Lyustiger v Lyustiger

A renewed application for permission to appeal must address both the procedural default and any proposed point of substance. A challenge lodged five or six months out of time requires a very strong explanation or mitigation. The doctrine of per incuriam is confined to narrow exceptions, including ignorance of relevant binding authority or statute, and rare manifest error where no further appeal is realistically available. It does not permit a party to reopen a point merely because it disputes an earlier Court of Appeal decision. The Court of Appeal had approved including legal costs within maintenance pending suit under section 22 of the Matrimonial Causes Act 1973.

The parties, Russian immigrants, married in the United States and separated shortly afterwards. Proceedings concerning divorce, recognition of a Russian divorce and their child were brought in Russia and England. In November and December 2005, Munby J made maintenance pending suit orders under section 22 of the Matrimonial Causes Act 1973, including substantial sums for the wife's legal costs.

The husband did not challenge those orders within the required time. Applications concerning both orders were filed on 26 May 2006, five and six months late. Permission was refused on paper by Wilson LJ. The husband renewed the applications, arguing that the jurisdiction to include lawyers' costs in maintenance pending suit was impermissible and that Moses-Taiga v Taiga could be reopened as given per incuriam. The central questions were whether permission and an extension of time should be granted.

1. Applications refused. The renewed applications for permission to appeal, and the associated applications for extensions of time, were hopeless.
2. The husband had been informed of the obligation to pay the November and December orders promptly. Any challenge had to reach the Court of Appeal by 20 December 2005, yet the applications were not filed until 26 May 2006. Such a cavalier disregard of the time requirements required a very strong explanation or mitigation, which had not been provided.
3. The proposed jurisdictional argument was no longer plainly arguable. Although the issue had previously been open in the Family Division and in this court, the Court of Appeal had moved towards approval of including legal costs within maintenance pending suit through McFarlane v McFarlane, Parlour v Parlour and, expressly, Moses-Taiga v Taiga. The argument that Moses-Taiga was given per incuriam could not succeed.
4. The doctrine applies only within narrow limits: ignorance of a previous decision covering the case, ignorance of a binding House of Lords decision, ignorance of a statute or rule having statutory force, or, in rare and exceptional circumstances, a manifest slip or error where there is no real prospect of a further appeal to the House of Lords. The present decision did not approach any of those exceptions.
5. The wider litigation context provided an additional reason not to prolong the dispute. The reasons given by Wilson LJ were compelling, and the answers advanced on renewal did not justify permission.

• Court of Appeal (Civil Division): Wilson LJ refused permission on paper on 23 June 2006. On renewal, Thorpe LJ and Wall LJ refused the applications and the associated extensions of time.
• Principal Registry of the Family Division: Munby J made maintenance pending suit orders in November and December 2005, including sums for legal costs. The judgment gives no citation for those orders.