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Permission to appeal ‘ancillary relief’ decisions should be first sought from court of first instance: Mostyn J

Permission to appeal in AB v CD [2014] EWHC 2998 (Fam) refused

In AB v CD [2014] EWHC 2998 (Fam) Mr Justice Mostyn has said that in ancillary relief cases 'at the very least' an application for permission to appeal must always be made to the judge at first instance before an approach is made to the Court of Appeal.

Mostyn J uses "the old expression 'ancillary relief' rather than the neologism in the Family Procedure Rules of 'financial remedy', as ancillary relief is still the heading to that part of Part 2 of the Matrimonial Causes Act beginning at Section 22, where it sets out the powers of the Court and describes them as 'ancillary relief in connection with divorce proceedings'."

In the case before him an application by the trustees seeking permission to appeal was filed directly with the Court of Appeal. 

He says (at paras 75 -77):

"CPR 52.3(2) and CPR Practice Direction 52A 4.1 allow the application to be made to either the court at first instance or to the appellate court.  The old version of the practice direction encouraged the application to be made to the court of first instance, but that prescription is now absent from the existing practice direction.  However, the editors of the White Book, headed by Lord Justice Jackson, are clearly of the view that an application for permission should be made to the court of first instance. This is set out at para.52.3.4.  It sets out five reasons why the application should be made to the court of first instance as follows:

'(a)  The judge below is fully seised of the matter and so the application will take minimal time.  Indeed the judge may have already decided that the case raises questions fit for appeal.

(b)  An application at this stage involves neither party in additional cost.

(c)  No harm is done if the application fails.  The litigant enjoys two bites at the cherry.

(d)  If the application succeeds and the litigant subsequently decides to appeal, they avoid the expensive and time-consuming permission stage in the Appeal Court.

(e)  No harm is done if the application succeeds but the litigant subsequently decides not to appeal'.

"The White Book goes on to say this:

'It should be noted that the guidance in this paragraph was firmly endorsed by the Court of Appeal in Re T (A Child) [2002] EWCA Civ. 1736 at 12-13.'

"The remarks of the Court of Appeal in Re T (A Child) are seared on my memory as I represented the delinquent applicant in that case who made an application for permission to appeal directly to the Court of Appeal without troubling Mr. Justice Wilson (as he then was) who was the first instance judge, and where, in the Court of Appeal, I received withering criticism for my conduct for so doing.

"In my judgment, there is an additional very good reason why an application should be made before the judge at first instance.  The judge at first instance may very well be a specialist in this field.  Without being hubristic, I can, I think, rightly claim to be specialist in the field of what used to be referred to by the profession, and is still referred to in the Matrimonial Causes Act, as "ancillary relief". 

...

"I am aware, from remarks that have been made at judicial symposia, that the judges in the increasingly beleaguered Court of Appeal find the rulings made by judges of first instance on applications for permission to appeal to be extremely helpful in identifying the merits or otherwise of an application for permission to appeal.  It is therefore my clear view that in the future, in the field of ancillary relief at the very least, an application for permission to appeal must always be made to the judge at first instance before an approach is made to the Court of Appeal."

The application for permission to appeal was dismissed.

The judgment is here.

21/9/14