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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 >> Lambie v Lambie [2002] EWCA Civ 1414 (11 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1414.html Cite as: [2002] EWCA Civ 1414

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
(MR RECORDER SPON-SMITH)

		Royal Courts of Justice Strand London WC2 Wednesday, 11th September 2002

Wednesday, 11th September 2002

1. LORD JUSTICE WARD: This is an application for permission to appeal against the grant of a decree nisi of divorce by the recorder, Mr Spon-Smith, on 2nd August 2002. The petitioner was the husband in a marriage which was celebrated in September 1991 and broke down on a date which was in issue, either April 1998 or September 1999.
2. Mrs Lambie appears in person and makes her submissions courteously and with conviction. Her first complaint is that the court ought to have allowed an adjournment. The judge refers to that in paragraph 3 of the judgment, saying that the application had been made but refused for reasons which he gave at that time and which he did not need to repeat. Unfortunately Mrs Lambie has not been able to obtain a transcript of the judgment dealing with that refusal to adjourn, which makes it impossibly difficult for this court to interfere with that decision. Moreover, I did not understand from the papers before me that there was even a challenge to the adjournment.
3. The effect of the refusal was that an important witness who had come over from America to be at the trial when it was due to start on the Wednesday of that week was unable to remain over until the trial actually began some days later. She had to go to Spain and it was impossible to get her back. That matter was or could have been referred to the judge. I do not know, as I have said, to what extent he took it into account. But in the absence of a judgment I cannot criticise the judge for his failure to weigh matters properly in the balance. The witness's statement was before the judge, and he says in his judgment that he had regard to all the evidence written as well as oral. I have no reason to suspect that he did not, even if he failed expressly to refer to Mrs Pettigrew, and all in all I find it impossible to say that he has so wrongly exercised his discretion that the whole of this trial ought to be upset as one which was not fair. I cannot support that ground of appeal.
4. The judge pointed out that the most important witnesses were the parties themselves, and he gave an assessment of them and their personality, bearing in mind his observations of them as they gave their evidence. In the result he was satisfied that the husband was an honest and essentially reliable witness. He found that the wife had at one stage been guilty of fabricating a certain reason for an adjournment, and he came, as he says in paragraph 13 of his judgment: "... to the clear conclusion that, on the whole, the evidence of the husband is significantly more reliable than that of the wife. I also found the other 'live' witnesses to be honest and credible." He was particularly impressed by the husband's mother as "patently honest and truthful."
5. Mrs Lambie's overwhelming difficulty is that this court cannot interfere with findings of fact based upon our assessment of probabilities or improbabilities when the judge has had the advantage we do not have of forming an assessment of the credibility of those witnesses he is able to see and judge. Quite clearly he believed most of the evidence given by the husband and on his behalf, and so made findings generally in support of the petition and specifically in support of 12 particular facts. Mrs Lambie says that she can picket them one by one and demonstrate they are incorrect. But there remains a broad pattern of behaviour of habitually belittling the husband. There are specific findings in October 1991 of the wife screaming abuse at the husband, punching and kicking him; and there is an incident in the summer of 1998 when the judge found that the wife had smashed the windscreen and two other windows of his car with a golf club and threatened him with the club. The judge rejected her explanation that it was a desperate measure to prevent him driving when over the drink drive limit. Allegations of that kind almost by themselves would, I am afraid, in this day and age probably justify the finding that the wife had behaved in a way the husband could not reasonably be expected to endure and would almost by themselves justify the grant of a decree.
6. I fully appreciate Mrs Lambie's difficulties in marshalling her witnesses, and it may well be that the husband and his friends were less than forthcoming with assisting her trace Paula and Caroline, the girlfriends of two of his witnesses. One was traced in time and her evidence was before the court. I have seen evidence the wife would wish to put in from two other witnesses, David McCarthy and Steffanio Roger. There is no application to adduce them as further evidence but I will not hold that against this litigant in person. Having looked at them I see at once the difficulties that would face Mrs Lambie, firstly, I am not persuaded that it was impossible for her to obtain these witnesses in time; it may have been difficult but it was perfectly reasonably possible to get them before the court or to get their statements before the court. Their evidence is essentially that both Mr and Mrs Lambie, and importantly Mrs Lambie, were hospitable hosts and welcoming friends, which would go to some of the issues of the lack of the wife's support to her husband in entertaining his friends. But it does not seem to me that it goes sufficiently to the heart of the matter to override the general conclusion found by the judge that the husband and his witnesses were honest and reliable.
7. Mrs Lambie makes a further point that the judge placed undue emphasis upon her refusal to acknowledge that the marriage had broken down. I am sympathetic to her on this point. It may be even that the judge approached the matter incorrectly. A marriage breaks down in the eyes of the law, as set out in the Matrimonial Causes Act, when one of the facts is proved; and the fact which has proved the breakdown of the marriage is the fact that a party had behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. An emphasis on whether subjectively or not the parties regarded the marriage as broken down may well be said to be irrelevant. But even if that is a good point, and even if one allows the full force for that, it does not seem to me to assist Mrs Lambie on an appeal because she still has the mountainous obstacle to overcome that on the fact of whether she behaved in such a way that he could not reasonably be expected to live with her the findings of fact against her.
8. I am afraid this is yet another case where the Court of Appeal has its hands tied by the difficulties of upsetting findings of fact. I see no real prospect of success for Mrs Lambie to achieve that, and without the real prospect of success I simply cannot give permission to appeal. It follows that, although I am sympathetic towards her and do not underestimate the difficulties she faced in the conduct of her defence of this petition, on the findings of the judge there is no real prospect of success and I must dismiss her application.
(Application dismissed; no order for costs).