Stanton v Stanton & Ors

The bar in section 54(4) of the Access to Justice Act 1999 applies to an appeal from a decision giving or refusing permission. It does not necessarily prevent consideration where a county court may have wrongly treated an ordinary family appeal as a permission application, although permission was not required. That possible fundamental procedural error justified permission to appeal on a limited basis. Any challenge to factual findings would require properly adduced fresh evidence.

The appeal arose from ancillary relief proceedings following divorce. By consent, the wife transferred Millfields to the husband, subject to a charge securing 50 per cent of the net equity. The charge became enforceable when the husband’s father ceased to occupy the property as his residence. District Judge Molle held that the granny annex formed part of the charged property and found that the father had ceased to occupy it. His Honour Judge Brandt treated the challenge as an application for permission to appeal and refused it. The central issues were whether that procedural approach was correct and whether the factual basis for enforcing the charge could be challenged.

Application for permission granted. The Court of Appeal confined the proposed appeal to two questions.

1. Section 54(1) of the Access to Justice Act 1999 permits rules of court to require permission for appeals. Section 54(4) prevents an appeal against a decision under that section granting or refusing permission, subject to any further application permitted by the rules.
2. Lord Justice Ward considered that the statutory bar might not apply if the county court had misunderstood the family procedural rules. Those rules might not have introduced a permission requirement for an ancillary relief order or an order enforcing such an order. If Judge Brandt had therefore treated an ordinary appeal as an application for permission, that could constitute a fundamental error requiring the Court of Appeal to intervene.
3. Permission was granted to determine whether Judge Brandt should have entertained a full appeal from District Judge Molle’s order and whether, on the facts, the order could be displaced because Reginald Stanton remained in occupation within the meaning of the consent order.
4. Ward expressed the preliminary view that the granny annex formed part of the property subject to the charge. The district judge had also made a factual finding that Reginald had ceased to occupy Millfields as his home and had no intention of returning. Ward did not finally determine those merits. He warned that any realistic challenge would require an application to adduce fresh evidence addressing Reginald’s return, present accommodation and future plans. The matter was directed to be listed before a two-judge constitution including at least one Lord Justice familiar with family work.

• Court of Appeal (Civil Division): Lord Justice Ward granted permission to appeal on 25 February 2002 and directed that the matter be listed before a two-judge constitution.
• Colchester County Court: District Judge Molle made the order enforcing the charge on 21 June 2001. His Honour Judge Brandt refused leave to appeal and later refused permission to appeal to the Court of Appeal.