B6/2013/0146
B6/2013/0147
B6/2013/1551 
Neutral Citation Number: [2013] EWCA Civ 1160
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE RYDER)
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 25 July 2013
 
B e f o r e: 

LORD JUSTICE LLOYD

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Between: 

WILMOT 
Applicant 

v 

WILMOT
Respondent 
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(DAR Transcript of 
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Mr Mark Emanuel (instructed by Osbornes) appeared on behalf of the Applicant

Mr Jonathan Swift (instructed by Thompson Snell & Passmore) appeared on behalf of the Respondent
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J U D G M E N T
LORD JUSTICE LLOYD:  

1.	This is the oral hearing, adjourned in circumstances that I will mention, of two applications for permission to appeal and also of a further application for permission to appeal which has arisen since the first two were previously before the court.  They are made in litigation which has been continuing for a very long time.  Part of the appellant’s aim is to have set aside an order made in July 2001.  

2.	I will refer to the parties as Mr Wilmot and Ms Maughan.  They were married to each other, and the proceedings are those relating to their divorce and the ancillary provisions arising from that.  They were married on 9 November 1991.  The marriage was dissolved by decree nisi of 20 June 2000, made absolute on 20 September 2001.  There are three children with whom the proceedings have been concerned: Lisa who is now 20, Stuart who is now 18, and Ellen who was born on 12 October 1998 and is therefore 14.  Mr Wilmot has remarried, Ms Maughan has not, but she has two other children, Kristina and Lucia, by a Mr Jenkins.  Mr Wilmot disputes the paternity of Ellen, although a declaration of paternity to the effect that he was her father was made on 3 August 2000.  She is the subject of a sole residence order in favour of Ms Maughan.

3.	The proceedings originally started in Canterbury, but they were then transferred to the Tunbridge Wells County Court.  I note that, according to a chronology that I have seen, as early as July 2000 Mr Wilmot was writing to the County Court alleging fraud and dishonesty on the part of Ms Maughan.

4.	On 12 July 2001 District Judge White made what he intended to be a final order in the ancillary relief proceedings as between the parties, which was perfected on 24 September 2001.  Some four years later, Mr Wilmot applied to set aside or vary that order, and he succeeded before District Judge Segal by an order of 28 October 2005.  Ms Maughan appealed against that order on the basis that the order was obtained by fraud and non‑disclosure on the part of Mr Wilmot.  That appeal came before Ryder J in the High Court and he allowed it by an order of 26 September 2006.  I have seen his judgment given following that hearing.  That is the first of many orders and judgments made and given by him in these proceedings.

5.	Both parties sought to appeal out of time against District Judge White's order, reinstated as it was by Ryder J.  Their respective appeals were compromised by what no doubt appeared at the time to be a sensible consent order on 2 July 2007.  In essence, what Mr Wilmot now seeks is to set aside that consent order made by Ryder J, to reinstate his appeal against District Judge White's original 2001 order and to pursue that appeal.  He contends that the 2001 order and, I take it, also the 2007 order, was obtained by fraud on the part of Ms Maughan, in particular that she pretended in the 2001 proceedings to be financially entirely dependent on Mr Wilmot when in fact, he says, she was then in a relationship with and, what is more important, financially supported by Mr Jenkins.

6.	In early 2012, Mr Wilmot presented to the court two purported applications dated 3 January and 15 March.  At that stage he acted in person.  This was not always the case.  For example, at the stage of the hearing before District Judge White and at the stage of the consent order, both parties were represented by solicitors and counsel.  But for much of the time Mr Wilmot has acted in person.  Fortunately for him, today he has the great benefit of representation by Mr Mark Emanuel of counsel, as he did at the hearing from which this hearing was adjourned (as regards the first two permission to appeal applications) before Thorpe LJ on 26 February 2013.  Acting in person, however, he put before the court in early 2012 applications which included a request for a transfer of the proceedings to a court of criminal jurisdiction and for a suspension of all financial orders.  Faced with those and a number of other applications, Ryder J held a hearing on 24 January 2012 at which he gave directions with a view to ensuring that such issues as required to be resolved were resolved in an orderly, efficient and fair manner.  He gave case directions on the basis of the view which he had formed, which was that essentially what Mr Wilmot wished to do was to appeal against the consent order of 2007 on the basis of misrepresentation and fraud.  That was something that he could only do to the Court of Appeal.  He set out a timetable within which to do that and a further timetable if he wished instead to apply to vary the 2007 order.

7.	Ryder J gave a reasoned judgment following that order on 2 May 2012.  On 26 May 2012, he conducted a further hearing to deal with matters as to which he could only give directions rather than dealing with them substantively at the hearing in January.  His conclusion, as I say, was that Mr Wilmot's application had to be for permission to appeal to the Court of Appeal, that this was not something which he could grant, and even if he could grant it, he would not, so it was a matter for Mr Wilmot to pursue in the Court of Appeal.

8.	Mr Wilmot seems to have prepared documents with a view to such an appeal in June 2012, but the appellant's notices were not in fact filed until January 2013.  I have seen some documents relating to an explanation for the delay in that respect.  It was contributed to in part by some delay in the obtaining and approval of the transcript of Ryder J's judgment of 29 May 2012.  In the meantime, Ms Maughan had been preparing enforcement applications to endeavour to enforce her rights for the benefit of herself and her children under the still subsisting orders, and those applications came before Ryder J on 27 February of this year.  It was the day before that hearing that the first two of the permission to appeal applications, in appeals 146 and 147, came before Thorpe LJ with, as I say, Mr Emanuel representing Mr Wilmot.  Ms Maughan was not represented at that hearing, but there was present in court someone on her behalf with an instruction to watch and note, from which I have, and indeed Ryder J had, a note of what had been said.  I have also seen a transcript of Thorpe LJ's judgment.

9.	The permission to appeal application was put to Thorpe LJ on the basis that Mr Wilmot relied on two additional pieces of evidence, which he contended showed that the evidence on the basis of which Ms Maughan had obtained the relief that she did by the order of District Judge White in 2001 was obtained by non‑disclosure and worse.  Thorpe LJ was sceptical of the force of those two matters, but he said that the most that he was prepared to do was to adjourn the hearing so as to come on for hearing on notice to Ms Maughan with a view to her putting the two pieces of evidence that were said to be new in their context.

10.	On 27 February 2013, the next day, Ryder J considered an adjournment application on the part of Mr Wilmot in relation to the enforcement proceedings on the grounds of the pending application for permission to appeal, and also, it has to be said, on the grounds that Mr Wilmot, who at that hearing was representing himself, was feeling distinctly unwell.  In the event he had to leave the hearing after it had been proceeding for some considerable time but before judgment was given.

11.	Ryder J in his judgment, which I have seen, was plainly sceptical that the new documents would prove anything really material even if taken at their face value, and he refused to adjourn the applications that were before him.  He also rejected such substantive arguments as were addressed to him against enforcement.  His order was expressly made on the basis that Ms Maughan would be filing an affidavit in the Court of Appeal in relation to the adjourned application for permission to appeal.  He made a number of specific orders by way of enforcement, and appeal 1551, which is also before me on a permission to appeal application, is brought against that order by an appellant's notice dated 5 June 2013.  

12.	There is one discrete matter that I need to mention in that context. There had been discussion, and in the course of the hearing before Ryder J before Mr Wilmot had to leave there was further discussion, of the question of further DNA testing, possibly together with blood testing, in relation to the issue of the paternity of Ellen.  His order recites three relevant matters: 

"and Upon the Petitioner [Ms Maughan] agreeing to DNA/blood tests in order to determine the issue of paternity such tests to be taken from Lisa, Ellen and Stuart (if each child consents) 

and upon the Respondent [Mr Wilmot] agreeing to participate in the provision of DNA samples and in particular a blood sample for analysis in respect of the paternity of Ellen

and upon the Petitioner's Solicitors agreeing to make the appropriate enquiries and arrangements for the testing and to notify the Respondent of such proposed arrangements."

13.	So those were three of a number of recitals after which the judge went on to make the order that he did, no part of which deals with the question of DNA or blood testing.  So that is a matter which is left on the basis that they are said to have been agreed, but was not itself the subject of a court order.  

14.	As envisaged by both Thorpe LJ and Ryder J, Ms Maughan has put in an affidavit in relation to the 146 and 147 permission to appeal applications, and to the new evidence sought to be relied on by Mr Wilmot.  That affidavit was made available to Mr Wilmot in unsworn form on 12 July and was sworn on 15 July and is now available in that form.  There is also a witness statement of Ms Maughan's solicitor, Ms Judd, of 11 July.  Also before me, besides Mr Wilmot's applications, is Ms Maughan's application for permission to rely on those two matters of evidence on these applications.  The first matter that I heard this afternoon was that application, and I indicated by way of ruling that I would allow that evidence to be relied on before me, and that I would give my reasons in the course of my judgment, which I shall.

15.	So far as the evidence is concerned, the position is this.  In June of last year, Ms Maughan provided, or was able to provide and her solicitors provided, to Mr Wilmot, a German birth certificate in respect of Ellen which was issued on 15 October 1998, recording a date of birth of 12 October 1998 in Schwerte in Germany.  There is not only the extract from the birth register but there is also a copy of the notification of the birth (Geburtsanzeige) which records Mr Wilmot as the father and shows on the second page that it was signed by the mother and, apparently, by the father. 

16.	Mr Wilmot contends that he never went to Schwerte, that he certainly was not in Germany at the time of or immediately after the birth of Ellen, and that is all part of his case for saying that Ellen was not his daughter.

17.	He denies that the signature that purports to be his was in fact put on the document by him and he contends that this is an instance of the provision of false and fabricated evidence by and on behalf of Ms Maughan.

18.	Ms Maughan in her evidence says that Ellen was born in the early morning of 12 October in the hospital in Schwerte in Germany, which is where her parents live.  Mr Wilmot was then in England looking after the other two children, and he agrees that he was there at that time.  He says that he did not come to Germany and he was not present in Germany to register the birth and the birth certificate is false in that respect.

19.	Ms Maughan says to the contrary: he came to Germany with the elder two children as soon as Ellen had been born and he went with her to the relevant office in the town in Schwerte where he signed the form.  Moreover, she produces some photographs which she says she found recently in her box of family treasures showing, she says, the very, very young Ellen in hospital with the older two children, and in one of the photographs with Mr Wilmot.  That is part of the evidence which she seeks to adduce and of course also the birth notification apparently signed by him.

20.	That is one aspect of the evidence.  Mr Wilmot's answer is that he has never been to Schwerte.  He did not go to the hospital.  He did travel to Germany shortly after the birth with the other children at their half term.  But he says in particular in relation to this evidence relied on by Ms Maughan that he has not seen it until 12 July, although some of it at any rate was in the possession of Ms Maughan and to her knowledge as much as 3 to 4 months ago and that he needs further time to consider it and to answer it.

21.	The other aspect of the evidence concerns the question where the children were, and therefore where the mother was, in July 2001 at the time of the hearing before District Judge White.  It has been Mr Wilmot's contention for a fair number of years that she was already based in California with which Mr Jenkins had connections from earlier in 2001.  He says that only in February 2012 did he discover the name of a school at which Stuart and Lisa had spent some time as pupils in California.  He relies on a letter from the Stevenson school, which is the school in question, dated 11 June 2012 addressed, "To whom it may concern", which is written to certify that both Stuart and Lisa were enrolled as full‑time students at the Robert Louis Stevenson school in Carmel, California from February 2001 through to December 2002.  If that were right, he says, then the evidence put to Judge White was put on a fundamentally false basis because the District Judge was presented with a case that Ms Maughan was a single mother looking after the children and was based in England and wishing to travel to Germany, not that she was based already in California and having a relationship with Mr Jenkins.

22.	That letter, on the face of it, would seem quite interesting in the context of that.  But the position is not as straightforward as that.  It seems that the position is this: Mr Wilmot approached the school (according to the school by telephone, according to him both in a personal visit and a telephone call).  He asked the school to provide information about the attendance of Lisa and Stuart at the school.  The school replied that the files of the two pupils had been shredded and that they no longer had information with which they could assist.  Mr Wilmot responded to that communication which was by e‑mail, saying "Oh dear, in that case for their university admission if I could just [have] a letter confirming the dates that they attended Stevenson school from your computer entries".  This was not of course anything to do with university entry.  The response to that was a letter saying:  "This letter is written to certify that Stuart Wilmot and Lisa Wilmot were enrolled as full‑time students in the school during the academic year 2001/2002." 

23.	Mr Wilmot was not content with that because that of course did not tie the dates down sufficiently, so, by then back in the United Kingdom, he responded by e‑mail saying, among other things, "What they need is the actual dates of attendance on your letter.  The European authorities and universities are quite pedantic on records.  From our recollections Lisa and Stuart started at your school in February 2001 and finished in December 2002 when they left to France.  If at all possible if you could include these dates in your letter it would be most helpful."

24.	Then the director of admission at the school with whom he was in correspondence obliged by sending the letter in the amended form I have quoted, to which Mr Wilmot responded: "Thank you so very much for the letter with the detail that the European universities require.  Lisa and Stuart will now be able to complete their applications."

25.	It is perfectly clear to me that the school had no basis for saying that the two children were at the school from February 2001 to December 2002 other than Mr Wilmot's own assertion, and he had no basis for asserting that, so far as I can see, other than that it would suit his case.

26.	Ms Maughan chased the school to clarify how this misleading letter was written, and she obtained the e‑mail sequence that I have cited.  She also had an apology from the school on 18 March, which said no more than that Lisa and Stuart attended the Carmel campus from early September 2001 until late February 2002, and apologising for the confusion caused by previous communications which accidentally claimed incorrect dates.  It may have been accidental from the school's point of view, but it was clearly not accidental from Mr Wilmot's point of view.

27.	So those are the two pieces of evidence on which Mr Wilmot seeks to rely.  There is also a document that I should refer to which is a notice to admit facts, something which in one form or another was also referred to before Ryder J in February.  This was a document as to whose function in relation to family proceedings I have no idea of, and so far as I can see, nor had Ryder J.  In terms of the Civil Procedure Rules, rule 32.18 allows for the service of a notice to admit facts, but it has no effect unless an admission is actually made.  It is not open to the giver of the notice to say silence means admission, as Mr Wilmot sought to do, and the only effect of non‑admission is that it may have an effect on the incidence of costs if the facts have to be proved and are later proved in the face of the notice to admit.  It seems to me that that will be of no relevance at all to these proceedings, and rightly Mr Emanuel has not placed any reliance on that document other than as Mr Wilmot's view and summary of the factual matters that he would contend are in play.

28.	Going back therefore to the first matter, Mr Emanuel resisted Ms Maughan's application for the admission of evidence of the permission to appeal applications on the basis that Mr Wilmot had not had enough time to consider the new evidence or to see what evidence he might be able to produce in rebuttal, and he therefore invited me either to reject the evidence or to adjourn the hearing of these applications to allow him to respond.  It seemed to me appropriate to allow the evidence in having regard to the clear indications given by Thorpe LJ and Ryder J in February, and entirely inappropriate to adjourn yet further these applications for permission to appeal, which have been outstanding for months and been adjourned now for some five months and which need to be disposed of.

29.	The basis of Mr Wilmot's application is in itself the admission of new evidence on appeal in relation to the appeal against the 2007 order and ultimately the 2001 order.  There is a discrete issue that I will come to about the DNA testing as regards the February 2013 order.

30.	Mr Wilmot has been contending for years that the paternity declaration in relation to Ellen in 2000 was not reliable and should be set aside because, he says, two samples were switched.  He has been contending that Ms Maughan has been lying and fabricating evidence and withholding material for years.  Strictly speaking, the matter would depend on the traditional Ladd v Marshall tests and I would focus on two of those: one is how credible the evidence is; and the other is the question of whether the evidence could have been produced earlier.  It is of course fair to say that the evidence, could not, I dare say, have been produced at the time of the original hearing before District Judge White, but given that we are now almost 12 years on from that, and that there have been any number of proceedings in the meantime, the question is whether the evidence could have been produced at earlier stage than it was.  As to that, Mr Emanuel tells me that the evidence from the school could only have been obtained from a date in early 2012 because that was the first stage at which Mr Wilmot knew the identity of the relevant school.  That is interesting in considering what he represented to the school.  But I think the critical point is the substance and weight of these two pieces of evidence in the light of the answers that have been put in for Ms Maughan.  

31.	It seems to me that Mr Wilmot’s evidence to the effect that he was not in Germany immediately after the birth of Ellen is simply not such as can carry any weight on appeal, in the face of the evidence put forward by Ms Maughan.  So far as the evidence of the school is concerned, since the statement from the school, which is the only matter on which Mr Wilmot can rely, was produced as a result of a very highly leading (and misleading) question to the school, in circumstances in which, so far as one can see, the school has no independent records ‑‑ at any rate, if it has any independent records it did not use them to verify the statement before it was issued ‑‑ that is of no weight either.  In those circumstances it seems to me that it would be quite wrong to give permission to appeal in relation to appeals 146 and 147 on the basis of this limited and fragile additional evidence.

32.	As I said, there is one separate aspect to appeal 1551, but otherwise appeal 1551 stands or falls with 146 and 147, as Mr Emanuel accepted.  The one separate matter is this: as I said, in February there was a discussion of DNA testing.  Ryder J did not make any order in that respect, but he did record what he understood to be an agreed position.  From having read the transcript of the hearing before him, it seems to me that it was an agreed position, although one which, when Mr Wilmot had gone away from the hearing, he either remembered differently or at any rate it became transmuted in his memory to a different form.  What Mr Emanuel submits to me is that if there is to be DNA testing with a view to ascertaining whether Mr Wilmot is or is not Ellen's father, it must be on the footing that it is at least theoretically possible that he is not and will be shown not to be, in which case what happens, he says forensically, if the other appeals have been dismissed and so orders made on the footing that she was Mr Wilmot's daughter are then subsisting without any outstanding appeal?

33.	Mr Swift's answer to that is the pragmatic answer that it will not happen.  That is not a complete answer.  However, as it seems to me, as I have mentioned, there is no order with regard to testing in the 27 February order, or indeed in any other order.  It may be, and plainly Ryder J thought it desirable, if the parties wished, that there should be further tests because the samples which were used in the 2000 tests have been long since destroyed.  But there is no appeal against any order about DNA testing because there was no order about DNA testing.  Accordingly it seems to me that it would be wrong to keep the 1551 appeal alive for the purpose of challenging something which is not the subject of an order.  That being so, I can see no purpose in keeping either of the other appeals alive for that or any other related purpose.

34.	For those reasons, I propose to dismiss the applications for permission to appeal and I propose to say that despite the able submissions addressed to me both in writing and orally, succinctly and cogently by Mr Emanuel, it seems to me that each of these applications was one that was totally without merit. 

Order: Application refused