Currey v Currey

At the permission stage, an applicant need show a reasonable prospect of success on at least one principal contention. Permission should not be dismissed summarily where the proposed grounds face substantial difficulties but retain realistic prospects. Challenges to discretionary ancillary-relief decisions ordinarily require demonstration that the judge was plainly wrong. The court may also emphasise the costs risks of further litigation and encourage mediation before the appeal proceeds.

The applicant sought permission to appeal two judgments of Charles J in ancillary-relief proceedings. The first determined the fair division of the spouses’ assets and income, including future occupation of the matrimonial home, a relocation payment and periodical payments. The second dealt with costs. The proposed grounds challenged the allocation of the home, the amount of the relocation payment and the refusal to make a costs order. The central issue was whether at least one ground had a reasonable prospect of success.

The Court of Appeal granted permission to appeal. Thorpe LJ delivered the principal judgment; Mance LJ agreed and added observations, and Evans-Lombe J agreed. The merits of the proposed appeal were not determined.

1. Permission threshold. The applicant had to demonstrate a reasonable prospect of success on at least one principal contention. Although each proposed ground faced considerable difficulty, the court could not dismiss the application out of hand because the prospects were not wholly unrealistic.
2. Discretionary ancillary relief. The judge had undertaken a balancing exercise concerning occupation of the matrimonial home and had exercised a broad discretion. The proposed challenge would therefore need to establish that the decision was plainly wrong. The relocation payment had also been assessed within the range indicated by the parties’ particulars of sale, while the periodical-payment award reflected additional business-relocation costs.
3. Further observations. Mance LJ considered that the reasoning about the wife’s principal concern and the absence of an equivalent risk to the husband might require examination. He also considered the proposed future arrangements for the slipway questionable, since resolving permissions and licence terms in the judgment might have been more effective than relying on future agreement.
4. Costs and mediation. The court stressed the risks and expense of a further appeal and urged serious efforts to compromise, including mediation by an experienced and qualified mediator. The formal order was that the application for permission to appeal was allowed.

1. Court of Appeal (Civil Division) — In [2003] EWCA Civ 1974, permission to appeal was granted. The court encouraged compromise or mediation and warned of the costs risks of proceeding.
2. High Court of Justice, Family Division — Charles J had delivered two judgments in ancillary-relief proceedings: one concerning the division of assets and income and one concerning costs. No citation for those judgments was stated in the judgment.