Treadgold-Lowe v Lowe

In ancillary relief litigation, a capital-division order is essentially final and is not ordinarily open to variation unless an extraordinary circumstance is asserted. Periodical payments remain variable. On an application for permission to appeal a discretionary refusal to revisit an ancillary relief order, the appellate court should respect the lower court’s evaluative balance unless an error is shown. Finality and the other party’s interest in ending prolonged litigation are relevant, while personal circumstances and welfare concerns must be recognised. Where the lower judge has explained the balance and no error is identifiable, permission should be refused.

The parties’ marriage had been dissolved, and ancillary relief proceedings followed. After an appeal from the District Judge, His Honour Judge Catlin made an order requiring the wife to receive a lump sum on transferring her interests in jointly owned properties, together with annual periodical payments.

The wife later applied to vary that order. Judge Catlin refused the application on 26 October 2001. She sought permission to appeal to the Court of Appeal, raising concerns about her son, her health and the implementation of the financial order. The central issue was whether the judge had erred in refusing permission to revisit the order.

1. Application refused. Lord Justice Thorpe refused permission to appeal against His Honour Judge Catlin’s discretionary refusal to revisit the ancillary relief order.
2. A distinction exists between the two elements of an ancillary relief order. Provision for periodical payments is essentially variable. A division of capital is essentially not open to variation, absent an extraordinary circumstance. No such circumstance appeared to have been asserted.
3. The lower court’s discretionary assessment was fully reasoned. The Court of Appeal identified no error and no possible ground for criticising the balance reached by Judge Catlin. The fact that the proceedings had moved on significantly since the order further weakened the basis for appellate intervention.
4. The discretionary assessment nevertheless had to recognise the wife’s concerns for her youngest son, who remained immature despite being 19, and the serious illness from which she had suffered. Those matters did not displace the importance of finality in ancillary relief litigation.
5. Finality was particularly important in the context of prolonged proceedings. The court also had to take account of the other party’s legitimate interest in bringing the litigation to an end. The formal order was: application for permission to appeal refused.

• Court of Appeal (Civil Division): Permission to appeal was refused.
• Reading County Court: His Honour Judge Catlin refused the wife’s application to vary the ancillary relief order on 26 October 2001.
• Earlier ancillary relief proceedings: The District Judge settled the financial outcome, and Judge Catlin subsequently allowed the wife’s appeal and made the capital and periodical payments order.