Egbaiyelo v Egbaiyelo

An appeal may be refused as academic where the order has ceased to serve a practical purpose. Where a lower court has given no reasoned judgment and the merits may change if a related tenancy order is made, the permission application may be adjourned on notice. Homelessness may affect the prospects of residence and contact applications where obtaining accommodation would materially alter the position. The interaction between section 54(4) of the Access to Justice Act 1999 and paragraph 2.2 of the practice direction under the Civil Procedure Rules was left for determination by a full court.

The father applied for permission to appeal and an extension of time against orders made by His Honour Judge Coningsby QC in the Croydon County Court on 31 May 2001. One order dismissed an application under section 33 of the Family Law Act 1996 after the mother supplied addresses for the children. Other orders treated proposed appeals against earlier district judge decisions as permission applications and dismissed them, dismissed a residence application as having no realistic prospect because the father was homeless, and accepted the mother’s proposals for contact at a contact centre.

By the time of the application, the father knew where the children lived. The central issues were whether the first appeal was academic, whether a tenancy transfer could materially improve the father’s position, and whether section 54(4) applied in family proceedings.

1. Paragraph 1. Permission to appeal was refused. The father’s challenge to the order concerning the children’s addresses had become wholly academic because he had established where the children were residing. An appeal would serve no useful purpose.
2. Paragraph 2 and section 54(4). Lord Justice Ward had initially considered that section 54(4) of the Access to Justice Act 1999 prevented this court from reconsidering the refusals of permission by the district judges. He then considered that view probably wrong because the statutory position did not apply in family proceedings by virtue of paragraph 2.2 of the practice direction under the Civil Procedure Rules. The point was not finally determined. The application was adjourned so that it could be considered by a full court and guidance given to circuit judges.
3. Merits of the proposed appeals. The father’s case that the London tenancy should be transferred to him had a reasonable prospect of success. The possibility that the mother had moved to Cambridge, the father’s homelessness, and the absence of a reasoned judgment from the county court were material. If the tenancy were transferred, the father’s prospects in relation to residence would improve. The residence application therefore also appeared to have reasonable prospects. The same applied to contact, where the judge had given no real reasons before accepting the mother’s contact-centre proposals.
4. The applications concerning paragraphs 2, 3 and 4 were adjourned on notice to the mother. The case was not to be relisted until the parties indicated whether they would use the court mediation service. The father was advised to notify the landlord to protect his position concerning any possible tenancy transfer.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1970, permission to appeal paragraph 1 of the county court order was refused as academic. The applications concerning paragraphs 2, 3 and 4 were adjourned to be listed before two Lords Justices, with any appeal to follow if permission were granted.
• Croydon County Court: On 31 May 2001, His Honour Judge Coningsby QC made the orders challenged in the Court of Appeal.