Mark v Mark

When deciding whether to grant permission to appeal, the court must balance proportionality and the costs of further litigation against the importance of resolving a pure point of law. Where the issue has general significance and concerns the court’s fundamental jurisdiction, substantial existing costs do not necessarily justify refusing permission. The court may also qualify permission by directing the parties to attempt mediation before taking further steps, particularly in family litigation where the dispute is principally financial.

Hughes J determined a dispute concerning whether the husband’s petition for dissolution had a jurisdictional basis. He accepted that the wife could claim a domicile of choice in England and Wales despite uncertainty about the lawfulness of her immigration status, and rejected the husband’s contrary submission. Permission to appeal was initially refused, although the judge recognised that the issue was a pure point of law of general significance.

The husband also challenged a subsequent costs order. Applications concerning both decisions came before the Court of Appeal. The central issue was whether permission should be granted notwithstanding the parties’ very substantial costs and the possibility that further financial proceedings would follow.

1. The Court of Appeal granted permission to appeal in relation to both the principal judgment and the costs judgment. The substantive issue concerning domicile and jurisdiction was not determined at this hearing.
2. Lord Justice Thorpe held that the court had to balance two powerful considerations. On one side was proportionality, given that the parties had already incurred costs approaching £2 million and that further litigation was likely. On the other was the need to resolve a pure legal question of general significance concerning the jurisdiction to dissolve the marriage and the basis for making financial orders.
3. The fundamental jurisdictional character of the issue, together with the conflicting lines of authority considered below, meant that the Court of Appeal could not properly avoid deciding it merely because the litigation had become disproportionately expensive.
4. Thorpe LJ nevertheless strongly criticised the parties’ continued litigation and emphasised the importance of mediation as an alternative to litigation in family cases, particularly where the underlying dispute was essentially financial.
5. Permission was therefore qualified by a direction that no further step be taken in the appeal until each party had responded fully to an invitation to mediate. The mediation was to be conducted with a mediator appointed by the court, within the Court of Appeal ADR scheme and administered through the office lawyer responsible for mediation. Lord Justice Potter and Mr Justice Munby agreed.

1. Court of Appeal (Civil Division): Applications relating to the principal judgment and the costs judgment were heard. Permission to appeal was granted, subject to a direction requiring the parties to engage with mediation before taking further steps.
2. High Court: Hughes J held that the wife’s doubtful immigration status did not prevent her acquiring a domicile of choice in England and Wales. He refused permission to appeal but made a subsequent costs order which was also challenged.