Finality of litigation

Family Law|July 15th 2015

Reading family law reports or simply following family law news stories one might be forgiven for thinking that most family court decisions are appealed against, with many of them ending up in the Court of Appeal. Hardly a day seems to pass without a new Court of Appeal judgment, or news that someone or other intends to appeal against some decision or other – and often a decision that has already made on an appeal.

This is, however, a misconception, caused by the simple fact that appeals are often noteworthy from a legal point of view, or newsworthy from the point of view of the media. However, very few cases go to appeal, and fewer still get to the Court of Appeal – (I will not digress into the detail of the various routes of appeal in the family justice system, but suffice to say that not all appeals go straight to the Court of Appeal). By way of example, the most recent figures that I have found (contained in the Quarterly Court Statistics for January to March 2014) indicate that each year only about fifty appeals are filed with the Court of Appeal from the Family Division – compare that to the forty-odd thousand cases started each year just in respect of financial remedies, let alone the other types of family proceedings.

Appeals are a rarity, and one of the reasons for this is the principle of finality of litigation. Finality of litigation is the concept that legal proceedings should not be open-ended. They should conclude with a decision that is intended to bring the proceedings to an end – there should be no ‘second bite of the cherry’. Accordingly, appeals will not be allowed without good reason. In the family law field, the principle of finality of litigation applies in particular to financial remedy cases, where the order of the court settling out the financial/property settlement is intended to be final.

The principle of finality of litigation was clearly demonstrated in the recently published judgment in Stocker v Stocker. This concerned a husband’s attempt to appeal against a financial remedies order. In fact, it was his second attempt, as a previous application for permission to appeal ‘on the papers’ [ie on the basis of the documents already on file] had been refused by Lord Justice Kitchin.

He had found that His Honour Judge O’Dwyer, who made the original order, had properly directed himself on the legal approach to be adopted and in particular had concluded that there was no good reason not to make an order that was essentially in the terms that the parties had agreed at one point in the proceedings. He concluded that there was no real prospect of the appeal succeeding and no other compelling reason why an appeal should be heard.

The husband renewed his application for permission to appeal, and this was heard by Mr Justice Blake. He concluded (my underlining):

“Nothing that I have read in the papers or heard from the appellant husband today suggests that the judge misdirected himself in law, failed to take material considerations into account or reached a conclusion that was not reasonably open to him on the facts as he found them to be. In those circumstances, marrying up what the husband says in his notices and oral submissions with the judge’s judgment, none of those matters constitutes a basis for an appeal that has any prospect of success. Unfortunately, as so often in this particular type of litigation, everything has the appearance of the aggrieved individual unwilling to accept that in proceedings of this sort there needs to be finality of the litigation process and the judgment of the court below needs to be respected unless wrong in principle. This judgment was not wrong in principle; accordingly, I see no basis to grant permission to appeal this renewed application. It is accordingly dismissed.”

And that is the point: being aggrieved at a court’s decision is not enough to disturb the principle that there should be finality of litigation. Unless there is a very good reason otherwise, the parties must respect the decision of the court and be allowed to move on with their lives, without fear that matters will be re-opened at some point in the future.

The full report of the case can be read here.

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  1. Andrew says:

    Of course if costs followed the event and appellants were required to give security for respondent’s costs by cahs in court or insurance . . .

  2. Pete says:

    “the parties must respect the decision of the court”
    Really John, is it not more of a case of once you have been fleeced by a solicitor and the court you cant afford to go through it again. Respect is earned and after seeing the comments on this site,in the papers and having gone through a divorce myself I see nothing that shows me that people in the legal system deserve the respect they demand let alone a decision made be one person .

  3. Nordic says:

    Our family law system is designed to promote litigation and the keep it going for decades. If finality of litigation was the objective, we would have a legally binding regime for asset division. If finality was the aim, courts would use the powers they have to enforce their own orders (such as contact arrangements) rather than allowing such orders to be flaunted without consequence (at least by mum). If our senior courts wanted to create precedents that stop the fighting, they would have stop rather than encourage ex wives to come back decades later to have another bite of the cherry.
    Finality of litigation means finality of the gravy-train. Nobody in our family industry wants that. They want endless litigation. That’s the principle objective underpinning the design of our family law system.

  4. JohnWood says:

    While I accept the principle of Finality of Litigation judges can make mistakes (errors of judgements if you prefer!) A careful consideration of the outcome against Section 25 Matrimonial Causes is worth looking at.
    I appealed against the final hearing outcome and the appeal was upheld on the basis that the judge (who was in fact a solicitor ‘acting up’) had made a mistake. Had I not appealed then I would have been effectively made bankrupt. As more and more become ‘litigants in person’ I can see an increase in the number of appeals being made and not just because ‘it didn’t seem fair’ but because many intelligent people will be forced into representing themselves in the courts. The full cost of removing legal aid may well cause HMG more problems than they envisaged !

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