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O v O

Judgment in the High Court clarifying the procedure under the Family Procedure Rules 2010 when seeking permission to appeal district judge's decision.


O v O (Procedure for listing applications for permission to appeal to the High Court)

Charles Hale (Instructed by Clintons) for the Appellant
Stewart Leech QC (Instructed by Payne Hicks Beach) for the Respondent

The case before me today has brought into sharp relief the fact that the procedure by which appeals are now being dealt with under the Family Procedure Rules 2010 appears to be going awry.

Previously the High Court listed all appeals for a 30 minute directions hearing at which both parties were expected to attend. That procedure had obvious merit because no permission was required and an appeal from a District Judge of the Principal Registry of the High Court was by right. The new rules, however, have revolutionised the appeal process in that, subject to the exceptions set out in FPR rule 30(2), permission is required for appeals from any decision of a District Judge.  Despite that change, it appears that appeals are still being listed for a 30 minutes inter partes hearing, even when permission has not yet been given.

It is clear from the rules and from Practice Direction 30A that the first attempt to obtain permission to appeal (if not made orally at the end of the first-instance hearing) is by written application to be dealt with by the Court as a piece of box work i.e. an application to be disposed of on paper. In the event that the court decides the appeal has prospects of success the Judge can grant permission on paper. If he or she reaches the conclusion that permission is not warranted it is refused on paper.  If the appeal court refuses the application on paper, the appellant then has the right to ask for an oral hearing.  As an alternative, the Judge dealing with the paper application may list the permission application for hearing.  This will be for a one-sided hearing unless the judge indicates there should be an inter partes hearing, for example with the appeal to follow if permission is given.

In essence the new rules are akin to the procedure in the Court of Appeal and applications for permission to appeal should be dealt with and listed accordingly.