Quan v Bray & Anor

On 4 December 2015, a short judgment by Briggs LJ and King LJ was handed down granting Li Quan (the wife) permission to appeal against an order made on 27 October 2014 by Mr Justice Coleridge (as he then was). The court provided for the filing of submissions by the parties in order for case management orders to be made to ensure the smooth running of the appeal itself.

By a Notice of Application dated 7 December 2015 Stuart Bray ( the husband) who represents himself in these proceedings, requests Briggs LJ and King LJ:

“to exercise the jurisdiction granted to them under the line of case law following re Barrell Enterprises [1973] 1 WLR 19, which allow them to reverse or revisit or clarify their decision before sealing of the Order. Such an action would be in accordance with the overriding objective, to deal with the application justly, for the reasons set out in the notes in support of the application attached herein”

Attached to the Notice is a substantial document within which the husband seeks to reargue his case that permission to appeal should not be granted. The husband says: that there are factual errors in my judgment, that the court was grievously misled by those representing the wife at the oral application for permission to appeal and that the reasoning of Mr Justice Coleridge was clear and cogent. The husband underlines the devastating consequences of the litigation on the family and on the Charity.

I have had the benefit of submissions from both the wife and SCT (UK); suffice it to say the wife opposes the application and SCT (UK) whilst making a number of observations, is essentially neutral.

A party may make an application, a so called Re Barrell Enterprises application, to reconsider a judgment including where the judgment is a judgment of an appeal court: Gravgaard v Aldridge & Brownlee The Times, December 2, 2004 CA.

Although there may be cases where a judge should or chooses to make material alterations to their judgment in the interests of justice they will be rare. It should be borne in mind that the granting of permission to appeal is precisely that; the court is not setting aside the judgment at first instance and is neither confirming nor rejecting any of the findings within it. The court in giving permission is simply saying that the appeal stands a real (i.e. more than fanciful) prospect of success on the basis that the judge for the reasons (or some of the reasons) found in the grounds of appeal may have fallen into error.

In Gravgaard the court held that where counsel made further submissions before handing down, the court would only rarely allow them to reopen contentious matters or to attempt to add to their case or make a new case. Similarly in Daniels v Thompson [[2004] EWCA Civ 307 the Court of Appeal refused to give counsel permission to make further oral or written submissions following receipt of a draft judgment.

The submissions made by the husband in support of this application fall firmly within the category of cases where a party has sought to reargue the case, although in this instance, after the handing down of the judgment but before the order has been sealed. The husband will have every opportunity to argue the points he makes at the hearing of the full appeal; in the event that the wife fails in her appeal she will, in all likelihood, have to pay the costs of all parties. The court is not in saying this unrealistic as to the consequences of having given permission. I am aware that of the costs of the appeal itself which will have to be found and that in the event that the wife succeeds in her appeal, it may well be a Pyrrhic victory for her, leading to a retrial at further vast expense and a real possibility that the funds at the centre of the dispute will have been wholly dissipated in costs. It is for that reason that the court in its judgment urged the parties to negotiate and emphasised that even the seemingly ‘unsettleable’ case can be settled if both sides are determined that a solution will be found.

The task of Briggs LJ and myself had in fact been limited to deciding whether to request the judge to amplify his judgment or to grant permission forthwith, Ryder LJ having already expressed the view that the judge’s reasoning was inadequate. Even if that had not been so, this court is not prepared to permit further submissions at this stage covering essentially the same ground as that which was covered by the husband at both the oral permission stage. The application is therefore dismissed and the court declines to reverse or revisit or clarify its decision to grant permission to appeal.

Case management submissions have been made by the other parties. The husband is given an extension to file his case management submissions to 5 January 2016.