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NLW v ARC [2012] EWHC 55 (Fam)

Judgment of Mostyn J dealing with the procedure to be used when applying for permission to appeal a financial consent order and offering guidance on the court’s powers when determining such an application.

The wife applied for permission to appeal a consent order in financial proceedings on the basis of undue influence and non-disclosure. Pursuant to the Family Procedure Rules 2010, the husband was directed not to attend the permission application. His solicitors wrote to the court stating that the husband would not attend but that it was "assumed" that no irrevocable orders would be made and permission to appeal would not be given in the husband's absence.

Mostyn J considered the new procedure in Part 30 FPR 2010, which he considered was intended to align the procedure for appeals from district judge to judge with the procedure under which an appeal from judge to the Court of Appeal takes place. His Lordship identified the only material difference as being that permission applications are considered at an oral hearing, rather than on paper.

Mostyn J further considered the options open to a judge at the permission hearing, which included granting permission, directing a further inter partes hearing and/or dismissing certain grounds, attaching conditions and dealing with fresh evidence. On the question of permission, the court must assess whether the appeal has a real prospect of success, which Mostyn J considered to mean the appeal is more likely to succeed than not.

In the instant case, Mostyn J granted permission and directed an inter partes hearing on the question of fresh evidence and a three day hearing of the appeal.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers

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Neutral Citation Number: [2012] EWHC 55 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
 Case No. FD09PO2476

Royal Courts of Justice
Date Friday, 13th January 2012

Before:

MR. JUSTICE MOSTYN
(In Private)
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B E T W E E N :

N. L. W. Applicant

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A. R. C Respondent

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Transcribed by BEVERLEY F. NUNNERY & CO
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MR. P CHAMBERLYNE QC (instructed by Charles Russell Ltd) appeared on behalf of the Applicant.

The Respondent was neither present nor represented.
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J U D G M E N T

MR. JUSTICE MOSTYN:
1 This is an application by NLW (whom I shall refer to as the wife even though she has been divorced from ARC for some time) for permission to appeal a consent order for what was then known as ancillary relief dated 1st December 2009.  Her appellant's notice, in which she seeks permission, is dated 8th December 2011.  In accordance with the Family Procedure Rules Part 30 the application for permission has been listed ex parte before me for determination. 

2 I have received a comprehensive skeleton argument and further note from Mr. Chamberlayne QC on behalf of the wife and I have also received a letter dated 6th January 2012 from the husband's solicitors, Birketts.  That letter reads in part as follows.

"In accordance with the recent decision of  Baron J in O v O, we have advised Mr. C that there is no need for him to attend the hearing on   13th January or to be represented at the same.  We do not intend any discourtesy to the court in not attending, but the notice of hearing expressly makes it clear that Mr. C's attendance is not required at that hearing.  It is for this reason alone that Mr. C will not be represented at that hearing.

We assume that the court will not make any irrevocable orders at that hearing, in particular it is suggested that it would be quite inappropriate for the court to grant leave to Mrs. C to appeal the consent order and/or to set aside the consent order dated 1st December 2009 when Mr. C has been directed not to be present at court."

3 The new procedure set out in Part 30 of the Family Procedure Rules 2010 is intended to align the procedure for appeals from district judge to judge with the procedure that has obtained since the year 2000 under CPR 52 in relation to appeals from judges to the Court of Appeal.  It is to be noted that under the CPR 52 procedure the appeal notice will be considered by a Lord Justice on paper first who may make a definitive determination, or he may make other dispositions to which I will refer in a moment.  I therefore agree with Mr. Chamberlayne that the letter on behalf of the husband dated 6th January 2012 appears to be based on the misconception that under the new procedure it would either be impossible or inappropriate on this ex parte hearing for this court to determine in a definitive way the application for permission to appeal.  Indeed, were that letter to be written to the Court of Appeal, if this application were to be proceeding at one level higher than it is, then it would in my opinion receive very short shrift indeed. 

4 The main difference procedurally between appeals from district judge to judge and appeals from judge to the Court of Appeal is that the application will not be considered in the first instance by a High Court judge on paper.  Resources are so limited that it is impossible to establish a dedicated secretariat within the Clerk of the Rules' office to deal with these appeals, nor is there time in the busy court lists of High Court judges to deal with swathes of paper applications for permission to appeal.  It is for this reason, and this reason alone, that applications for permission to appeal are listed ex parte before a High Court judge. In contrast, as I have pointed out,  if this were proceeding at one level further up, the application would be put on paper before a single Lord Justice.  That difference aside the procedure is identical, subject only to the further difference that the Court of Appeal has the opportunity at the first paper hearing to debar any application for the set-aside of a grant of leave on the basis that it would be totally without merit.  Those distinctions aside, the procedure is, as I say, identical. 

5 When considering an application which has been listed before a High Court judge ex parte, the High Court judge can do one of five things.  First, he can dismiss the application.  Second, he can order a further ex parte hearing.  That is only likely to be necessary if the appeal has been mounted by a litigant in person.  In such circumstances the first hearing may be used to get the paperwork, which is likely to be in an imperfect state, into good order and to identify issues so that a considered judgment can be given on a further ex parte hearing.  Third, the court can order an inter partes hearing of the application for permission.  Fourth, the court can order an inter partes hearing of the application for permission with the appeal proper to follow.  Fifth, the court can grant the application for permission.

6 Where there is more than one ground of appeal, the court may make a mixture of orders.  For example, it can dismiss some grounds; order others to be the subject of an inter partes hearing for permission; and can grant outright permission for others still.  Where the court grants permission, it can attach conditions to the grant of permission under rule 30.3(8)(b).  I take the view that an order for conditions could equally be made where the court makes an order under my fourth scenario, which is an order for an inter partes hearing of the permission application with appeal to follow if granted.  The court, when granting permission, may, just as in the Court of Appeal, deal with the question of fresh evidence under rule 30.12(2)(b) or it can direct a further directions appointment for the question of fresh evidence to be considered inter partes.

7 Having given that brief survey of the powers and procedures applicable to this application, I conclude that there is nothing to prevent this court, if it is a meritful application, granting permission to appeal.  The test on granting permission to appeal is set out in rule 30.3(7) and is this: permission to appeal may be given only where (a) the court considers the appeal would have a real prospect of success, or (b) there is some other compelling reason why the appeal should be heard. 

8 In his skeleton argument Mr. Chamberlayne has suggested that the object of the test is only to weed out the hopeless appeal.  I would not go that far.  I would suggest that the concept of a real prospect of success must mean, generally speaking,  that it is incumbent on an appellant to demonstrate that it is more likely than not that the appeal will be allowed at the substantive hearing.  Anything less than a fifty-fifty threshold  would of course, by linguistic definition, mean that it is improbable that the appeal will be allowed and in such circumstances it would be hard to say that any appeal had a real prospect of success; rather, it could only be said as a matter of logic that it had a real prospect of failure.

9 I have considered carefully the two grounds of appeal and the arguments in support and I have clearly concluded that they have merit.  Mr. Chamberlayne has established a clear prima facie case of non-disclosure and a clear prima facie case of undue influence.  In my judgment there is a real prospect of success as I have concluded on the material before me that it is more likely than not that the appeal will succeed.  This is not to pre-judge the appeal in any way and of course I have only heard from one side.  However, I am satisfied that the grounds are made out.  In such circumstances I propose to grant permission and to extend the time for appealing.

10 The question of fresh evidence is dealt with by rule 30.12(2)(b) which states that unless it orders otherwise, the appeal court will not receive (a) oral evidence or (b) evidence which was not before the lower court.  It would be open for me now to deal with the question of admission of fresh evidence on the appeal; however I believe that in fairness to the husband that that issue should be heard inter partes.  I therefore agree with Mr. Chamberlayne that there should be a half-day directions hearing to be listed before Easter 2012 at which the question of fresh evidence will be considered by the court.   I also believe it would be appropriate now for me to direct that the appeal proper is listed on dates that are convenient to counsel with a time estimate of three days.  The costs of this application will be in this appeal.

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