Stylianou v Chimarides

The Court of Appeal may determine a permission application in a party’s absence where the party knew that the application was progressing, failed to take precautionary steps to ascertain the hearing date, and sought an adjournment to an unsuitable date. A challenge to a discretionary decision granting leave to appeal out of time has no real prospect of success where the judge considered the relevant chronology and circumstances and exercised the discretion within its normal bounds. An issue for which no appealable order has been made is outside the Court of Appeal’s jurisdiction.

The parties were involved in divorce and ancillary relief proceedings. They agreed a consent order in October 2003. The wife later alleged that the husband had failed to disclose a material inheritance arising from his mother’s death and sought to set aside the order.

On 28 October 2004, Her Honour Judge Coates granted the wife leave to proceed out of time with an appeal seeking to set aside the consent order. The husband sought permission to appeal that decision. He did not attend the Court of Appeal hearing, having travelled to Greece, and sought an adjournment. He also raised alleged fraud, perjury and a proposed change of residence for the children.

The Court of Appeal dismissed the husband’s application for permission to appeal. There was no order for costs, and the transcript was directed to be expedited.

1. Proceeding in the appellant’s absence. The husband knew that his application was actively progressing and that a hearing was likely to be listed. He had not taken precautionary steps to ascertain the likely date or avoid a clash with his travel plans. The date he proposed for an adjournment was also unsuitable because the county court was due to consider the underlying setting-aside issue then. The court therefore proceeded substantively in his absence.
2. Scope of the application. The Court of Appeal was concerned only with permission to appeal against the order granting leave out of time. The proposed application concerning a change of residence was not a matter for this court because no order had been made against which an appeal could be brought.
3. Exercise of discretion. Judge Coates had given clear reasons for granting leave. She considered the chronology, the delay, the difficulties in obtaining public funding, the alleged non-disclosure and the husband’s assertions that the wife knew of the death and that he had not benefited from it. Her decision fell within the normal bounds of the discretion. The proposed appeal accordingly had no real prospect of success.

• Court of Appeal (Civil Division): dismissed the husband’s application for permission to appeal; no order for costs.
• Brighton County Court: on 28 October 2004, Her Honour Judge Coates granted leave to proceed out of time with an appeal seeking to set aside the October 2003 ancillary-relief consent order.