending compliance with the order of the District Judge. That order of 8th February 1999 was unsuccessfully appealed, and in vain did he seek leave to go to the House of Lords. So that area has been as thoroughly ventilated as our family justice system permits.
3. There seems to have been a hiatus in relation to the implementation of the District Judge's order in relation to the property in Bolton because it met a slow market when offered for sale.
4. There were resumed proceedings in the year 2000 with an application to District Judge Shaw for the transfer of the proceedings from Bolton County Court to Weymouth County Court since the applicant had removed to Dorset. That application failed.
5. There was a hearing before District Judge Buckley on 27th July at which the applicant sought the return to him of the title deeds to the Bolton property and his former wife sought an order that the sale of that property, at a figure of £47,000, should be executed by the court in default of co-operation from the applicant. The District Judge refused the applicant's request for the return of the title deeds and made the order to permit the sale to proceed at the court's direction at the figure of £47,000.
6. The applicant then sought leave to appeal the order of District Judge Shaw. He required leave because he was out of time. He was, however, in time with his appeal against the order of District Judge Buckley. Both those applications came before Her Honour Judge Ruaux on 23rd October 2000 and it is against her order that the applicant this morning seeks permission to appeal.
7. Manifestly he is considerably out of time in approaching this court, but I do not consider the case on that basis since it seems to me to be transparently frail on the merits. Judge Ruaux gave a full judgment after conducting a two-day hearing, during the course of which the applicant was represented by counsel and during the course of which he gave oral evidence. As to the application for leave to appeal out of time, she said at page 4 of her judgment:

"This application for leave to appeal is out of time and he gives no good reason for failure to apply within the necessary time. I therefore refuse leave to appeal out of time against the dismissal Mr Fitzsimons' application to transfer these proceedings to the Weymouth County Court."

8. That is an illustration of an exercise of discretion by a judge in the court of trial which is simply not open to review in this court. There is absolutely nothing to suggest that that was not the sensible disposal.
9. The appeal against the order of District Judge Buckley was considered at greater length by the judge. She turned to it at page 4 of her judgment and she dismissed it at page 10 of her judgment. Between those pages she considered the facts in some detail and particularly the evidence of the applicant. She said at page 8 of her judgment that he was glib and evasive when he gave evidence and that she was satisfied that on occasions he was an untruthful witness. Under those circumstances, she concluded at page 10:

"The manner and content of such evidence as Mr Fitzsimons gave during this appeal has served to reinforce my view that District Judge Buckley was correct to dismiss his applications and to grant the petitioner's application in relation to the sale of the property ..."

10. It is the function of the trial judge to make findings of fact and to make the essential assessment of the reliability and credibility of those who testify. Absent some obvious error, this court has no function once a judge has completed those tasks and reached a consequential conclusion as to merit. This is quite simply a hopeless application for permission. This court has no role in relation to these proceedings. Mr Fitzsimons has said today that he is in the process of purging his contempt in relation to the Spanish property and obviously there may be future proceedings in the court of trial. But all that is for the management of that court and this court has no part to play.
11. So for those reasons, this application is dismissed.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________