Wildin v Wildin

Permission for a second appeal requires the high threshold in the Civil Procedure Rules 1998, rule 52.13(2): an important point of principle or practice, or another compelling reason. The provision reflects the need to avoid prolonging litigation after a first appeal. A litigant who consciously declines to appeal an interlocutory ruling and allows substantive proceedings to continue faces particular difficulty obtaining an extension of time. A proposed appeal also lacks a real prospect of success where the excluded evidence would not cure the central evidential deficiencies. In ancillary-relief proceedings, transactions with connected persons that purport to reduce a party’s resources or maintenance capacity require critical scrutiny. Documentary evidence, company control and actual expenditure may outweigh formal agreements and an asserted salary.

The husband sought permission to appeal against two orders made by His Honour Judge Barclay in the Bristol County Court. The judge dismissed his out-of-time appeal from District Judge Thomas’s order refusing a downward variation of periodical payments. He also refused an eight-month extension of time to appeal Deputy District Judge Humphreys’s interlocutory refusal of permission to call the parties’ adult children as witnesses.

The proposed second appeal alleged procedural unfairness and challenged findings that agreements involving the husband, his children and related companies did not reflect his true financial position. The central issues were whether the second-appeal threshold was met, whether time should be extended, and whether the proposed evidence could materially affect the substantive outcome.

1. Overall disposition. The application for permission to appeal was refused. Both proposed appeals were second appeals, so the husband had to satisfy the high threshold in rule 52.13(2) of the Civil Procedure Rules 1998.
2. Second-appeal threshold. The Court of Appeal would not grant permission unless the proposed appeal raised an important point of principle or practice, or there was some other compelling reason for it to be heard. The rationale was to prevent undue prolongation of litigation after an earlier appeal or attempted appeal. Neither limb of the proposed appeal met that threshold.
3. Interlocutory ruling and delay. The transcript showed that the husband had sought permission to call the children, and that the deputy judge had refused it. The husband had consciously decided not to appeal at that stage, asking only that the refusal be noted for possible future use. He then allowed the substantive proceedings to proceed and sought an extension eight months out of time. The circuit judge was entitled, and correct, to refuse the extension. Any difficulty caused by the omission of the refusal from the drawn order was aggravated by the husband’s failure to press promptly for its correction.
4. Materiality of the proposed evidence. The children’s later statements largely supported the husband’s account that they had entered the agreements freely and undertaken more of the business work. They did not address the central deficiencies identified by District Judge Thomas, namely the absence of independent documentary evidence of a genuine reduction in income and the inconsistency between the asserted salary, company arrangements and the husband’s actual expenditure. The fresh-evidence application was therefore an impermissible back-door attempt to cure the late interlocutory appeal and had no real prospect of changing the result.
5. Financial arrangements. Courts must critically scrutinise transactions presented as reducing a maintenance debtor’s ability to meet obligations, particularly transactions with connected persons. The agreements, the husband’s continuing control of the companies and the substantial expenditure attributed to him justified the district judge’s rejection of the asserted reduction in income. The substantive appeal consequently had no real prospect of success.

Order: Application refused. The wife could proceed with her judgment summons.

• Court of Appeal (Civil Division): On 6 February 2007, Lord Justice Wilson refused the husband’s application for permission to bring two proposed second appeals.
• Bristol County Court: On 28 November 2006, His Honour Judge Barclay dismissed the husband’s out-of-time appeal against the substantive variation decision and refused an extension of time for the interlocutory appeal.
• Gloucester County Court: District Judge Thomas had refused the husband’s application to reduce periodical payments on 9 March 2006.
• Interlocutory stage: On 14 October 2005, Deputy District Judge Humphreys refused permission for the husband to call the parties’ adult children as witnesses.