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Keeping up with appeal procedure in the High Court (or at least trying to)

Byron James, barrister, 14 Gray’s Inn Square reviews the guidance arising from the latest case law concerning applications for leave to appeal in financial remedies orders in the High Court

Byron James, Barrister, 14 Gray's Inn Square

One of the best things about law, perhaps in particular family law, is that everything changes and, seemingly, all of the time. '[P]lus ça change....', said one barrister as he closed his submissions and blue book, when the learned judge looked up and said 'Well,  in my experience everything does change, and nothing seems the same'. It can be something of a struggle just to keep up; the case of NLW v ARC [2012] EWHC 55 provides an example of just that.

The judgment contains little substantively about the case itself, with Mostyn J 'clearly conclud[ing]' that the appeal prima facie had merit. The short judgment was more concerned with what his Lordship referred to as a 'brief survey of the powers and procedures applicable to this application'.

The Applicant brought her application to appeal a consent order by way of notice and, as will be explained, the matter was listed for an ex-parte hearing. The representatives for the Respondent to the appeal did not attend the hearing, instead they wrote a letter:

"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." 

In O v O, Baron J referred to the previous procedure of a thirty minute inter partes hearing which was automatically listed following an application for leave to appeal. This had 'obvious merit' because of the right to appeal in ancillary relief. In respect of the new procedure, Baron J sets out:

"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. If the appeal court refuses the application on paper, the appellant then has the right to ask for an oral hearing"

Baron J went on to say that she would expect this hearing to be 'one sided' unless the Court orders otherwise; the aspect of her decision relied upon in the letter to the court from the Applicant's solicitors.

Mostyn J appeared to have a different view to Her Ladyship about the ability of the Court to deal with such applications on paper (para 4):

"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."

There therefore appears to be discord between what Baron J asserts is the 'clear' meaning of the Family Procedure Rules 2010 and what Mostyn J asserts is the actual, practical reality/achievability of the same. Both agree that the new rules are 'akin' to those used by the Court of Appeal but with Mostyn J asserting this 'main procedural difference'.  According to Mostyn J, appeals to the Family Division will now always be 'listed before a High Court judge for determination'. This procedure would appear more de facto than de jure, on a reading of the FPR 2010.

At this listed ex-parte hearing, there are five possible outcomes (para 5):

"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."

In the usual event that there is more than one ground of appeal before the Court, then the Court can apply different provisions to the different grounds, allowing permission for some, ordering inter partes hearings for others and refusing outright the rest.

Herein lays the 'misconception' of the letter to Mostyn J, 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". Part of the new system that we all need to get used to therefore is that the Court, just as the Court of Appeal presently do, is entitled to determine in a definitive way leave to appeal by only hearing from one party at an ex-parte hearing, and, according to Mostyn J, these applications will not be dealt with (in the High Court at least) on paper alone.

In allowing permission to appeal Mostyn J stated (para 9)

"I have considered carefully the two grounds of appeal and the arguments in support and I have clearly concluded that they have merit.  [The Wife] 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."

One final word on costs. Courts around the country are clearly still getting used to the new appeals procedure; there will be times when the Court lists an application for leave hearing and requires the attendance of all parties all the same, mistakenly so perhaps because 4.22 states that in 'most cases' such hearings will be determined without requiring input from the Respondent; in such circumstances, do not forget 4.24 of 30A (Practice Direction on Appeals)

"Where the court does request –

(a)submissions from; or

(b)attendance by the respondent,

the court will normally allow the costs of the respondent if permission is refused".