Hall v Hall

A court may take robust steps to make an avoidant litigant engage with proceedings, but an unless order must remain within the court’s lawful discretion and must not impose a plainly wrong substantive outcome. Delay may justify procedural or costs sanctions, but cannot by itself justify a disproportionate denial of financial relief. Manifest injustice is a compelling reason to permit a second appeal despite the restriction in section 55 of the Access to Justice Act 1999. Defective orders should be set aside and the financial issues determined on complete and updated information.

This was a second appeal from Basingstoke County Court in ancillary financial relief proceedings following the parties’ divorce. The district judge made an order transferring all known assets to the husband when the wife failed to engage with the proceedings. The wife later applied to set it aside, but that application was dismissed on 30 January 2007. The circuit judge refused her application to adduce evidence and dismissed her appeal on 1 August 2007.

The Court of Appeal considered whether the wife’s delay and the need for finality justified leaving the order in place, and whether permission should be granted despite section 55 of the Access to Justice Act 1999.

Appeal allowed. The Court of Appeal granted permission for the second appeal because the wife had suffered manifest injustice. It set aside the county court orders and directed that the case be restored to a proper course.

1. A second appeal may proceed despite the statutory restriction where correction of manifest injustice provides a compelling reason for permission.
2. A judge may use tough case-management measures to compel an avoidant litigant to engage. Those measures must stop at an unless order framed to give the applicant the relief properly sought. A judge cannot make an order that he recognises as plainly wrong, even where the objective of securing engagement is legitimate.
3. The order transferring all known assets to the husband was impermissible. It was outside the district judge’s discretion under section 25 of the Act. The subsequent refusal to set it aside, and the circuit judge’s dismissal of the wife’s appeal and refusal to admit her evidence, compounded the injustice.
4. Although a court may impose finality and penalise delay, the penalty is more safely expressed in costs. Denying a wife an evident entitlement to equality after a long marriage was disproportionate to her tardy engagement. The court could not determine the final financial position because periodical payments and other financial details remained unresolved.
5. The matter was referred to Coleridge J for directions concerning updated Forms E, preparation for trial and the future conduct of the case. The parties were permitted to write suitable corrections into the order.

1. Court of Appeal (Civil Division) — In [2008] EWCA Civ 350, allowed the appeal, set aside the county court orders and referred the future conduct of the case to Coleridge J.
2. Basingstoke County Court — The district judge made orders on 6 April 2006 and 30 January 2007. The circuit judge dismissed the wife’s appeal on 1 August 2007.