Beighton v Beighton

In a second-tier appeal, section 55 of the Access to Justice Act 1999 requires consideration of whether the proposed appeal raises an important point of principle or practice, or whether there is another compelling reason for permission. Where technical arguments depend on the precise reasoning below, the relevant lower-court judgment should be available before permission is determined. If the respondent has not been heard, the application may be adjourned on notice for an oral hearing so that possible misunderstandings can be addressed.

Mrs Beighton sought permission to appeal against an order made by His Honour Judge Bellamy on 8 March 2005 in ancillary relief proceedings. Judge Bellamy had heard appeals from District Judge Cleary’s order of 30 September 2004, made after a four-day hearing.

The proposed appeal concerned the treatment of matrimonial assets, including a family company, the husband’s income from intended share transfers, the balance between equality and reasonable needs, and the five-year periodical payments order. The husband was absent and unrepresented. The central issue was whether the proposed points could satisfy the second-tier permission threshold.

The court did not grant or refuse permission to appeal. It adjourned the application for an oral hearing on notice to the husband.

1. Applicable threshold. This was a second-tier appeal because an appeal had already been heard by the county court judge. Under section 55 of the Access to Justice Act 1999, permission required an important point of principle or practice, or some other compelling reason.
2. Potential issues. The court identified arguable concerns about the treatment of the family company, the husband’s continuing income, and whether income derived from the parties’ capital had been treated as ordinary income. It also considered whether the five-year periodical payments order was consistent with the parties’ agreed aim of equality, rather than an approach focused predominantly on the wife’s reasonable needs. The court could not determine with confidence whether these points would overcome the permission threshold.
3. Further material and hearing. The judgment of District Judge Cleary had not been supplied. The court considered it important that the document be available to the judge who finally considered permission. An oral hearing on notice was also required so that the husband could respond and correct any misunderstanding which might otherwise be fatal to the proposed appeal.
4. Order. The permission application was adjourned for an oral hearing listed for one and a half hours. There was no order for costs.

• Birmingham County Court: District Judge Cleary made an ancillary relief order on 30 September 2004 after a four-day hearing.
• Birmingham County Court appeal: His Honour Judge Bellamy heard appeals by both parties and made an order on 8 March 2005 which altered the provision in the husband’s favour.
• Court of Appeal (Civil Division): In [2005] EWCA Civ 1100, Mrs Justice Black adjourned the wife’s permission application on notice to the husband. There was no order for costs.