Clarification on Seeking Permission to Appeal

By Wing Yan Chan

This case involved an appeal brought by the trustees of a post-nuptial settlement against an order of Mostyn J, which varied that settlement by way of ancillary relief following a divorce between the spouses. The Court made awards in favour of the wife and the trustees appealed. It was agreed that the principles on which the court’s power under section 24(1)(c) should be exercised are set out in Ben Hashem v Ali Shayif [2008] EWHC 2380.

LJ Black, when determining the substantive issues and dismissing the appeal, held that the ambit of discretion was wide enough to encompass the order that Mostyn J made. Accordingly, the appeal could succeed only if the exercise of discretion was flawed. Black LJ determined that it was not, though she felt that a parallel reasoning based on need was “much more important” than that based on the sharing principle.

In the course of the appeal, counsel asked the court to consider Mr Justice Mostyn’s second judgment, in which he dealt with the question of permission to appeal: Re P [2014] EWHC 2990 (Fam) – published sub nom AB v CB as a supplement to AB v CB [2014] EWHC 2998 (Fam).

Mr Justice Mostyn had expressed displeasure that the appellants were pursuing an application for permission directly to the Court of Appeal without reference to himself. The judge quoted the following passage from paragraph 52.3.4 of the notes to the White Book (2014 edition), which sets out five reasons why an appellant should, in the first instance, apply to the court below:

“(a) The judge below is fully seised of the matter and so the application will take minimal time. Indeed the judge may have already decided that the case raises questions fit for appeal.

(b) An application at this stage involves neither party in additional cost.

(c) No harm is done if the application fails. The litigant enjoys two bites at the cherry.

(d) If the application succeeds and the litigant subsequently decides to appeal, they avoid the expensive and time-consuming permission stage in the Appeal Court.

(e) No harm is done if the application succeeds but the litigant subsequently decides not to appeal.”

In the Court of Appeal, Lord Justice Jackson confirmed that there is no longer a rule requiring the appellant to apply to the lower court for permission (see rule 52.3 (2) and Practice Direction 52A, paragraph 4.1). However, it was his view that even under the current rules, it is still good practice for any party contemplating an appeal in the first instance to seek permission from the lower court.  Ideally the party should do so when the judge delivers or hands down judgment.  This is for the five reasons set out above. These observations apply both to family cases and to civil litigation generally.