Bright v Bright

In family proceedings, an appeal from a district judge’s order proceeds as of right under the family proceedings rules; permission is not required. The appellate procedure is by way of rehearing, as explained in Cordle v Cordle [2002] 1 FCR 97. A procedural error in treating the matter as an application for permission does not require remittal where the proposed appeal has no real prospect of success. An appellate court will not ordinarily interfere with the first-instance judge’s finding about what was placed before that judge where the evidence cannot realistically support a contrary conclusion. Separate civil claims arising from an agreement may remain available even though the matrimonial proceedings have concluded. Alleged solicitor conflict does not provide a separate ground of appeal without showing that it affected the proceedings.

Following the dissolution of a long marriage, the parties obtained a consent order dismissing their claims for financial provision and property adjustment. The husband later sought to reopen or vary that order so that a separate agreement concerning payments connected with business assets would be incorporated into it. The district judge found, on reflection, that the agreement had not been placed before him when the consent order was made, and rejected the application. A circuit judge treated the matter as an application for permission to appeal and refused permission. The husband applied to the Court of Appeal. The central issues were whether the appeal route had been wrongly characterised, whether the district judge’s factual conclusion could be challenged, and whether alleged conflict by the wife’s solicitors affected the proceedings.

Application dismissed. Lord Justice Ward held that the circuit judge had adopted the wrong procedure. In family proceedings, unlike ordinary civil proceedings under the Civil Procedure Rules, an appeal from a district judge to a circuit judge remains an appeal as of right. The procedure on that appeal is by way of rehearing, following Cordle v Cordle [2002] 1 FCR 97, rather than a fresh exercise of discretion.

1. The procedural error did not justify remitting the matter. The husband’s proposed appeal had no real prospect of success, so there was no useful purpose in allowing the litigation to continue.
2. The district judge had ultimately found that the separate agreement was not before him when the consent order was made. An appellate court could not realistically substitute a contrary conclusion, particularly where the issue depended on the judge’s own recollection of what occurred before him.
3. The matrimonial order therefore remained effective as a clean-break dismissal of the parties’ claims. This did not determine whether the husband might bring separate civil proceedings to recover sums allegedly due under the agreement or as assignee of Tradeclear Ltd’s judgment debt.
4. The alleged conflict of interest involving the wife’s solicitors was a matter for the relevant professional bodies. On the material before the court, it did not affect the procedural validity of the proceedings or create a separate ground of appeal.

The application for permission to appeal was dismissed. There was no order as to costs, and a transcript was to be supplied at public expense.

• Sheffield County Court: District Judge Maw made the consent ancillary-relief order and later rejected the application to reopen or incorporate the separate agreement.
• Sheffield County Court: Her Honour Judge Carr, on 11 April 2002, treated the matter as an application for permission to appeal and refused permission.
• Court of Appeal (Civil Division): The application for permission to appeal was dismissed. The Court held that the permission procedure had been wrongly used but that the proposed appeal had no real prospect of success.