Lisinge v Lisinge

An application for permission to appeal may be hopeless where the order under challenge expressly gives the applicant liberty to apply in the trial court and that route has not been used. Substantial delay may independently make the application hopeless where it is made well outside the permitted period. The applicant’s status as a litigant in person, and assistance from the Citizens Advice Bureau, do not cure these fundamental defects.

A wife obtained orders in the county court excluding her husband from the matrimonial home and restraining violence and harassment. The order made on 5 October 2000 was made in the husband’s absence but gave him liberty to apply on notice. He did not exercise that liberty. On 14 May 2001, while the husband was present, the county court transferred the tenancy of the former matrimonial home to the wife. On 24 May, the husband sought permission to appeal the October order rather than the May order. The central issue was whether that late application disclosed any basis for permission to appeal.

Application dismissed. Lord Justice Thorpe considered the proposed appeal against the order of 5 October 2000 to be manifestly hopeless.

1. The October order had been made after the county court was satisfied that the husband had been served with the earlier order and had accommodation available. It gave the wife sole occupation of the matrimonial home, excluded the husband, and continued injunctions against violence and harassment. It also gave the husband liberty to apply on notice within a specified period. He did not exercise that liberty, either within the time fixed or subsequently.
2. The later proceedings reinforced the difficulty. On 14 May 2001, the husband appeared before the county court when the tenancy was transferred to the wife. His written submissions referred to his belongings remaining in the house, the absence of an emergency or immediate threat, and the need to have regard to equity. Nevertheless, his application to the Court of Appeal, received on 24 May, sought permission to appeal only the October order.
3. The application was made approximately seven and a half months after the October order and approximately seven months out of time. Although the husband was a litigant in person and had received assistance from the Citizens Advice Bureau in preparing the bundle, those circumstances did not alter the conclusion that the application was hopeless. The formal order was that the application be dismissed.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal the Wandsworth County Court order of 5 October 2000.
• Wandsworth County Court: made the order of 5 October 2000 excluding the husband from the matrimonial home and continuing injunctions, with liberty to apply on notice. It later transferred the tenancy to the wife on 14 May 2001.