Shah v Shah

An appellate court may determine an appeal in the appellant’s absence where the circumstances show that further time would not advance a fair hearing and the respondent would continue to suffer cost and anxiety. In family financial proceedings, appellate intervention is confined to correcting manifest factual or legal error, or an order that no reasonable district judge could have made. A further appeal from a circuit judge’s determination faces the statutory threshold in Access to Justice Act 1999, section 55: permission requires an important point of law or principle, or another compelling reason.

The case concerned several applications by a wife arising from ancillary relief proceedings in the Bow County Court. The district judge had made a financial order after a lengthy trial. A circuit judge subsequently refused to transfer the matter to the Family Division, granted decree absolute subject to an undertaking not to enforce the financial order pending the appeal, and later dismissed the wife’s appeal.

The wife, who had significant mental health difficulties and was not present at the appeal hearing, sought permission to challenge those decisions and complained of corruption and procedural unfairness. The central issues were whether the circuit judge could determine the appeal in her absence and whether any proposed appeal had a realistic prospect of success or satisfied the statutory permission threshold.

1. Applications dismissed. The Court of Appeal refused permission to appeal against the orders made by His Honour Judge Bradbury. The applications concerning transfer to the Family Division and decree absolute were transparently hopeless. The judge had properly exercised his discretion in granting decree absolute after obtaining an undertaking that enforcement would not proceed pending determination of the outstanding appeal.
2. A judge deciding whether to proceed in an appellant’s absence must consider fairness on both sides. The relevant discretion requires attention not only to the appellant’s opportunity to present the case, but also to the respondent’s continuing costs and anxiety. On the facts, allowing a further period would not have made a practical difference, since the applicant’s conduct showed that the additional time would be used to repeat allegations and complaints rather than advance the appeal.
3. The appeal against the district judge’s financial order had never had realistic prospects of success. Referring to Cordle v Cordle, Lord Justice Thorpe stated that the circuit judge’s appellate role was confined to correcting manifest error, whether of fact or law, or an order which no reasonable district judge could have made. No such error or unreasonable order had been identified.
4. Section 55 of the Access to Justice Act 1999 created a formidable further hurdle. The applicant had to demonstrate an important point of law or principle, or some other compelling reason for permission to be granted. The proposed grounds disclosed nothing of substance meeting that standard.
5. Mr Justice Ferris agreed. The order was that the applications for permission to appeal be refused.

• Court of Appeal (Civil Division): Applications for permission to appeal refused.
• Bow County Court: The district judge made the ancillary relief order. His Honour Judge Bradbury later refused transfer, granted decree absolute subject to an undertaking, and dismissed the wife’s appeal.