Morgan v Taylor

Permission to appeal out of time is discretionary. Where permission has been granted and the matter remitted for a rehearing, the rehearing court must decide the matter afresh within the scope of the remittal. It must not revisit the earlier decision to grant permission or substitute a different procedural approach.

The principles in Barder v Barder [1988] AC 410 govern attempts to reopen an ancillary-relief order after a later event is said to have undermined its basis. Delay, subsequent reliance on the order, non-disclosure and the absence of an important point of principle or other compelling reason may justify refusing further appellate intervention.

The former spouses had pursued prolonged proceedings concerning their children and ancillary financial relief. A district judge ordered the wife to pay the husband a £15,000 lump sum in return for his interest in the former matrimonial home, intending a clean break.

After residence of the children was transferred to the husband, he sought to reopen the financial order. Judge Bond granted permission to appeal out of time and directed a rehearing before a district judge. District Judge Cawood dismissed the application, relying principally on the husband’s non-disclosure. Her Honour Judge Davies dismissed his appeal.

The Court of Appeal considered the wife’s applications concerning the residence order and Judge Bond’s permission order, together with the husband’s application for permission to appeal Judge Davies’s decision. The central issues were whether the relevant orders could be reopened and whether the lower courts had properly followed the scope of the remittal.

1. Applications concerning residence and Judge Bond’s order. The wife’s applications were hopelessly out of time. The residence order had been acted upon, and she showed no realistic prospect of successfully challenging the trial judge’s factual findings. Her applications were dismissed.
2. Application of Barder v Barder. The relevant principles were that a new event must have occurred after the order and must have invalidated the basis on which it was made, so that an appeal would be certain or very likely to succeed. The application must also be made within a relatively short time, third parties must not be prejudiced, and the other established requirements must be satisfied. Judge Bond correctly treated the question as one of discretion and was entitled to grant permission out of time on the evidence before him.
3. Effect of the remittal. Judge Bond’s order directed a rehearing, not a review or a further appeal. The district judge was required to consider the matter afresh on the updated evidence. District Judge Cawood instead reconsidered the question already determined by Judge Bond and failed to carry out the required rehearing. Her Honour Judge Davies repeated that error by treating the application as governed by a fresh reconsideration of whether Barder v Barder applied.
4. Final appellate intervention. Despite those procedural errors, the husband had already received the opportunity to obtain suitable accommodation, had spent the lump sum, and had failed to make frank disclosure. This was effectively a third attempt to appeal. Under the applicable rules, there was no important point of principle or practice and no compelling reason for further intervention. Permission to appeal was refused, leaving the original clean-break order effective.

All applications were dismissed. Copies of the judgment were ordered to be provided to the parties at public expense.

• Court of Appeal (Civil Division): all applications dismissed. The original ancillary-relief order remained effective.
• Her Honour Judge Davies: dismissed the husband’s appeal from District Judge Cawood’s decision.
• District Judge Cawood: dismissed the husband’s application following the ordered rehearing.
• Judge Bond: granted permission to appeal out of time and directed a rehearing before a district judge.
• Portsmouth County Court: District Judge Hurley made the original ancillary-relief order and Judge Lauriston later transferred residence of the children to the husband.