Minwalla v Minwalla & Ors

Permission to appeal may be refused without deciding a pure question of law where the proposed appeal is an unsuitable vehicle. Relevant considerations include the short remaining life of the order, an imminent final hearing at which the issue can be determined or provisional conclusions revisited, the absence of substantial practical prejudice, and the risk that an adjournment will generate disproportionate costs. The court may weigh procedural fairness against the wider reality of the litigation. An applicant who pursues an appeal which is inappropriate in light of the procedural timetable bears the resulting costs risk.

The husband sought permission to appeal from an order made by Singer J on 15 June 2004 assessing his maintenance pending suit obligations to his wife and her solicitors. The proposed appeal challenged the jurisdiction to include monthly sums effectively payable to solicitors. The husband also sought an adjournment of the Court of Appeal hearing, asserting that he had not received notification that the adjournment request had been refused. Existing first-instance decisions had recognised the jurisdiction, including A v A and G v G [2003] 2 FLR 71, but the Court of Appeal had not directly ruled on it. The central issue was whether this application was a suitable vehicle for determining that point shortly before the final ancillary relief hearing.

The Court of Appeal unanimously dismissed the application for permission to appeal. Lord Justice Thorpe gave the reasons, with Lord Justice Wall and Mrs Justice Black agreeing.

1. The proposed appeal concerned whether a maintenance pending suit order could include monthly payments effectively made to the wife's solicitors. The point was a pure question of law and merited consideration. However, the court noted that the jurisdiction had only been recognised in first-instance decisions, including A v A and G v G [2003] 2 FLR 71. The application was not a suitable vehicle for resolving the issue because the order had a very brief expected life and the final hearing was imminent.

2. Although the court considered that ordinary fairness required an assumption that the husband had not received the notification refusing his adjournment request, that procedural difficulty did not require the permission hearing to be adjourned. The final ancillary relief hearing was listed for 22 November 2004, and a separate adjournment application was due before Singer J. The first-instance judge could make a realistic assessment of prospective liability and, if necessary, conduct a retrospective inquiry into the provisional assessment.

3. Thorpe LJ applied an overall proportionality assessment. The refusal caused no substantial prejudice concerning the maintenance order, particularly because little had been paid, costs of the inquiry had not been ordered, and no enforcement proceedings had begun. By contrast, an adjournment would inevitably increase the wife's already substantial litigation costs and risk supporting a strategy of exhausting assets available within the jurisdiction. The husband had assumed the costs risk of pursuing an inappropriate application.

4. The application was dismissed. The applicant was ordered to pay the defendant's costs, subject to detailed assessment.

1. Court of Appeal (Civil Division): Application for permission to appeal dismissed on 3 November 2004; applicant ordered to pay the defendant's costs, subject to detailed assessment.
2. High Court (Family Division): Singer J made a maintenance pending suit order on 15 June 2004 requiring monthly payments to the wife and effectively to her solicitors.