Shuttleworth v Shuttleworth

On a second appeal, an arguable issue of general importance is insufficient by itself. Permission requires an important point of principle or practice, or another compelling reason, under the Access to Justice Act 1999. The case must also be a suitable vehicle for deciding the issue. In financial remedy proceedings, equality is a relevant consideration, but it is an overstatement to say that departure is justified only in exceptional circumstances. An appellate court may intervene in a discretionary award where the lower court misinterpreted a relevant authority and consequently gave excessive weight to an inheritance. Where the factual significance of inherited assets is contested and the marriage is not dominated by that feature, the statutory threshold is not met.

The parties’ financial dispute was first determined by District Judge Bowman, who awarded the wife 55 per cent and the husband 45 per cent of the available capital, reflecting the wife’s greater inheritance. On appeal, Hogg J substituted an equal division. The husband sought permission for a second appeal limited to the treatment of inherited assets and the basis for Hogg J’s intervention. He argued that the case raised an important unresolved point concerning inheritance and section 25(2), and that Hogg J had misdirected herself. The central issues were whether the statutory second-appeal threshold was met and whether this case provided a suitable vehicle for examining the wider question.

Lord Justice Thorpe gave the reasons, and Lord Justice Scott Baker agreed. The renewed application for permission to appeal was refused.

1. Section 55 of the Access to Justice Act 1999 deliberately restricts a litigant’s right to a second appeal. Permission required an important point of principle or practice, or some other compelling reason. The obstacle was stringent because Parliament had ordinarily guaranteed one appeal only.
2. The court accepted that Hogg J’s summary of the authorities overstated the significance of equality. In particular, describing departure from equality as permissible only in exceptional circumstances went further than the authorities justified. Hogg J had also overstated her criticism of the district judge by describing the exercise of discretion as plainly wrong.
3. Those observations did not invalidate Hogg J’s intervention. The proper basis for intervention was her conclusion that the district judge had misinterpreted Lord Nicholls in White v White [2001] AC 596, giving excessive attention and weight to the wife’s inheritance and contribution. That was a legitimate basis for appellate intervention.
4. The proposed appeal was not an appropriate vehicle for resolving the wider treatment of inherited assets. The factual significance of the inherited property was contentious and not self-evident. The case was not dominated by inheritance. Hogg J’s reasons relied on the early receipt of the inheritances, their enhancement through joint effort and decision-making, the joint acquisition and funding of the family home, and the parties’ overall financial and personal contributions to the marriage.
5. Although permission might have been granted had there been no prior appeal, the case did not satisfy the stringent second-appeal threshold. The application was therefore refused.

• Court of Appeal (Civil Division). A renewed application for permission to bring a second appeal was refused. [2005] EWCA Civ 1769.
• High Court Family Division. Hogg J allowed the parties’ appeals in substance by substituting an equal division of the available assets for the district judge’s 55 per cent to 45 per cent division.
• District Judge Bowman. On 10 May 2004, the available capital was divided 55 per cent to the wife and 45 per cent to the husband.