Blades v Phillips

Permission to appeal against a financial remedy variation order should not be granted where the challenge concerns only quantum, the judge made no error of law, and the award, though at the bottom of the permissible bracket, was not plainly wrong. An application under Matrimonial Causes Act 1973, section 31.7, to increase continuing periodical payments is distinct from an application involving capitalisation and a clean break. Comparisons with the latter do not, without more, establish that the periodical-payments award is plainly wrong.

The appellant wife sought permission to appeal an order made by the President of the Family Division in January 2008. The order determined her application under section 31.7 of the Matrimonial Causes Act 1973 for increased periodical payments under an earlier consent order. The President reduced her proposed annual budget and compensation claim and awarded her £65,000 per year, in addition to provision for the children.

The President refused permission. A renewed paper application was refused by Wilson LJ on 23 May 2008. The application was then reviewed orally by the Court of Appeal. The central question was whether the award was so low as to be plainly wrong and therefore capable of supporting a quantum appeal.

Thorpe LJ gave the reasons for the court. Rix LJ agreed. The application for permission to appeal was refused.

1. The proposed appeal was, in substance, a challenge to the amount awarded. It raised no point of principle and no complaint that the President had misdirected himself in law. The relevant question was whether the award was so low as to be plainly wrong.
2. The application under section 31.7 of the Matrimonial Causes Act 1973 concerned an uplift of continuing periodical payments. It was not an application in which the parties were seeking to achieve a capitalised clean break. The court had to assess the order in that procedural and financial context.
3. The comparison with McFarlane v McFarlane [2004] EWCA Civ 872 did not establish arguable plain wrongness. That case involved a post-dissolution application which had been quantified afresh at successive stages, including in the Court of Appeal and the House of Lords. The present application was materially different.
4. The court could take account of the proportion of the husband's current net income represented by the award, together with the anticipated future issue of capitalisation. The award to the wife, plus the children's provision, represented about 32% of the husband's current net income, broadly comparable with the earlier consent order. The award was at the bottom of the bracket, but remained within it.
5. The observations of Lord Nicholls in Miller v Miller [2005] EWCA Civ 984 and McFarlane did not make the present award plainly wrong. Any larger compensation uplift might affect a future capitalisation debate, but that prospective consideration did not justify permission for this quantum appeal.

• Court of Appeal (Civil Division): renewed oral application for permission to appeal refused; the earlier refusals were supported. [2008] EWCA Civ 1401
• Court of Appeal (Civil Division): Wilson LJ refused the renewed paper application on 23 May 2008.
• High Court of Justice, Family Division: the President determined the section 31.7 application in an order made at the conclusion of a hearing in January 2008. Permission to appeal was refused.