Radmacher v Granatino

Permission to appeal may be made conditional under CPR 52.3(7), but a condition requires a compelling reason. A compelling reason may arise where an appellant has persistently disobeyed financial orders and moved assets so as to frustrate enforcement, provided the condition does not stifle the appeal.

The Court of Appeal may also order security for appeal costs under CPR Part 25 in an appeal from family proceedings. The Family Proceedings Rules 1991 govern proceedings in the High Court and county courts, not appeals in the Court of Appeal.

The wife sought permission to appeal against Baron J's financial orders following divorce, including a lump sum of £5.56 million and provision for the parties' children. The principal substantive issue concerned the weight given to a German prenuptial agreement which excluded financial claims between the spouses.

After judgment, the wife failed to pay the lump sum and periodical payments, did not comply with an asset-disclosure order and appeared to have moved substantial funds. At the oral permission hearing, the Court of Appeal considered whether permission should be granted conditionally and whether the wife should provide security for the husband's appeal costs.

1. Permission to appeal was granted, subject to conditions. The wife had a reasonable prospect of successfully challenging Baron J's orders, and the proposed appeal raised an important point of principle concerning the prenuptial agreement. All grounds of appeal could therefore proceed.

2. Although CPR 52.3(7) does not expressly require a compelling reason before permission is made conditional, the same threshold applies as under CPR 52.9. CPR 52.9 governs the imposition or variation of conditions after permission has already been granted, whereas CPR 52.3(7) governs conditions attached when permission is granted.

3. A compelling reason existed. The wife had not paid the lump sum, interim periodical payments or child maintenance. She had failed to disclose the location of her assets and had apparently moved substantial funds. Her conduct demonstrated an intention to frustrate enforcement if the appeal failed. Requiring security would not stifle the appeal because her resources were very substantial.

4. As conditions of permission, the wife was required within 28 days to place £6,241,341 in an account in England and Wales held jointly by the parties' solicitors. This comprised the lump sum, accrued interest, provision for German accommodation and estimated costs arising from enforcement-related hearings. She was also required to discharge arrears of periodical payments within 14 days and keep future instalments no more than 14 days in arrears. While those conditions were satisfied, execution of Baron J's capital orders was stayed. Non-compliance would cause permission to lapse.

5. The Court of Appeal had jurisdiction under CPR Part 25 to order security for the costs of the appeal. The Family Proceedings Rules 1991 apply only to family proceedings in the High Court or county courts. The wife's steps concerning her assets would make enforcement of a costs order difficult, and security was just in all the circumstances. She was therefore ordered to provide £103,837 as security for the husband's appeal costs.

Lawrence Collins LJ agreed entirely with Wilson LJ.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1304, granted permission to appeal subject to financial and payment conditions, stayed execution of the capital orders while those conditions were satisfied, and ordered security for appeal costs.
• Principal Registry of the Family Division: Baron J ordered the wife to pay a £5.56 million lump sum and to make financial provision for the husband and children. Permission to appeal and an unconditional stay were refused. No citation is stated.