Webb v Chapman & Ors

This is a renewed application for permission following a provisional refusal on paper signed by me last November. Today Mr Mostyn QC criticises my explanation, on the ground that essentially I dealt with only the judge’s adverse findings and the difficulty that the appellant would encounter in seeking to persuade this court that those findings were incompatible with conceded fact. I did not specifically deal with, and concede that I should have specifically dealt with, arguments under grounds 1 and 5, which are freestanding and which might have resulted in judgment for the plaintiff despite the judge’s findings of fact, had the judge taken a different view of the law. There are a number of points to be made in relation to the two grounds that are in that sense freestanding, namely grounds 1 and 5. Mr Mostyn QC has conceded that in order to get ground 1 on its feet he has to persuade the court that the judge was wrong in relation to ground 5.

The skeleton and oral submissions in relation to ground 5 are at first blush reasonably well-founded. Mr Mostyn QC cites and relies upon relatively recent authority in this court, namely the case of Ganesmoorthy v Ganesmoorthy [2003] 3 FCR 167. However, it was very much for the judge to take a balanced view of whether the compromise into which the husband entered, seemingly closing the financial account between the parties forever, nevertheless permitted him to raise in a different legal context issues which he had initially sought to litigate in the ancillary relief and then abandoned.

I am not persuaded that the appellant has sufficient prospects of success in relation to ground 5 in order to open the gates into what I concede is an interesting area of law and social science raised by ground 1. Furthermore, it seems to me, although Mr Mostyn QC will not concede the point, pretty plain that the second proposed respondent would not be much touched or grazed by the rifle fire that the appellant would direct against the wife under the head of grounds 1 and 5.

So, standing back and asking the proper question of proportionality, I reach these conclusions. First, that were we to allow Mr Mostyn QC to proceed in this court with limited prospects of success, only to enable him to carry the socio-legal argument to the House of Lords, we would be visiting on the litigants huge burdens, both financial and emotional, which are in my judgment disproportionate to any prospects of success. This whole litigation could be categorised as a misfortune to all those engaged in it, and, looking at the situation dispassionately, I would not wish to be the one who extended the misfortunes further.

So for those reasons I would refuse the application.

I agree.

I also agree.