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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 >> Downing v Lissimore [2002] EWCA Civ 1698 (6 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1698.html Cite as: [2002] EWCA Civ 1698

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
BIRMINGHAM COUNTY COURT
(MR RECORDER MCFARLANE)

		Royal Courts of Justice Strand London, WC2 Wednesday, 6th November 2002

1. LORD JUSTICE THORPE: Mr Kenneth Downing seeks permission to appeal an order made by Mr Recorder McFarlane QC sitting in the Birmingham County Court on 3rd May 2002. The respondent to the application, which is listed today without notice, is Sarah Lissimore. She and Mr Downing have lived together for a period of about eight years and their home of cohabitation has been a grand property called Astbury Hall. She initiated litigation on 13^th February 2002, claiming that she had equitable entitlement to an interest in the property. His counterattack of 15^th March was an application under the 1996 Act, Part 4, to get her out. That application failed before the learned Recorder.
2. Notice of application for permission was filed in this court on 30^th May, but, owing to delay in getting a transcript of judgment, was not ready for consideration on paper until the beginning of September.
3. On the 17^th, I provisionally refused the application, saying that, although it was extremely skilfully presented, the judge, in exercising his statutory discretion, had proper regard to the considerations to which the sections directed him and reached a conclusion which could not be said to be plainly wrong.
4. Mr Duckworth has exercised his right to an oral hearing, and, in preparation for it, has very helpfully filed an updated skeleton of 30^th November, which makes plain that the trial of Miss Lissimore's claim for an equitable interest (which had been provisionally fixed for the autumn) has now gone over to February 2003. However, Mr Duckworth has mounted a strike-out application, which is fixed for hearing on 4th December.
5. Mr Duckworth has argued his application this morning with his customary skill and learning, but he has not persuaded me that the view that I expressed on paper requires any revision.
6. The relevant statutory provision is subsection (6) of section 33 of the 1996 Act. It requires the court to have regard to four specific criteria in exercising its discretion whether or not to make an occupation order.
7. We can see from the transcript of judgment that the learned Recorder had due regard to each of these criteria, commencing with the subsection (a) at paragraph 12, moving to subsection (b) at paragraph 16, subsection (c) at paragraph 17 and subsection (d) at paragraph 21. He concluded that the balance tipped against the applicant under three of those heads, although he found narrowly that the applicant was favoured by one of them. However, overall he said that he was not minded to make an order.
8. The reality is that there has to be a determination between this couple as to whether or not Miss Lissimore has any equitable interest and therefore any capital claim on Mr Downing. Until that issue is resolved, it seems to me a perfectly sustainable exercise of discretion to say that she should stay where she is. Of course Mr Downing was offering to provide her with alternative accommodation pending the trial of the primary issue. But the judge was perfectly entitled to have regard to the fact that it was at a considerably lower standard and that a move pending a final resolution would inevitably have some impact on Miss Lissimore's sense of wellbeing.
9. I simply cannot see that this is business for the Court of Appeal.
10. Mr Duckworth relies on subsequent developments. Well, those seem to me to be a better foundation for another application in the County Court than material to advance this application.
11. Obviously, if a strike-out application succeeds - and it is due for hearing in less than a month -- then there is a completely different situation and one in which Mr Downing will undoubtedly gain his goal of complete occupation. But I am in no doubt at all that my provisional view of this application was correct and I would confirm its dismissal.
12. LORD JUSTICE SCOTT BAKER: I agree.
13. LORD JUSTICE THORPE: Thank you very much, Mr Duckworth, as always.