Farargy v Farargy

Permission to appeal may be refused where a technically valid criticism would achieve little in the context of the litigation as a whole. The court should consider practical benefit, the prospect of an imminent final hearing resolving all issues, the availability of adjustment in the final financial order, and the risk of strategy, waste or immaterial satellite litigation. A judge’s statutory jurisdiction must nevertheless be correctly identified. The court accepted that the only relevant statutory power was under section 22 of the Matrimonial Causes Act 1973, which the judge had expressly disavowed. That jurisdictional error did not justify fuller appellate review when the impugned order had produced no practical benefit or detriment and the substantive issues were to be determined at the final hearing.

The husband sought permission to appeal against an order made by Singer J on 28 July 2005 in ancillary relief proceedings. At an earlier hearing, counsel had agreed a mechanism by which the wife could draw on a bond to meet short-term needs, thereby avoiding an application for maintenance pending suit. The husband later argued that the agreement did not create an obligation enforceable within the court’s statutory jurisdiction. Singer J rejected the submission and ordered that the husband abide by the agreement, although he expressly disavowed the power under section 22 of the Matrimonial Causes Act 1973. The central issue was whether permission should nevertheless be granted in light of the wider litigation and the anticipated final hearing.

1. Permission refused. The Court of Appeal unanimously refused permission to appeal and ordered the respondent’s costs.
2. The court accepted the force of the husband’s jurisdictional criticism. The judge’s only identified statutory power to make interim provision was under section 22 of the Matrimonial Causes Act 1973, but he had expressly disavowed reliance on that provision. The criticism of the legal basis of the order was therefore valid.
3. Permission remained a matter of discretion and proportionality. In family litigation, the court should assess an application in the context of the proceedings as a whole and by reference to practical realities. Relevant considerations included that the order had given the wife no benefit, imposed no demonstrated detriment on the husband, and concerned short-term support that could be considered in the final financial determination.
4. The frustrated hearing was expected to be followed by a substantial final hearing in the Family Division, at which the beneficial ownership and deployment of the relevant funds, and all other issues, could be conclusively determined. Any necessary adjustment for unpaid interim support could be made in the final capital award.
5. The court should not admit a case to fuller review where, despite technical validity, the challenge appeared capable of being strategy, waste or immaterial to the ultimate determination. The disproportionate expenditure already incurred in the litigation reinforced that conclusion.

• Court of Appeal (Civil Division): Permission to appeal was refused on grounds of discretion and proportionality. The court accepted that the jurisdictional criticism of the order had force.
• Family Division: Singer J made an order on 28 July 2005 requiring the husband to abide by the mechanism agreed at an earlier hearing for the wife’s short-term financial needs.