username

password

Hind Court1 Garden CourtDNA LegalHarcourt ChambersGarden Courtimage of 4 Paper Buildings logoCoram Chamberssite by Zehuti

Home > Judgments > 2009 archive

Baker v Rowe [2009] EWCA Civ 1162

Application, by intervenor in ancillary relief proceedings, for permission to appeal costs order with appeal to follow. Application allowed but appeal dismissed.

The costs arose from the intervention of a daughter of the couple and her now separated husband (“the son in law”) in their parents divorce. In 1989, the divorcing couple had taken advantage of  a right to buy on the family home but could not afford the payments so the daughter and son in law paid instead. This arrangement last six years before the daughter and son in law separated in 1995 since when the daughter paid the mortgage on her own. In the ensuing ancillary relief proceedings, the daughter intervened to establish that the husband had occupation rights but that she was the beneficial owner while the son in law separately claimed that he had a share of that interest. The judge ruled in the daughter’s favour and also concluded that the costs arising from the interventions by her and the son in law did not fall under the general rule in ancillary relief and so made a costs order against the son in law. On appeal the circuit judge agreed with the district judge as the district judge had been thrown back on to the CPD costs rules as the interventions were under TOLATA.

The key issues before the Court of Appeal then, after deciding that the second appeal was meritorious, was whether the claims of the interveners could be subject to the general rule in ancillary relief proceedings. Wilson LJ, giving the lead judgment, dismisses the appeal primarily because the proceedings were in connection with ancillary relief proceedings but were not for ancillary relief.

__________

Neutral Citation Number: [2009] EWCA Civ 1162

Case No: B4/2009/0322
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRURO COUNTY COURT
HIS HONOUR JUDGE VINCENT
LOWER COURT NO: TR08D00171
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/11/2009
Before:

LORD JUSTICE WARD
LORD JUSTICE WILSON
and
LORD JUSTICE LEVESON

Between:

WILLIAM BAKER (Appellant)

- and - 

PAULINE JESSIE ROWE (Respondent)

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)


Mr Andrew Worthley (instructed by CVC Solicitors, Penzance) appeared for the Appellant.
Miss Daisy Brown (instructed by Coodes, St Austell) appeared for the Respondent.

Hearing date: 20 October 2009

Judgment
As Approved by the Court
Crown copyright©

Lord Justice Wilson: 
1. We have to unravel a tangled situation in relation to orders for costs as between interveners in proceedings for ancillary relief following divorce.

2. There are four protagonists. The first two are Mrs Wood and Mr Wood. They are now aged 98 and 99 respectively. They were married in 1972 and Mrs Wood issued a petition for divorce in 2008. Although the decree nisi granted to her has probably now been made absolute, it will be convenient for me to call Mrs Wood “the wife” and Mr Wood “the husband”. The third protagonist is Mrs Rowe. She is the daughter of the wife by a marriage prior to her marriage to the husband. Although therefore Mrs Rowe is not the husband’s daughter, it will be convenient to describe her as “the daughter”. The fourth protagonist is Mr Baker. He was married to the daughter between 1988 and 1996. Although therefore Mr Baker was never the son-in-law of the husband and although his divorce from the daughter means that he is no longer the son-in-law even of the wife, it will be convenient to describe him as “the son-in-law”.

3. The son-in-law applies for permission to appeal against an order made by His Honour Judge Vincent in the Truro County Court on 22 January 2009. The hearing of his application was arranged as a hearing on notice to the daughter and on the basis that, were permission granted, the substantive appeal would be determined forthwith. Neither the wife nor the husband takes any part in the proceedings in this court.

4. Subject to errors on his part to which I will refer in [5] below, I can broadly say that on 22 January 2009 the circuit judge determined an appeal brought by the son-in-law against an order for costs made against him in favour of the daughter by District Judge Mitchell on 19 November 2008 following the intervention of each of them in proceedings for ancillary relief between the wife and the husband. Subject to those same errors, I can broadly say that the circuit judge dismissed the son-in-law’s appeal. The son-in-law aspires to appeal to this court against the dismissal of his appeal.

5. The errors to which I have referred arises from the conjunction of:

(a) the circuit judge’s statement that the son-in-law needed permission to appeal to him;
(b) the circuit judge’s observation that, had he considered the issue of permission to appeal as a discrete matter, he would have granted it; and
(c) the circuit judge’s orders, both as announced at the end of his judgment and as drawn, to the effect not only that the appeal should be dismissed but also that the application for permission to appeal to him should be refused.

6. A curiosity arising out of [5](b) and (c) above is that, although the circuit judge considered that permission to appeal to him was required and would have been granted if it had been considered as a discrete matter, his ultimate order was to refuse permission as well as to dismiss the appeal: for of course the same criteria for the grant of permission apply irrespective of whether the application for it is made separately or, as today, at a hearing at which the substance of the proposed appeal would also fall to be considered in the event that permission were granted. In this court we frequently grant permission to appeal and then, at the same composite hearing, proceed to dismiss the appeal. I will propose that very course at the end of this judgment.

7. But the major question-mark in this area is against the circuit judge’s statement, recorded at [5](a) above, that the son-in-law needed permission to appeal to him. In the skeleton arguments filed for the use of the circuit judge counsel for the daughter did not contend (nor did counsel for the son-in-law concede) that permission to appeal was required; and I am unclear how the circuit judge came to make his unexplained statement that the son-in-law needed permission to appeal to him, notice of which had been filed in time. Rule 8.1(1) of the Family Proceedings Rules 1991 (“the Rules of 1991”) provides that any party may – i.e. without permission – appeal from an order or decision made or given by the district judge “in family proceedings” in a county court to a circuit judge on notice. Although para. (1) is subject to an exception where para. (2) of the rule applies, namely, for present purposes, in the case of an order “on an application for ancillary relief”, the effect of the exception is not to deprive a party of the ability to appeal against an order “on an application for ancillary relief” without permission; the exception has a different effect to which it is unnecessary to refer. Thus, irrespective of whether the district judge’s order for costs between the daughter and the son-in-law is properly to be described as “on an application for ancillary relief” within the meaning of para. (2), no permission to appeal is presently required for an appeal from it provided that it was made “in family proceedings”.

8. Miss Brown, who appeared for the daughter in both courts below and who appears for her in this court albeit now pro bono, seeks to defend the circuit judge’s statement that the son-in-law needed permission to appeal to him. Her argument therefore has to be that the proceedings before the district judge were not family proceedings, with the result that permission was required under Rule 52.3(1) of the Civil Procedure Rules 1998 (“the Rules of 1998”). She argues that:

(a) the claims of the daughter and the son-in-law before the district judge were made under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”);
(b) claims under TOLATA are not family proceedings but, instead, are assigned to the Chancery Division under s.61(1) of, and Schedule 1 to, the Supreme Court Act 1981;
(c) had the issue between the daughter and the son-in-law proceeded in the High Court, rather than the county court, it would have been assigned to the Chancery Division; and
(d) insofar as at the hearing in November 2008 the district judge was also, albeit quickly and by consent, making a conclusive determination of the wife’s claim for ancillary relief against the husband, the proceedings before him were partly family proceedings and partly non-family proceedings.

9. I am clear that Miss Brown’s arguments at [8](a), (c) and (d) above are invalid. Section 14 of TOLATA provides only a vehicle which may be used for the assertion of a beneficial interest in property. In some circumstances other vehicles may be available: for example, for spouses, s.17 of the Married Women’s Property Act 1882. In this case a third vehicle was available and was properly used instead of TOLATA. For the property in which the daughter and son-in-law wished to assert a beneficial interest was already the subject of proceedings for ancillary relief in family proceedings; and they were allowed to become parties to those proceedings in order to make their claims within them. For reasons to which I will advert in [23] below, the family proceedings were clearly the appropriate vehicle for them to use in making their claims. The nature of their claims did not cause the proceedings at any time to cease to be family proceedings; nor to become partly family proceedings and partly non-family proceedings.

10. The circuit judge’s error that the son-in-law needed permission to appeal to him and the eccentricity of his ultimate purported refusal of permission have led to confusion about whether it is open to the son-in-law to appeal to this court. For s.54(4) of the Access to Justice Act 1999 (“the Act of 1999”) provides, generally, that no appeal may be made against a decision of a court to refuse permission to appeal. Nor is there inherent power in this court to bypass the prohibition in the subsection against hearing an appeal from a refusal of permission: Riniker v. University College London (Practice Note) [2001] 1 WLR 13. Had I been of the view that the son-in-law needed permission to appeal to the circuit judge, it is possible, in the light of the circuit judge’s comment that, had he considered the issue of permission as a discrete matter, he would have granted it, that I would have suggested that we should proceed on the basis that his later purported refusal of permission was a slip and that he should be taken instead to have granted permission, albeit followed of course by his dismissal of the appeal. That would have resolved the problem presented by s.54(4) of the Act of 1999. As it is, however, the circuit judge’s purported refusal of permission is best treated simply as a nullity.

11. Nevertheless, notwithstanding clarification of that particular area of erstwhile confusion, the fact remains that the son-in-law’s proposed appeal to this court would be a second appeal and that, in accordance with s.55(1) of the Act of 1999 and Rule 52.13(2) of the the Rules of 1998, we cannot give permission unless we consider that the appeal would raise an important point of principle or practice or that there is some other compelling reason for us to hear it.

12. In 1976 the wife and the husband moved together to live at 3 Marlborough Grove, Falmouth (“the property”). It was a council house and the wife appears to have become the sole tenant of it. They both continued to live there until very recently. In 1989 the wife exercised her right to buy the property. The purchase was taken in the name of herself and the husband jointly. Although the property was valued on the open market at £57,000, the price was £22,000. They raised the price on mortgage. Their purchase of the property was arranged in conjunction with the daughter and, to some extent, also with the son-in-law, who were of course at that time married and were living together. The daughter and the son-in-law guaranteed the obligations of the wife and the husband under the mortgage. Indeed it seems then to have been anticipated on all sides that, as proved to be the case, the wife and the husband would not have the means with which to discharge the mortgage instalments. Instead, until 1995, they were discharged out of a joint account of the daughter and son-in-law; and, following her separation from the son-in-law in 1995, the daughter discharged them alone. In 2000 she redeemed the mortgage by applying compensation which she had received in respect of an injury.

13. On the day following their acquisition of the property the husband and the wife made wills under which they left their interest in the property to the survivor of them and, on the survivor’s death, to the daughter. In 1995 they executed a declaration of trust to the effect that they held the property beneficially for the daughter.

14. In the divorce proceedings in 2008 between the wife and the husband, the wife applied for ancillary relief and, in particular, for orders which would determine the future ownership and occupation of the property. On 23 June 2008 the district judge gave a series of directions. Before him appeared solicitors not only for the wife and for the husband but also for the daughter and for the son-in-law. The daughter and the son-in-law each sought to intervene in the proceedings for ancillary relief in order to assert that they each had beneficial interests in the property. They both, however, made clear that they did not assert that their alleged interests therein were such as to affect the rights of the wife and/or of the husband to occupy the property indefinitely. On the basis that the wife and the husband would make applications under the Family Law Act 1996 for occupation orders referable to the property, in order in effect to determine whether the wife or the husband should be the future sole occupant thereof, the district judge gave permission to the daughter and the son-in-law to intervene in the proceedings in order “to seek declarations regarding the beneficial interests in the said property”. The applications under the Act of 1996 were duly made and resulted in an order that it should be the husband, rather than the wife, who should have the sole right to occupy the property for life or for as long as he wished to do so. We understand therefore that it is the husband who is presently in occupation thereof and that the wife has moved elsewhere.

15. By the time of the substantive hearing before the district judge on 18 and 19 November 2008 there were, in effect, no remaining issues between the wife and the husband. Their solicitors appeared before the district judge solely in order jointly to invite him to make the conventional provisions in order to achieve a clean break between them. The only substantive issue before the district judge was whether, as the daughter contended, she was the sole beneficial owner of the property subject to the husband’s rights of occupation or whether, as the son-in-law contended, he also had some beneficial interest in the property subject to those rights. The son-in-law’s principal argument was based upon the discharge between 1989 and 1995 of the mortgage instalments referable to the property out of the account held jointly by him and the daughter. The wife was called on behalf of the daughter to give oral evidence in support of her claim; but the husband, who appears to have given a statement in support of the son-in-law’s claim, did not give oral evidence. In the event the district judge found that the son-in-law had indeed indirectly contributed to the discharge of the mortgage instalments during those six years; but that, from the date of purchase of the property, it had been their common intention that the daughter should have the entire beneficial interest in it and that the son-in-law should have no interest in it; and indeed, in any event, that in 1996, upon the divorce between them, the son-in-law had specifically agreed with the daughter that he would make no claim in respect of the property in consideration of her agreement to make no claim in respect of another property which belonged to him. It was for those reasons that the district judge ruled that, subject to the husband’s rights of occupation, the sole beneficial owner of the property was the daughter.

16. We have a transcript of the discussion before the district judge referable to the application then made on behalf of the daughter for an order for costs against the son-in-law. In that the wife’s petition for divorce had been filed after 3 April 2006, the district judge raised with counsel for both parties whether the general rule set out in Rule 2.71(4)(a) of the Rules of 1991 applied. It provides:

“The general rule in ancillary relief proceedings is that the court will not make an order requiring one party to pay the costs of another party …”

In the event, having raised the question, the district judge expressed himself satisfied that the general rule did not apply to the issue of costs between the daughter and the son-in-law; nor had counsel then appearing for the son-in-law suggested that it did apply. In those circumstances the district judge proceeded to make an order for costs in favour of the daughter against the son-in-law.

17. Notwithstanding energetic submissions on behalf of the son-in-law to the circuit judge on the appeal, advanced by Mr Worthley who had not appeared for him before the district judge, the circuit judge held that the district judge had been correct not to apply the general rule in Rule 2.71(4)(a) of the Rules of 1991; that, had the issue between the daughter and the son-in-law not been determined in the context of the proceedings for ancillary relief, it would have been determined in a free-standing application under TOLATA; and that the district judge had been “thrown back on the Civil Procedure Rules and general principles of costs in deciding what to do”. Far from concluding that the district judge had been plainly wrong in the exercise of his discretion, the circuit judge concluded that he had been right.

18. It is unclear whether, by observing that the district judge had been thrown back on the Rules of 1998, the circuit judge was holding that he had been thrown back even upon the general rule set out in Rule 44.3(2)(a) thereof that “the unsuccessful party will be ordered to pay the costs of the successful party”. If so, the question arises whether he was correct so to hold; for that subparagraph is placed in a category of its own by Rule 10.27(1)(b) of the Rules of 1991. But the prior question is, of course, whether the district judge had before him “ancillary relief proceedings” for the purposes of the engagement of Rule 2.71(4)(a) of the Rules of 1991.

19. In Judge v Judge [2008] EWCA Civ 1458, [2009] 1 FLR 1287, this court dismissed a wife’s appeal against a judge’s refusal of her application for an order setting aside a previous order for ancillary relief in her favour, being an application founded upon her assertion that the order had been vitiated by mistake or non-disclosure on the part of the husband. It also dismissed her appeal against the judge’s order that she should pay one half of the husband’s costs of and incidental to her application to set aside. The question arose whether, in making his determination as to costs, the judge had been right to conclude, first, that the proceedings before him had not been “ancillary relief proceedings” within the meaning of Rule 2.71(4)(a) of the Rules of 1991 and, second, that, on the contrary, the general rule set out in Rule 44.3(2)(a) of the Rules of 1998, namely that the unsuccessful party will be ordered to pay the costs of the successful party, applied.

20.  In a judgment upon that question with which both of the other members of that court agreed, I said as follows:

“[50] [Before the judge] Mr Turner [on behalf of the wife] invoked Rule 2.71(4)(a) of the Family Proceedings Rules 1991, which provides that “the general rule in ancillary relief proceedings is that the court will not make an order requiring one party to pay the costs of another party”. Mr Seabrook [on behalf of the husband], on the other hand, invoked Rule 44.3(2)(a) of the Civil Procedure Rules 1998, which provides that “the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”. Counsel’s invocations could not both be valid. So which was valid? Or was neither valid?

[51] In my view the judge was right to reject Mr Turner’s argument. Rule 2.71(4) of the Rules of 1991 applies to “ancillary relief proceedings”. Of course, as Mr Turner stresses, the wife’s aspiration, following any setting aside of the orders made in 2001, was again to proceed with her application for ancillary relief. But her application for an order setting those orders aside was not itself an application for ancillary relief, as defined in Rule 1.2(1) of the Rules of 1991. So, although the proceedings before the judge were in connection with ancillary relief, they were not for ancillary relief. I would have been willing to give the phrase “ancillary relief proceedings” in Rule 2.71(4) a wide, purposive construction so as to include proceedings in connection with ancillary relief as well as for ancillary relief if my view had been that such would better reflect the rule-makers’ purpose. But such is not my view. The general rule in Rule 2.71(4)(a) is only a concomitant of the modern approach in applications for ancillary relief that the sum owed by each party in respect of his own costs will be treated as his liability for the purposes of calculating the substantive award.

[52] The judge considered that, if Mr Turner was wrong, it followed that Mr Seabrook was right. With respect, I do not agree. Rule 10.27(1)(b) of the Rules of 1991 provides that Rule 44.3(2) of the Rules of 1998 shall not apply to “family proceedings”. Contrary to the submissions of Mr Seabrook, I have no doubt that, although they were not “ancillary relief proceedings”, the proceedings before the judge were “family proceedings” within the meaning of Rule 1.2(1) of the Rules of 1991 and of s.32 of the Matrimonial and Family Proceedings Act 1984 in that they constituted a matrimonial matter within the meaning of paragraph 3(a) of Schedule 1 to the Supreme Court Act 1981.

[53] Thus there was no “general rule” in either direction for the judge to apply to his decision. He had before him a clean sheet; but by reference to the facts of the case, and in particular, the wife’s responsibility for the generation of the costs of a failed application, he remained perfectly entitled to record upon it, as he did, that he would start from the position that the husband was entitled to his costs.

[54] The judge moved from that position for two reasons…”

21. It will be seen that in [51] of that judgment I referred to the rule-makers’ purpose and suggested that the general rule in ancillary relief proceedings, as introduced in 2006 by amendment of the Rules of 1991, was only a concomitant of the modern approach in applications for ancillary relief that the sum owed by each party in respect of costs would be treated as that party’s liability for the purpose of calculating the substantive award. Miss Brown helpfully draws our attention to a consultation paper entitled “Costs in Ancillary Relief Proceedings and Appeals in Family Proceedings”, No. CP(L) 29/04, issued in October 2004 by the Department for Constitutional Affairs. This was the paper by which the department consulted upon the proposed change of rule in favour of making no order for costs in ancillary relief proceedings; and, although the draft rule appended to the paper was somewhat altered prior to the ultimate insertion of Rule 2.71 into the Rules of 1991, the alterations are not material. In retrospect I wish that I had bolstered [51] of my judgment in Judge v Judge by reference to two passages in the consultation paper. Happily I have an opportunity in effect to bolster it today.

22. In paragraph 22 of the paper the department identified the first of three significant problems which had been identified in connection with the principles then applicable to orders for costs in ancillary relief proceedings. It described the first problem as follows:

“The first is the destabilising effect that costs can have on financial settlements that have been carefully constructed by the court. Having considered the facts and circumstances of a case the court arrives at a settlement that, in its judgment, does justice between the parties. At the conclusion of some cases it is revealed to the court that one party has failed to ‘beat’ a Calderbank offer. A Calderbank offer is a written offer from one party to the other to settle all matters in dispute on a “without prejudice except as to costs” basis. The consequences of failing to exceed a Calderbank offer can undermine completely the substantive order for ancillary relief that the court has just made.”

Later, in paragraph 27, the department stated:

“The purpose of applying a ‘no order for costs’ principle in ancillary relief proceedings is to stress to the parties, and to their legal advisers, that running up costs in litigation will serve only to reduce the resources that the parties will have left to support them in their new lives apart. The proposed amendments to the costs rules are designed to establish the principle that, in the absence of litigation misconduct, the normal approach of the court to costs in ancillary relief proceedings should be to treat them as part of the parties’ reasonable financial needs and liabilities. Costs will have to be paid from the matrimonial ‘pot’ and the court will then divide the remainder between the parties.”

23. To cases like Judge v Judge, and, a fortiori, to cases such as the present, it makes no sense to apply the new general rule in ancillary relief proceedings. For in the present case it cannot, of course, be said that to make an order for costs against the son-in-law would destabilise financial arrangements made by the district judge as part of his substantive determination; nor that the costs of the daughter and of the son-in-law had already been taken into account by the district judge, whether as their “needs”, their “liabilities” or otherwise; nor that allowance for their respective costs had already been made by him out of any pot, whether matrimonial or otherwise. As in Judge v Judge, so here: the clear purpose behind Rule 2.71(4)(a) of the Rules of 1991 requires its unfocussed reference  to “ancillary relief proceedings” to be construed narrowly; and the proceedings before the district judge, as they ultimately developed, were in connection with ancillary relief but not for ancillary relief. Specifically, and as identified in the order by which the district judge permitted the daughter and the son-in-law to intervene, they were proceedings for rival declarations regarding the beneficial interests in the property. Ever since the decision of this court in Tebbutt v Haynes [1981] 2 All ER 238, it has been recognised as convenient that a third person who asserts a beneficial interest in property which is the subject of an application for ancillary relief following divorce should either be permitted as an intervener, or ordered as a further respondent, to make his assertion within, and thus as a party to, the application, rather than that the existence or otherwise of his alleged interest be determined in separate proceedings in a separate court at a separate time, with the consequential risk of inconsistent decisions. It would be highly unfortunate, as well as unprincipled, if such a person, when joined as an intervener or as a respondent only for convenience, were to find that, even were his assertion successful, a general rule against making any order for costs inter partes would operate against him.

24. Thus, as in Judge v Judge, my conclusion is that the general rule in ancillary relief proceedings, set out in Rule 2.71(4)(a) of the Rules of 1991, did not apply to the issue of costs between the daughter and the son-in-law: for the proceedings were not “ancillary relief proceedings” for the purpose of that rule. Equally, however, the general rule that the unsuccessful party will be ordered to pay the costs of the successful party, set out in Rule 44.3(2)(a) of the Rules of 1998, was also inapplicable: for the proceedings were family proceedings, with the result that, by Rule 10.27(1)(b) of the Rules of 1991, that general rule was disapplied. There is nothing to indicate that the district judge purported to apply the general rule in Rule 44.3(2)(a) but, if and insofar as the circuit judge considered that that general rule was applicable, he was in error. The true position is that, as in Judge v. Judge, there was no general rule in either direction for the district judge to apply to his decision and that he therefore had before him a clean sheet.
 
25. The problem for Mr Worthley on this appeal is that the district judge remained entitled to pay substantial regard to the fact that the daughter’s assertions had prevailed; that the son-in-law’s assertions had not prevailed; and perhaps in particular, that in 1996 they had both expressly agreed that he would not assert any claim to the property, including obviously any claim to an existing beneficial interest in it. Mr Worthley fights a valiant rear-guard action. He submits that these facts amount to no more than that the son-in-law was the unsuccessful party; and that, in that the general rule in Rule 44.3(2)(a) of the Rules of 1998 in favour of making an order for costs against the unsuccessful party did not apply, more was needed before an order for costs could be made against him. I disagree. Even where the judge starts with a clean sheet, the fact that one party has been unsuccessful, and must therefore usually be regarded as responsible for the generation of the successful party’s costs, will often properly count as the decisive factor in the exercise of the judge’s discretion. I am also sympathetic to Miss Brown’s point, alternative to her main submissions, that, had the claims of the daughter and son-in-law been brought under TOLATA, the general rule in Rule 44.3(2)(a) would have applied. The daughter did not need that point; but in my view it would not have been irrelevant to the exercise of the discretion.

26. In my view, therefore, there was nothing for the district judge to write on his sheet other than potent reasons why the son-in-law should pay the daughter’s costs. I should add that, unlike the daughter, the son-in-law was publicly funded before the district judge, and indeed has somehow managed to remain publicly funded both before the circuit judge and before this court. But the general protection for publicly funded parties against orders for costs afforded by s.11(1) of the Act of 1999 does not apply to those in receipt of legal representation in family proceedings: see Regulation 3(1)(e) of the Community Legal Service (Cost Protection) Regulations 2000, SI 2000/824, as amended, and para.21.7(4) of the Practice Direction appended to Part 44 of the Rules of 1998. The district judge’s order is unimpeachable.

27. Albeit perhaps only by a narrow margin, the son-in-law’s appeal to this court in my view qualifies as an appeal which raises an important point of principle or practice. Accordingly my proposal is that we should grant permission for his appeal but should then proceed to dismiss it.

Lord Justice Leveson:
28. I agree.

Lord Justice Ward:
29. I agree and add these few words only because I was responsible for adding to the technical confusion inherent in the process of appealing orders made in family proceedings.  Having at first taken the view that, by virtue of section 54(4) of the Access to Justice Act 1999, this Court had no jurisdiction to entertain an appeal against an order made by the judge below in a second appeal refusing permission for that second appeal, bells then began belatedly to ring that family proceedings were differently treated and so I withdrew the order made by myself and Rix L.J. and gave directions for the matter to come before us as it has done on notice to the respondent. 

30. It all depends on whether the proceedings with which we are concerned are family proceedings to which rule 8.1 of the Family Proceedings Rules 1991 apply.  If rule 8.1 applies, it allows a party to appeal from an order made by the district judge in family proceedings in a county court without the need for permission being granted to launch that appeal.  One could say it is an appeal as of right.  Consequently His Honour Judge Vincent had no need to consider whether to not grant permission to appeal and his refusal to grant it could not be the bar to this Court which is set by section 54(4) of the Access to Justice Act 1999.  So the first question is whether or not these were family proceedings. 

31. Miss Daisy Brown, for the respondent, has led us on a complicated paper chase to find the answer.  Pursuant to rule 1.2 of the FPR “family proceedings” is given the same meaning as in section 32 of the Matrimonial and Family Proceedings Act 1984.  That defines “family proceedings” as proceedings which are “family business”.  Family business is defined as business of a description which in the High Court is for the time being assigned to the Family Division and to no other Division by or under section 61 of and schedule 1 to the Senior Courts Act 1981.  Schedule 1 lists matters which are assigned to the Family Division including “all matrimonial causes and matters”.  Matters relating to trusts and land are, however, assigned to the Chancery Division.

32. The ancillary relief proceedings between husband and wife are quite clearly family business in that they relate to matrimonial causes and matters, family ancillary relief being defined in section 1.2 of the FPR to mean the various orders which can be made under the Matrimonial Causes Act 1973.  On the other hand were the proceedings between daughter and son-in-law to have been separately and discretely issued, they would undoubtedly have been brought under the Trusts of Land and Appointment of Trustees Act 1966 (“TOLATA”).  They were, however, not separately instituted.  These parties intervened and rightly intervened in the family proceedings constituted by the claims for ancillary relief between husband and wife.  The claims between husband and wife did not cease to be family proceedings when husband and wife compromised the ancillary relief claims.  Those proceedings continued until the order was made disposing of them.  That order was in fact made at the conclusion not only of the ancillary relief claim but the claims for declarations as to the beneficial interests in the property concerned.  That order was all inclusive.  It was to this effect:

“In the Truro County Court …

The marriage of Jessie Wood and Bertie Leonard Wood

Before District Judge Mitchell sitting at Truro County Court …

Upon hearing the solicitors for the applicant and respondent and counsel for the first and second interveners

IT IS ORDERED THAT

1.  By consent of Mr Bertie Wood and Mrs Jessie Wood Mr and Mrs Wood shall convey the legal interest in the property 3 Marlborough Grove, Falmouth to Mrs Pauline Rowe …

2.  It is declared that Mrs Pauline Rowe is the sole beneficial owner of 3 Marlborough Grove, Falmouth, subject to Mr Wood’s right of occupation as set out in previous orders.

3.  Mr William Baker’s application for a declaration that he has an interest in 3 Marlborough Grove is refused.

4.  Mr and Mrs Wood’s claims for financial provision pension sharing and property adjustment do stand dismissed …”

33. Consequently I take the view that the only proceedings in which the interveners in fact intervened and the only proceedings in which they continued to litigate, were those family proceedings in which they had become embroiled.  There were no free-standing TOLATA proceedings which could separately and discretely be characterised as civil proceedings to which CPR 52 applied.  The governing rule regulating an appeal from that decision was, in my judgment, FPR 8.1. 

34. As such, for the reasons I have set out, no permission to appeal was necessary.  This Court can entertain the appeal if we think it right to grant permission to appeal.

35. For the reasons given by my Lord I would grant that permission but for the reasons he has given, I would then dismiss the appeal.  The rule established by CPR 44.3(2) that costs follow the event does not apply to family proceedings: it is excluded by FPR 10.27.  FPR 2.71 does not apply.  The orders might well have been made in ancillary relief proceedings but they were not orders for  nor even in connection with ancillary relief.  The rule must be construed purposively as my Lord explained in Judge v Judge and in his judgment above.  Proceedings between interveners do not come within the ambit of the rule.  In the result, costs do not follow the event.  The judge making the costs order has, therefore, a wide discretion.  He could not properly ignore the fact that one side had won and the other had lost but that is not determinative nor even his starting point.  It is simply a fact to weigh but in the circumstances of this case it is a fact of overwhelming weight.  The only proper order to make is that Mr Baker pay Mrs Rowe’s costs.