Foster v Foster

Permission is required for a second appeal from a county court or High Court decision made on appeal. Permission should be granted only where the proposed appeal raises an important point of principle or practice, or where there is another compelling reason for the Court of Appeal to hear it. A proposed appeal that merely re-argues factual findings, challenges a case-management discretion, or relies on material that was available at the original hearing does not ordinarily meet that threshold. A later change in a former spouse’s living arrangements will not necessarily constitute a new event permitting a further appeal under the principles in Barder v Caluori [1988] AC 20. Questions concerning time for payment of a matrimonial lump sum are matters of enforcement rather than grounds for permission to appeal.

District Judge Evans ordered Robert Foster to pay Cindy Foster a lump sum of £75,000 under the Matrimonial Causes Act on a clean-break basis. The county court dismissed Mr Foster’s appeal on 30 November 2001. He then applied to the Court of Appeal for permission to appeal out of time.

The proposed grounds challenged the findings about his income, assets and ability to pay; the refusal to admit tax documents and other additional material; the finding concerning Mrs Foster’s relationship; the duration of his payment obligations; alleged non-disclosure by Mrs Foster; and the time available for payment. The central issue was whether those grounds satisfied the second-appeal threshold in rule 52.13.

The application for permission to appeal was dismissed. There was no order for costs. The court would have extended time if permission had otherwise been appropriate, but lateness was not the reason for refusal.

1. Second-appeal threshold. Rule 52.13 required permission, and permission could be granted only if the appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it. That was a high threshold.
2. Factual and evidential challenges. The proposed attack on the assessment of income, business expenditure, assets and drawing capacity was an attempt to re-argue the facts. The county court judge had been entitled to refuse new documents, including P60s, because they had been available for the original hearing. The discretion had been exercised lawfully.
3. Approach on the first appeal. Applying Cordle v Cordle [2002] 1 FCR 97, the county court judge correctly looked back to determine whether the district judge had erred. The judgment also indicated that the same conclusion would have been reached under the earlier approach.
4. Alleged new event. Evidence that Mrs Foster was living with her boyfriend would not constitute a new event capable of supporting a further appeal under the principles in Barder v Caluori [1988] AC 20, particularly since the district judge had accepted that she had no present intention to cohabit or marry.
5. Other grounds. The contention that payment should end when the youngest child reached majority misunderstood the purpose of a spouse’s order under the Matrimonial Causes Act. Alleged non-disclosure had already been raised and taken into account. The request for more time to pay concerned enforcement and did not justify permission or a further extension.

1. Court of Appeal (Civil Division): permission to appeal out of time from the county court’s appellate decision was refused under rule 52.13; no order for costs.
2. Ipswich County Court: on 30 November 2001, His Honour Judge Thompson dismissed Mr Foster’s appeal from the district judge’s lump-sum order.
3. District Judge Evans: on 20 June 2001, ordered Mr Foster to pay Mrs Foster £75,000 under the Matrimonial Causes Act on a clean-break basis.