Le Foe v Le Foe & Anor

Permission to appeal may be discharged where the proposed appeal, even if successful, would yield no substantial practical benefit. The court may take account of the financial consequences of delay, including continuing interest and the consequent reduction of the fund available to the applicant. An appeal which has become academic and disproportionate should not proceed merely because the underlying legal arguments are arguable or interesting. The court may also refuse a stay of execution and reject a late application for permission where no sufficient reason exists to extend time.

The appeal arose from financial-relief and mortgage-related orders made in the Family Division by Mr Nicholas Mostyn QC. The former matrimonial home, comprising two flats, was ordered to be sold, with the building society conducting the sale and receiving specified sums from the proceeds. The wife had previously obtained permission to appeal issues concerning occupation, an overriding interest and a possible voidable disposition under section 37 of the Matrimonial Causes Act. She also sought a stay of execution. The husband sought discharge of the permission, and the building society sought permission to appeal, apparently out of time. The central question was whether any appeal would provide the wife with a substantial practical benefit.

1. Disposition. Lord Justice Ward discharged the earlier permission to appeal. The wife’s application for a stay of execution was refused. The building society’s application for permission to appeal was dismissed, in any event as out of time, and no extension of time was granted.
2. The wife’s proposed arguments were legally arguable, including whether she had been in actual occupation when the charge was created, whether her interest overrode the building society’s interest, and whether there had been a voidable disposition under section 37 of the Matrimonial Causes Act. However, the arithmetic showed that success on the limited appeal would secure no substantial benefit because the ancillary-relief order was not under appeal.
3. Continuing mortgage interest of approximately £6,000 per month would further reduce the available fund during the likely delay required for a substantive hearing. Proceeding with an academic appeal in those circumstances would be disproportionate. That was a compelling reason to discharge the permission previously granted.
4. The court recognised the wife’s substantial emotional investment in the property but had no power to negotiate extensions of time, determine the location of partitions, or require the building society to accept a prospective purchaser.

The litigation should therefore end and the sale arrangements under the order should proceed.

• Family Division: Mr Nicholas Mostyn QC ordered the former matrimonial home to be sold, subject to directions concerning partition, marketing, possession and distribution of the proceeds.
• Court of Appeal (Civil Division): Lord Justice Ward discharged the previously granted permission to appeal, refused a stay of execution and dismissed the building society’s application for permission to appeal.