Turner v Turner

Under the overriding objective in rule 2.51D of the Family Proceedings Rules 1991, a circuit judge may manage an appeal arising from an order made without notice by directing that the appellant’s notice stand as an application for rehearing before the original judge. That course does not remove the litigant’s right of appeal where it first secures an inter partes ruling capable of being appealed in the ordinary way. The proper sequence is ordinarily for the district judge to hear both sides, give reasons, and leave any challenge to the resulting order for the normal appellate process. Permission to appeal was therefore refused.

Ancillary relief proceedings had concluded in 2004 with the former matrimonial home transferred to the wife, subject to the husband’s 30 per cent charge on a future sale and a deferred sale arrangement. In November 2007 the district judge approved the form of charge without a hearing and stayed an application made by the husband. The husband appealed to the circuit judge, who directed that his appellant’s notice stand as an application for rehearing before the district judge. The husband then sought permission to appeal to the Court of Appeal, arguing that this interfered with his statutory right under rule 8.1 of the Family Proceedings Rules 1991. The central issue was whether the direction was outside the circuit judge’s jurisdiction or was permissible case management under rule 2.51D.

Application refused. Lord Justice Wall held that the circuit judge’s direction was plainly within the powers conferred by the overriding objective.

1. The overriding objective in rule 2.51D of the Family Proceedings Rules 1991 requires the court to deal with cases justly and requires active case management. The court must give effect to that objective when exercising powers under, or interpreting, the ancillary relief rules.
2. Where a district judge has made an order without notice, the circuit judge may require the matter first to be reconsidered by the district judge at an inter partes hearing. Treating the appellant’s notice as an application for rehearing does not deprive the litigant of the right to appeal. It ensures that there is a ruling made after both sides have been heard which can then be appealed in the ordinary way.
3. The appropriate course was for the district judge to hold a hearing, reconsider the approved draft, and give reasons if maintaining his original view. That approach was more appropriate and proportionate than granting permission for an appeal which would ultimately require the matter to be remitted.
4. The Court of Appeal’s task on the permission application was to consider whether the circuit judge had arguably acted outside her jurisdiction. Since she had acted within the overriding objective and there was no reasonable prospect of success, permission was refused.

The application was refused.

1. Court of Appeal (Civil Division): On 12 March 2008, Lord Justice Wall refused permission to appeal.
2. Dartford County Court, circuit judge: On 8 January 2008, the husband’s appellant’s notice was directed to stand as an application for rehearing before District Judge Glover.
3. Dartford County Court, district judge: On 8 November 2007, District Judge Glover approved the form of charge without a hearing and required the husband to execute it.