Sneh v Sneh

Permission for a second appeal requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it. A challenge to the application of established law to the facts, particularly in discretionary ancillary relief proceedings, will rarely satisfy that test. Appellate courts should respect the advantages of the lower courts, which heard or considered the evidence. In deciding whether to adjourn, the court must balance fairness to all affected parties, including children, and may consider the costs and consequences of delay. The relevant financial consideration in ancillary relief may be earning potential rather than actual earnings.

The husband applied for an extension of time and permission to bring a second appeal against orders made in ancillary relief proceedings following divorce. The Deputy District Judge proceeded in his absence after refusing a late adjournment request and made orders concerning the former matrimonial home, pensions, company shares and periodical payments. Her Honour Judge Andrew dismissed his appeal after considering the matter afresh and reviewing further evidence.

The husband challenged the fairness of proceeding in his absence, the assessment of his earning capacity and the distribution of the family assets. The central questions were whether the delay should be extended and whether the proposed appeal met the statutory threshold for a second appeal.

Applications refused. Lady Justice Hale refused both an extension of time and permission to appeal.

1. In deciding whether to extend time, the court considers the reasons for delay and the merits of the proposed appeal. It must also act fairly to both parties and the children, taking account of the impact of delay. The husband had not adequately explained the period between receiving the relevant appeal information and making his application.
2. Under section 55(1) of the Access to Justice Act 1999, permission for a second appeal could be granted only if the appeal raised an important point of principle or practice, or there was another compelling reason for the Court of Appeal to hear it. A challenge concerned merely with applying established law to particular facts was unlikely to meet that threshold, especially in discretionary ancillary relief proceedings.
3. The refusal to adjourn the original hearing did not disclose a real prospect of success on appeal. Although the right to a fair hearing required careful consideration, the Deputy District Judge had balanced justice to the husband, the wife and the children, including the consequences of further delay and wasted costs. Any earlier procedural disadvantage was in substance addressed by the subsequent hearing before Her Honour Judge Andrew, who considered the evidence in detail and dealt with the matter afresh.
4. The appellate court should be slow to interfere with discretionary financial decisions where the lower court had the benefit of considering the evidence. Applying the principle in Piglowska v Piglowski [1999] 1 WLR 1360, the search for perfect justice through repeated appeals was inappropriate. The assessment of the husband’s earning capacity was a clear factual and discretionary conclusion, and there was no compelling reason to revisit it.

The proposed appeal had no reasonable prospect of success, raised no important point of principle or practice and disclosed no other compelling reason for a further appeal. The applications for an extension of time and permission to appeal were refused.

• Court of Appeal (Civil Division): Applications for an extension of time and permission to appeal refused.
• Canterbury County Court: Her Honour Judge Andrew dismissed the husband’s appeal against orders made by Deputy District Judge Taylor.
• Canterbury County Court: Deputy District Judge Taylor proceeded in the husband’s absence and made ancillary relief orders.