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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 >> Kim v Kim [2001] EWCA Civ 2068 (13 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2068.html Cite as: [2001] EWCA Civ 2068

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(His Honour Judge O'Brien)

		Royal Courts of Justice Strand London WC2 Thursday 13th December 2001

1. LORD JUSTICE THORPE: This is an application made by Mr Kim for permission to appeal the judgment and order of His Honour Judge O'Brien of 16^th October 2001 in the Cambridge County Court. That judgment arose out of divorce proceedings commenced by a petition filed on 3^rd April 2001 by L N Kim, Mr Kim's wife. By that petition she pleaded that the marriage had broken down irretrievably and that Mr Kim had behaved in such a way that she could not reasonably be expected to live with him. In paragraph 11, she gave particulars of that conduct.
2. Mr Kim had, of course, the opportunity to file an answer to that petition but he failed to do so in due time. A certificate was granted by the district judge at the end of July in the absence of any answer. Pronouncement of decree was fixed for 3^rd September. However, on that day, Mr Kim attended and persuaded the district judge to adjourn the pronouncement of decree until 1^st October and extended Mr Kim's time for filing an answer to 17^th September. An answer was duly filed on that day.
3. On 1^st October, Mr Kim failed to appear. He says that he failed to appear deliberately because an order had been made on 24^th September to the effect that the parties and their legal representatives shall attend court on 1^st October. Mr Kim construed that as precluding him from attending in person a construction which is not evidently sound.
4. Accordingly, on 1^st October, in his absence and having surveyed the answer filed on 17^th September, the district judge pronounced a decree. The district judge's reasons were stated thus:

"At paragraph 2, the respondent confirmed he did not dispute any of the facts alleged by the petitioner in the petition. He went on to make a number of other points dealing with a variety of issues between the parties. I read the answer and made the following findings: one, that the contents of the petition were admitted, including the allegations of unreasonable conduct; two, that the petitioner in her special procedure affidavit had confirmed that the contents of her petition were true and that the marriage had broken down irretrievably".

5. The circuit judge, in reviewing that decision, upheld it. He said:

"It seems to me that the district judge on the evidence before him was not only entitled but almost driven to accept the evidence of the petitioner admitted by the respondent and to find as a fact that the allegations set out in the particulars at paragraph 11 were proved.

"At the second stage he was entitled to find, as effectively he is saying there, that as a matter of law those facts which he found proved show that the respondent has behaved in such a way that the petitioner could not reasonably be expected to live to the respondent and therefore that the marriage had broken down irretrievably.

"The third finding that the district judge made in his judgment was that the respondent had not filed a cross petition; that is true. There is no cross petition in his answer and that no part of his answer could be read as amounting to one".

6. Well, is that reasoning sound? The first, and perhaps almost pedantic point to be made, is that it was not incumbent on the respondent to file a cross petition. He was perfectly entitled to file a bare answer and to require a trial on such a bare denial.
7. But the more substantial criticism is of the construction of the answer as being an admission of the facts alleged in the petition. Both the district judge and the circuit judge founded themselves on the opening sentence of paragraph 2 of the answer, which reads:

"I do not dispute any of the facts alleged by my wife".

8. But that cannot be taken as a sentence in isolation. It is the summation of the previous paragraph, paragraph 1, which reads as follows:

"(1) The particulars of facts alleged by my wife are: (a) she has not been entirely happy with the marriage recently; (b) during the summer holidays she met a boyfriend in France; (c) this made her feel extremely unhappy in her present marriage; (d) on 18^th September 2000, therefore, she attempted to break up the marriage and keep the children; (e) this posed serious difficulty between us from 18^th October until January 2001 when the question of contact was finally resolved by our mutual agreement".

9. Reading that paragraph in conjunction with the first sentence of paragraph 2, it is perfectly plain that far from admitting the contents of the petition, the respondent was putting all the petitioner's averment in issue. He had adopted the technique of seeming to summarise the particulars alleged by the wife when in reality he supplanted her allegations with his version of events. So it was, in my opinion, a perverse construction of the answer to regard it as a pleading not only entitling but also driving the Court to accept the evidence of the petitioner.
10. Of course I recognise that this is a second-tier appeal, but where error so fundamental is revealed, or apparently revealed, then it would be unprincipled to drive the applicant from the Court by reliance on section 55 of the Access to Justice Act 1999. Accordingly, I adjourn this application for permission to a date to be fixed for oral hearing on notice with appeal to follow if permission granted.
11. I add only two things: first, I have warned Mr Kim that if the proceedings in this court ultimately go against him, he will almost certainly be condemned in the costs incurred by his wife in this court and those costs ultimately can only come from the family resources. The second warning I have given Mr Kim is that there is some seeming unreality in his determination to contest the petition. The consequence of setting aside the decree nisi will only be to constitute a defended trial on the petition and answer.
12. At such trials, the likely outcome on any statistical analysis would be success for the petitioner and a consequential order for costs in her favour. Again, the only ones to benefit would be the lawyers and their remuneration would come only from family funds. However, Mr Kim has his rights and he must judge for himself the wisdom of exercising those rights.
13. I will endeavour to correct a transcript of this judgment before the end of this term so that those acting for Mrs Kim will know the provisionally critical view that I have taken of the judgments in the Court below and the point which they have to meet if there should be an adjourned hearing of this application on notice.
14. Mr Kim has speculated that in reality, he will arrive at some accommodation with his wife which will allow the marriage to be dissolved in due course on the basis of a petition alleging only two years separation and consent. Obviously, that is much to be desired and if the judgment that I have given this morning enhances the possibility of such a result then my time will not have been wasted. Thank you Mr Kim.