Appealing decisions by a District Judge and questions of mediation

Divorce|Family Law|January 21st 2014

Every so often readers write to tell me about particular rulings by district judges – members of the judiciary who sit in county and magistrates courts. These readers are often furious about the ruling and want to know whether there would be any point in lodging an appeal.

In a recently published case, H-v-W, Mr Justice Mostyn examined the principles involved. The husband wished to appeal a financial order made against him by a district Judge and applied for permission to do so. Mr Justice Mostyn noted the specifics of the Family Procedure Rules 2010, which state:

“(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

The judge added:

“This appeal has to be considered in accordance with the principles laid down by Thorpe LJ in Cordle v. Cordle [2001] EWCA Civ 1791; [2002] 1 WLR 1441; [2002] 1 FLR 207 where Lord Justice Thorpe restated the test laid down in the G v. G (Minors) Custody Appeal [1985] 1 WLR 647; [1985] FLR 894 by saying:

[32] ………any appeal from a decision of a district judge in ancillary relief shall only be allowed by the circuit judge if it is demonstrated that there has been some procedural irregularity or that in conducting the necessary balancing exercise the district judge has taken into account matters which were irrelevant, or ignored matters which were relevant, or has otherwise arrived at a conclusion that is plainly wrong.”

He continued:

“I also bear in mind that, as Lord Hoffmann observed, cases of this sort inevitably involve value judgments upon which reasonable people may differ and it is therefore inevitable that there will be some degree of diversity in the outcome of cases such as this.”

So if it can be shown that the district judge was plainly wrong, in the whole of his decision or just in part, an appeal might be worth attempting.

Another interesting issue cropped up in the same case. Mr Justice Mostyn was taken by the idea that mediation might sort out the matter in dispute – how much of the husband’s bonus the wife was entitled to – and so he directed the parties towards mediation.  The husband agreed to bear the costs of the mediation in the first instance but it didn’t get off the ground because the parties couldn’t agree on a suitable mediator.

The wife then applied for a legal costs order, requiring the husband to fund her ongoing court costs. But the judge refused her application, saying in his ruling that the wife had been unreasonable in her approach to the mediation. She had insisted on using “a top-drawer and top-price mediator” and also on attendance of legal representatives at mediation. The judge said this was:

“…neither necessary nor reasonable; in my experience this would be unusual and arguably unhelpful.” He pointed out that that there was still time for mediation to take place. It did not.

Meanwhile, the Court of Appeal recently considered the refusal of an invitation to engage in alternative dispute resolution (ADR), notwithstanding the fact that court proceedings had already begun. In PGF II SA v OMFS Company 1 Ltd, the Court made it very clear such a refusal would have implications for the legal costs payable. A good article about this case and the need to engage in ADR, whether in civil or family proceedings, can be found here:- here.

I can understand the frustration of Mr Justice Mostyn. Here at Stowe Family Law, we have on several occasions invited our opposite number to mediate, use the collaborative process and or more recently to arbitrate. More often than not we are met by a refusal. The reasons are never adequately explained – indeed,  the wife in the above case appeared to have no adequate explanation.

But on the other hand I sympathise with aspects of her case. I do think her legal representatives should have been present in a mediation where the subject matter had reached the High Court and involved a lot of money, a precise calculation and a cap on her share of the bonus. I can also understood her reluctance and apparent feelings of inadequacy toward a husband who knows his income capacity far better than she, after all she had last worked 15 years ago as a secretary. In fact, I wonder if by suggesting her lawyers should not have been present, Mr Justice Mostyn was effectively stymying the mediation before it ever got off the ground. When I have been involved in solicitor led mediation it has worked very well, clients having the confidence to make a deal.

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  1. Tristan says:

    Part of the problem with appealing inadequate awards of time to a non-resident parent is that the ever-present risk of emerging alienation is an entirely unacknowledged phenomenon which is impossible to quantify without expert opinion. The average Cafcass officer is blind to the issue and his resulting s.8 report is therefore a totally useless piece of evidence in that regard. Courts are generally dismissive of the issue too. Most orders for contact are inadequate and do not meet the real needs of children in developing healthy, continuing relationships with non-resident parents. Neither first instance nor appeal courts are fully alive to the problem of child alienation. It is only extreme cases of alienation that make the judges wake up briefly before they slumber back to their lazy, unseeing ways.
    Appeal courts in general have helped to consolidate problems inherent in family law, not resolve them.

  2. Simon Robinson says:

    A very interesting and timely article. Involvement of a good lawyer can add value to a mediation, in, amongst other ways, by providing clear advice, helping the party to prepare and ensuring necessary disclosure takes place.

    Lawyers and mediators can co-operate to provide the best service to the client(s). This approach can also help to level any power imbalances of the type Marilyn mentions.

    Also, a thank you to Marilyn for referencing my article on the potential consequences of failing to respond to an invitation to engage in ADR !

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