Le Foe v Le Foe & Anor

An appellate application should be dismissed where intervening events have made the issue academic and no practical relief remains. A concern about prejudice from a mortgagee’s proposed sale of family property ceases to require determination where the property has been exchanged at a price accepted as good. The court may also take account of the fact that the lower court made no judgment on the substantive issue, but dealt with the application informally and recorded assurances or concessions in its order.

Mrs Le Foe sought permission to appeal an order made by Kirkwood J in the High Court Family Division on 20 February. The order dismissed her application and refused permission to appeal. The dispute concerned the prospective sale of family property by GMAC-RFC Ltd as mortgagee and the protection available to Mrs Le Foe. By the Court of Appeal hearing, the mortgagee had exchanged contracts at a price Mrs Le Foe accepted as good. The central question was whether any live issue remained for appellate determination.

1. Disposition. The application for permission to appeal was dismissed because it was academic.
2. Intervening events. The application arose from concern that a sale of family property by the mortgagee would prejudice Mrs Le Foe. GMAC-RFC Ltd had assured the High Court that it would consider written details of prospective purchasers and any advice from Hampton & Co about the asking price. By the hearing, the mortgagee had exchanged contracts at £1.616 million. Mrs Le Foe accepted that this was a good price, so any misgiving about the protection afforded by the earlier order had been overtaken by events.
3. Lower-court proceedings. The transcript showed that Kirkwood J had given no judgment. He had dealt with the application informally, obtained concessions from GMAC-RFC Ltd’s counsel, and recorded them in the order. That procedural history reinforced the conclusion that no live issue required appellate consideration.

Order: Application dismissed.

• Court of Appeal (Civil Division): On 19 June 2002, Lord Justice Thorpe dismissed the application for permission to appeal as academic: [2002] EWCA Civ 1018.
• High Court, Family Division: Kirkwood J made an order on 20 February dismissing Mrs Le Foe’s application and refusing permission to appeal. The proceedings were conducted informally and no judgment was given.