Day v Day

In a permission-to-appeal application, the Court of Appeal may defer determination where the material shows a realistic possibility of compromise and the applicant is willing to re-enter settlement discussions. The court may facilitate that process by inviting the respondent to participate in supervised mediation. Mediation requires reciprocal concessions. A party cannot approach it on the basis that the other side must simply accept its position. Consideration may be given to contingency provision, such as a charge on an estate, where that could assist settlement.

Edyth Agnes Day, appearing in person, applied for permission to appeal an order made by His Honour Judge De Mille in the Peterborough County Court on 13 June 2002. That order dismissed applications for leave to appeal orders made in 1989 and an application issued in November 2001 to review a consent order made on 21 September 1999. Brian Benedict Day did not appear and was unrepresented. The central issue was whether permission should be determined immediately or whether the parties should first be given an opportunity to pursue mediation after Mrs Day indicated that she was willing to re-explore consent.

Lord Justice Thorpe did not determine whether permission to appeal should be granted. He considered that the prospects of permission were not strong, having regard to the lower court’s account of Mrs Day’s offer to compromise and the substantive response made by her former husband. Those matters indicated that a potential compromise might bring the long-running dispute to an end.

1. The application for permission to appeal was adjourned indefinitely. A letter was to be sent to Mr Day in Spain inviting him to participate in mediation under the supervision of the Court of Appeal.
2. The applicant was reminded that mediation requires give and take on both sides. She needed to approach the process on the basis that her former husband might have honourable intentions, including by offering contingency provision secured by a charge on his estate to meet the remote possibility that his present wife might predecease him.
3. The court directed that a transcript of the judgment be prepared at public expense and enclosed with the invitation to Mr Day.

Order: application adjourned as above.

1. Court of Appeal (Civil Division): On 3 December 2002, Lord Justice Thorpe adjourned Mrs Day’s application for permission to appeal indefinitely and directed that the respondent be invited to participate in supervised mediation.
2. Peterborough County Court: His Honour Judge De Mille made an order on 13 June 2002 dismissing Mrs Day’s applications for leave to appeal earlier orders and her application to review the 21 September 1999 consent order.