Le Foe v Le Foe

Permission to appeal may be granted where a genuinely arguable and technically difficult issue warrants consideration by the Court of Appeal, even if the financial value of the dispute makes further litigation questionable. The proposed appeal concerned whether a wife was in actual occupation when a mortgage was created, whether any resulting interest overrode the mortgagee’s interest, and whether the transaction was an avoidable disposition under section 37 of the Matrimonial Causes Act. Permission was refused on costs where the applicant had no reasonable prospect of success.

Mrs Le Foe sought permission to appeal an order made by Mr Nicholas Mostyn QC, sitting as a Deputy Judge of the Family Division in the Central London County Court on 19 June 2001. The order directed the sale of the matrimonial home and provided for the wife to receive half the net proceeds after specified deductions, including an amount representing the former Halifax mortgage.

The wife challenged the Woolwich mortgage, alleging that it had been created in circumstances intended to defeat her claim for ancillary relief. The lower court had found that the Woolwich should not be fixed with constructive notice of her presence or of the husband’s intention. The central questions were whether she had been in actual occupation, whether she had an overriding interest, and whether the mortgage was an avoidable disposition under section 37 of the Matrimonial Causes Act.

1. Permission to appeal was granted on the limited substantive questions concerning actual occupation, an interest overriding the Woolwich’s charge, and an avoidable disposition under section 37 of the Matrimonial Causes Act, including whether the court should exercise its discretion to set the disposition aside.

2. The challenge was only just arguable. There was some material capable of supporting an argument that the Woolwich ought to have appreciated that the husband was married and that more than one person occupied the property. The surveyor might arguably have been expected to investigate further.

3. Even if knowledge of the wife’s presence were established, a further issue remained. It was necessary to show that the mortgagee had, or ought to have had, knowledge of the husband’s intention to defeat the wife’s claim. The lower court had treated that as a substantial additional obstacle.

4. Permission to appeal on costs was refused. That matter lay within the lower court’s discretion and had no reasonable prospect of success. The question of a stay was adjourned.

• Court of Appeal (Civil Division): Permission to appeal granted on limited substantive questions; permission refused in relation to costs. The question of a stay was adjourned.
• Central London County Court: Mr Nicholas Mostyn QC, sitting as a Deputy Judge of the Family Division, ordered the matrimonial home to be sold and made consequential provision for distribution of the proceeds.