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Court of Appeal clarifies route for applications for permission to appeal

Application should be to judge at first instance ‘as a matter of good practice’

In P v P [2015] EWCA Civ 447 the Court of Appeal has clarified the route which appellants should follow when seeking permission to appeal decisions at first instance.

The case itself concerned an appeal by trustees of a post-nuptial settlement against an order made by Mostyn J in ancillary relief / financial remedy proceedings which varied the settlement to provide financial relief to the wife following divorce. Lady Justice Black dealt with the substantive issues of the appeal which was dismissed.

In the course of the appeal, counsel asked the court to consider Mr Justice Mostyn's second judgment, in which he dealt with the question of permission to appeal: Re P [2014] EWHC 2990 (Fam) – published sub nom AB v CB as a supplement to AB v CB [2014] EWHC 2998 (Fam). Lord Justice Jackson dealt with this issue.

In Mostyn J's supplemental judgment he had expressed displeasure that the appellants were pursuing an application for permission to appeal directly to the Court of Appeal without reference to himself. Citing paragraph 52.3.4 of the notes to the White Book, the judge said that "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".

Jackson LJ clarified the position, stating that pursuant to CPR r52.3(2) and PD52A para 4.1 it was no longer a mandatory requirement to apply to the lower court. However, he emphasised that it remains "a matter of good practice".

For the judgment and summary by Thomas Harvey, from which this item is derived, please click here.