Gloucester-Trotman v Gloucester-Trotman

On an application for permission to bring a second appeal from an order upholding a committal order, permission is confined to cases raising an important point of principle or practice or another compelling reason. The Court of Appeal reviews for material error of law, or a discretionary conclusion plainly outside reasonable disagreement. An undertaking given under section 46(1) of the Family Law Act 1996 is enforceable as a court order under section 46(4). The civil standard applies to proceedings under the Act, while breach of an undertaking in committal proceedings must be proved beyond reasonable doubt. Article 6 requires a fair hearing but does not itself require publicly funded representation for an unmeritorious appeal.

The appellant sought permission for a second appeal against an order of HHJ Rylance, sitting in Reigate County Court, which dismissed his appeal from a district judge’s order for a suspended committal. The underlying proceedings concerned competing claims to a property and orders made under the Family Law Act 1996. The district judge found that the parties were connected persons, that an undertaking not to interfere with marketing the property as a rental had been breached by granting a low-rent tenancy, and imposed a suspended 28-day term. The appellant challenged jurisdiction, the effect and explanation of the undertaking, the burden and standard of proof, and compliance with Article 6. The central question was whether the proposed appeal met the second-appeal threshold and disclosed a material error of law.

1. Disposition. Lord Justice Wall refused the application for permission. It failed the second-appeal threshold and, in any event, disclosed no material error of law.
2. Where a circuit judge upholds a committal order made by a district judge, any further appeal is a second appeal. Permission requires an important point of principle or practice or some other compelling reason. On a permission application, the Court of Appeal asks whether the lower judge made a material error of law, or whether a discretionary conclusion was plainly outside the ambit of reasonable disagreement.
3. The finding that the parties were connected persons was a factual finding properly open to the district judge. The appellant had been represented by counsel when he gave the undertaking, had proffered it after negotiations, and was found to understand its terms. Under section 46 of the Family Law Act 1996, undertakings are specifically provided for, and section 46(4) makes an undertaking given under subsection (1) enforceable as if it were an order of the court.
4. The district judge was entitled to find that the grant of a three-year, low-rent tenancy to the appellant’s girlfriend frustrated the undertaking not to interfere with marketing the property as a rental. The breach was proved beyond reasonable doubt. The criminal standard applies to committal proceedings; the civil standard applies to matters under the Family Law Act 1996, and the two standards must not be confused.
5. The suspended term of 28 days was not disproportionate. The appellate court could not revisit factual findings properly made below in the absence of an error of law.
6. The European Convention on Human Rights supplements English law. Article 6 required fair hearings, and the relevant hearings were fair because the appellant was represented at the material earlier stages and had a full opportunity to present his case. The absence of publicly funded representation on the appeals did not establish a breach of Article 6.

1. Court of Appeal (Civil Division): On 29 July 2008, the application for permission to appeal was refused: [2008] EWCA Civ 959.
2. Reigate County Court: HHJ Rylance dismissed the appellant’s appeal against the district judge’s committal order on 29 April 2008.
3. District judge: Found a breach of an undertaking and imposed a suspended term of imprisonment for 28 days.