Posted: 20/07/2015
In McHugh v McHugh [2014] the Court of Appeal provided an overview of the circumstances in which it has jurisdiction to hear an appeal against a financial remedies order and, conversely, situations where legislation and public policy dictate that finality should be brought to bear on family litigation.
The appeal in McHugh concerned a financial final hearing which took place on 10 October 2012 in the Medway County Court with the district judge handing down judgment on 8 November 2012. Although the order stated explicitly that it was made 'upon hearing the evidence of the parties,' it transpired that the husband had not had the opportunity to cross-examine the wife (and vice-versa).
The chronology of the appellate process was:
At the oral permission hearing the grant of permission to appeal was explicitly limited to an appeal on the grounds that:
Importantly, the limited grant of permission to appeal did not specifically include the ground of failure by the district judge to permit the husband to cross-examine the wife.
The appeal was heard on 5 November 2013 and the circuit judge allowed the appeal in part, finding that the wife had deliberately concealed the size of an inheritance she had received. An order was made granting the husband a greater share of the proceeds of sale of the former matrimonial home. Until this point the husband had correctly followed the provisions of Pt 30 of the Family Procedure Rules 2010 (FPR 2010) and PD 30A which set out the procedure for appeals in family proceedings.
The husband then applied to the Court of Appeal for permission to appeal. His basis for the further appeal included one of the previous grounds in support of his application for permission to appeal to the circuit judge, namely the district judge’s failure to swear in witnesses and permit cross-examination of the wife.
Permission to appeal was granted on paper on 8 October 2014. Sir Robin Jacob granted the husband permission to appeal to the Court of Appeal on the sole ground of the failure of the district judge to swear in the witnesses. He invited the parties to agree to the appeal being allowed by consent and remitted for a re-trial. For whatever reason, the husband declined to consent to that course of action (a decision that he would later have cause to regret).
The appeal came before the Court of Appeal with the leading, unanimous judgment given by Lewison LJ. Before considering the merits of the appeal, the Court of Appeal identified that it raised a question of jurisdiction, reiterating that the Court of Appeal’s jurisdiction is specifically provided for, and circumscribed by statute, in particular s54(4), Access to Justice Act 1999 (AJA 1999) which states that: "No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”
The Court of Appeal therefore had to determine the key question of whether the husband’s appeal was against a decision of an appeal court to refuse permission to appeal, which would be prohibited by that section.
The husband put forward a number of arguments. He submitted that his application for permission to appeal had succeeded and that the district judge’s decision not to swear in the witnesses was fundamental to other grounds upon which the appeal was allowed by the circuit judge. The Court of Appeal disagreed, by granting permission to appeal on limited grounds, the circuit judge had in effect refused permission to appeal on the other grounds raised by the husband including the ground that the witnesses had not been sworn in. The provisions of s54(4), AJA 1999 prevented the husband from appealing to a higher court against the decision to refuse permission to appeal on those other grounds. In support of this the Court of Appeal referred to FPR 2010, PD 30A, paragraph 4.18 which provides that: "Where a court under rule 30.3 (Permission) gives permission to appeal on some issues only, it will (a) refuse permission on any remaining issues; or (b) reserve the question of permission to appeal on any remaining issues to the court hearing the appeal."
The Court of Appeal also referred to FPR 2010, PD 30, paragraph 4.21 which states that: "If the appeal court refuses permission to appeal on remaining issues at or after an oral hearing, the application for permission to appeal on those issues cannot be renewed at the appeal hearing (see section 54(4) of the Access to Justice Act 1999).”
It followed therefore from paragraph 4.18 that, in granting permission at the oral permission hearing on limited grounds, the court had refused permission to appeal on the issue now raised before the Court of Appeal. Further, the husband could not argue that the failure of the trial judge to permit cross-examination was fundamental to the judge’s decision to allow the appeal, as he was prevented from broadening the ambit of his appeal at the appeal hearing by paragraph 4.21.
Having decided that it lacked jurisdiction to hear the husband’s appeal, the Court of Appeal then addressed the grant of permission to appeal to the Court of Appeal by the direction of Sir Robin Jacob. Although the Court of Appeal can set aside such permission, it can only do so where there is a 'compelling reason' to do so (per Civil Procedure Rules 1998, r52.9). The lack of jurisdiction to hear the appeal itself was held to be compelling reason to set aside the grant of permission: the court therefore refused the husband permission to appeal and set aside the grant of permission to appeal.
The key point to take away from this decision is a reminder that, once permission to appeal has been refused by the appeal court, that is the end of the matter. While the decision of the district judge to refuse permission was not final and the application for permission to appeal could be renewed to the circuit judge, the decision of the circuit judge to refuse permission to appeal was final and the application could not be renewed before the Court of Appeal.
By seeking to renew on a ground that had been refused, the husband was seeking in effect a third 'bite of the cherry' which was a step too far, regardless of how dissatisfied he was with the order made following the appeal heard by the circuit judge.
The requirement to obtain permission to appeal acts as a necessary filter or threshold test against extended unmeritorious litigation. In family proceedings, in accordance with Pt 30, FPR 2010 and PD 30A with effect from 6 April 2011, permission to appeal is now a requirement where an appeal is to be brought from a decision of a district judge, save where the appeal is from a committal order, a secure accommodation order or a refusal to grant habeas corpus for release in relation to a minor (r30.3(2), FPR 2010).
It is important to recognise the distinction between the test for granting permission to appeal and the more rigorous test for granting or refusing a substantive appeal. Under r30.3(7), FPR 2010 permission to appeal may only be given where the court considers that the appeal would have a 'real prospect of success' or whether there is some other compelling reason why the appeal should be heard.
By contrast, to succeed on an appeal, the court must find that the decision of the lower court was wrong, or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
There has been much judicial discussion of the meaning of a real prospect of success. In NLW v ARC [2012], Mostyn J suggested that (at paragraph 8): “...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.”
More recently, Moor J in AM v RM (Appeal) [2012] argued that there should be no such gloss on the provision and the rule simply requires a real prospect of success to be shown, saying (at paragraphs 9 and 10): ”It has been on said on many occasions that judges should not place a judicial gloss on the words of either the statute or the rules... I consider that there should be no gloss placed on the words of the rules other than to say that 'real' means that the prospect of success must be realistic rather than fanciful.”
That view was supported by Moylan J in CR v SR [2014] and by Peter Jackson J in H v G [2013] who said (at paragraphs 31 and 32): “The test, which appears at r 30.3(7) of the Family Procedure Rules 2010 is that an applicant must show 'a real prospect of success'. I would simply record that so far as I am concerned no further elaboration of those words is necessary or helpful. I would not, with respect to Mostyn J, follow him in regarding it as a term of art or in focusing on the word 'fanciful' derived from a previous Court of Appeal authority as an antonym to the word 'real' in the rule; or of finding synonyms to that antonym, particularly the synonyms 'capricious, whimsical or absurd'... I respectfully suggest that to allow permission to appeal in any case where the application is not capricious, whimsical or absurd is to set the threshold too low. It does not, in my view, give effect to the rule that simply requires a real prospect of success to be shown.”
Whichever interpretation of the phrase is adopted, it certainly represents a much lower hurdle than the test on the appeal itself and serves to root out cases of little merit. This explains the rationale behind the prohibition under s54(4), AJA 1999 against appealing against a refusal for permission.
There is a clear policy reason why litigants should not be permitted to renew appeals to a higher court where permission to appeal has been refused by the appeal court below. This is especially important in a climate where public funding has been curtailed and litigants in person often do not receive the necessary advice regarding the prospects of successfully overturning a decision.
The court will firmly impose limits on litigants seeking to renew appeals where a decision has already been made which strictly adheres to the rules of jurisdiction, notwithstanding arguments as to any hardship that may be suffered as a result of the decision.
This article was published in Family Law Journal in May 2015.
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