Elliott v Elliott [2000] EWCA Civ 407_2 (20 December 2000)

Neutral Citation Number: [2000] EWCA Civ 407_2 B1/2000/3185 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE SOUTHEND COUNTY COURT (His Honour Judge Yelton) The Royal Courts of Justice The Strand London WC2A 20 December 2000 B e f o r e : LORD JUSTICE THORPE LORD JUSTICE JONATHAN PARKER ____________________ Between: ALAN EDWARD ELLIOTT Petitioner/Appellant and: JANET EILEEN ELLIOTT Respondent/Respondent ____________________ Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 190 Fleet Street, London EC4A 2HD Tel: 020 7421 4040 Official Shorthandwriters to the Court ____________________ The Appellant appeared on his own behalf MS S WICKINS (instructed by Harvey Copping Harrison, De Burgh House, Market Road, Wickford, Essex) appeared on behalf of the Respondent ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE THORPE: At the outset of this appeal the husband seeks permission to introduce fresh evidence. The case in the court below proceeded on the basis that if the final matrimonial home were sold, the wife would need about £95,000 to rehouse herself and the children in a three-bedroomed house in Wickford. The point that the husband now seeks to introduce evidentially is that a similar property in Basildon might be bought for only £55,000. This, he says, puts a completely different complexion on the wife's needs. The response from Miss Wickins for the wife is perfectly predictable. She said, first of all, that it was perfectly open to the husband to adduce this evidence at the trial before the district judge on 10 August 2000; alternatively at the trial before the circuit judge on 27 September 2000. Furthermore, she points to the fact that the adjudication before the circuit judge proceeded on an agreed basis, and she draws attention to page 344 of the bundle where, in his written submissions, the husband said: "All parties including the judge agreed that the price of the 3 bedroomed house needed would be approximately £95,000." Whilst I appreciate that the rule in Ladd v Marshall is not applied with rigour in family appeals, nonetheless there have to be some bounds put on the area of investigation that is appropriate for an appellate court. I have reached the conclusion that it would be simply unprincipled to allow the husband to reopen the whole area of the wife's housing needs, one of the most fundamental areas in the case, when the issue has been determined in the court below, not only on an evidential basis, but also on the basis of agreement from which it would, in my opinion, be improper to allow the parties to resile. So, for my part, I would refuse the application to adduce fresh evidence. MR JUSTICE JONATHAN PARKER: I agree. ORDER: Application refused BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII