Moses-Taiga v Oghenerume

An appeal notice may be struck out under CPR 52.9(1)(a) in an unless form where persistent breaches of maintenance or other court orders create a compelling reason under CPR 52.9(2). Conduct that deprives the opposing party of funds needed to prepare or defend the appeal, and threatens a hearing without equality of arms, can satisfy that threshold. Earlier authorities concerning conditional orders under CPR 52.9(1)(c) do not prevent an unless strike-out order under CPR 52.9(1)(a). Where CPR 52.9(3) prevents variation of permission because a party was present when permission was granted, the court may still use the strike-out power and vary a stay separately.

The respondent husband had obtained conditional permission to appeal on 14 June 2004. The conditions included substantial payments to the applicant wife's solicitors and payment of maintenance pending suit, while part of an existing maintenance order was stayed. The husband made no payments after the order, leaving arrears and jeopardising preparation for a forthcoming Family Division hearing.

The wife applied for release of £90,000 held in a solicitors' joint account and for the appeal notice to be struck out unless arrears, costs and future maintenance were paid. The central issue was whether the persistent breaches supplied the compelling reason required by CPR 52.9(2), and what procedural power and form of order were available.

Application granted. Thorpe LJ, with Potter LJ agreeing, held that the husband's persistent failure to comply with maintenance and related orders justified an unless order against the appeal notice.

1. The June order had given the husband a substantial benefit: conditional permission to appeal and a partial stay of maintenance. He ignored the clear warning that future instalments had to be paid promptly, and paid neither current maintenance nor existing arrears. The resulting lack of funds threatened the wife's ability to prepare for the Family Division hearing and prevented equality of arms.
2. Maintenance pending suit could properly include a separate monthly sum payable to solicitors for litigation preparation. That approach had precedent in A v A [2001] 1 FLR 377 and G v G [2003] 1 FLR 71. Non-payment of that element therefore obstructed the wife's proper opportunity to litigate.
3. The conduct supplied the compelling reason required by CPR 52.9(2) for exercising the strike-out power in CPR 52.9(1)(a). Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, Carr v Barr Cotton [2002] EWCA Civ 789 and Bell Electric Ltd v Aweco Appliance Systems GmbH & Co KG [2002] EWCA Civ 1501 concerned different applications under CPR 52.9(1)(c), and did not inhibit an unless order under paragraph (a).
4. Because the wife had been present when permission was granted, CPR 52.9(3) prevented reliance on paragraphs (b) or (c). The court could nevertheless strike out the appeal notice under paragraph (a), and could vary the stay separately from the permission conditions.

The court ordered payment of the £90,000 to the wife's solicitors. The appeal notice was to be struck out unless the husband paid the specified arrears, application costs and the £39,000 maintenance instalments due on 28 September and 28 October 2004.

1. Court of Appeal (Civil Division) On 14 June 2004, conditional permission to appeal was granted, together with a partial stay of the maintenance pending suit order.
2. Family Division Singer J had made orders requiring maintenance pending suit of £39,000 per month, including sums payable to the wife's solicitors.
3. Court of Appeal (Civil Division) On the present application, the court released £90,000 and imposed unless conditions, with the appeal notice to be struck out if those conditions were not met.