The limits of appeal in the family courts

Family Law|January 6th 2015

As one would expect, few new judgments were published over the Xmas/ New Year break. There was, however, one interesting Court of Appeal judgment, involving my local court no less.

McHugh v McHugh concerned an appeal against a financial remedies order handed down by a District Judge in November 2012. The order declared that it was made “upon hearing the oral evidence of the parties”, but after extensive investigations it turned out that neither party had given evidence on oath.

Mr McHugh was not happy with the order and after the judgment was handed down he applied to the District Judge for permission to appeal. That application was refused and Mr McHugh applied again to the Circuit Judge. One of his grounds of appeal was that inadequate time was available for either party to be placed under oath and he had not been able to cross-examine Mrs McHugh under oath. Permission to appeal was refused in the documents but at a renewed oral hearing the Circuit Judge granted permission to appeal limited to two grounds: firstly, “that the District Judge’s approach to the treatment of the wife’s inheritance from her aunt’s estate was wrong, both in principle and in refusing adequate disclosure to establish the full amount thereof”. Secondly “the District Judge should not have ordered an immediate sale of the matrimonial home but should have postponed it and, if so, the terms thereof.”

The Circuit Judge then heard the appeal and allowed it in part, largely on the grounds that Mrs McHugh had deliberately concealed the size of the inheritance from her aunt, leading the Circuit Judge to award Mr McHugh a greater proportion of the proceeds of sale of the matrimonial home than the District Judge had awarded.

Mr McHugh then applied for permission to appeal to the Court of Appeal on a number of grounds, including that no evidence had been given under oath and that neither party had ever answered any question under oath throughout the duration of all of the hearings of the case. In October 2014 permission was granted “solely in respect of the issue concerning the failure of the District Judge to swear in the witnesses.”

The appeal then went before the Court of Appeal and Lord Justice Lewison handed down the leading judgment on the 2nd of December. He immediately pointed out a jurisdictional problem. Under section 54(4) of the Access to Justice Act 1999 no appeal may be made against a decision of a court (i.e. a county court, the High Court or the Court of Appeal), to give or refuse permission to appeal. Accordingly, the Court of Appeal did not have power to grant permission to appeal, as the Circuit Judge had already made a decision regarding permission to appeal.

In the circumstances the Court of Appeal had no power to hear the appeal and the permission was set aside.

Mr McHugh argued that the proceedings were so flawed that the Court of Appeal should hear the appeals. However, this argument was rejected, as the court had no discretion: prejudice to an appellant could not confer jurisdiction where statute made it clear that the court did not have jurisdiction. Parliament had specifically limited the appeal procedure, in order to ensure that resources should not be devoted to continuing appeals at higher levels if an appeal is not given permission in the lower courts.

Read the full judgement here.

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