B v B

For a second appeal, permission requires an important point of principle or practice, or some other compelling reason, under CPR 52.13(2). In ancillary-relief proceedings, it may be an error of principle to make a further adjustment for past income disparity after equal division of capital if the same capital depletion has already increased the equalising payment, creating a risk of double-counting. Re-attributing expenditure ordinarily requires clear evidence of wanton dissipation. The judgment also identifies serious procedural concerns where an appellate judge discusses the merits with the trial judge and relies on the trial judge’s views. These issues may justify permission despite a modest disputed sum, although the merits remain for the appeal.

The husband sought permission to bring a second appeal and an extension of time. The proposed appeal challenged a circuit judge’s dismissal, on 21 May 2008, of his appeal against a district judge’s ancillary-relief order made on 19 January 2008.

The parties had agreed in principle to equal division of their capital and pensions on a clean-break basis. The district judge nevertheless included a balancing lump sum reflecting the wife’s lower income and higher expenditure after separation. The proposed appeal raised issues of double-counting, the treatment of spent capital as income, the adjustment for expenditure, and the circuit judge’s communications with the district judge. The central issue was whether the second appeal met the permission threshold and whether time should be extended.

Disposition. Lord Justice Wilson granted permission for the second appeal and extended time for filing the Appellant’s Notice. The permission was granted with hesitation, and the husband was directed to file a written statement from his former solicitor explaining relevant aspects of the delay.

1. Under CPR 52.13(2), a second appeal requires either an important point of principle or practice or another compelling reason for the Court of Appeal to hear it. The proposed appeal satisfied that threshold sufficiently for permission to be granted.
2. The main financial issue was arguable. If equal division of existing capital had already reflected the wife’s depletion of capital during the period after separation, a further adjustment for disparity of past income could constitute double-counting. It could leave the wife with greater future resources than the husband, contrary to the agreed objective of equality.
3. The treatment of expenditure was also potentially erroneous. Wilson LJ stated that, consistently with Vaughan v Vaughan [2008] 1 FLR 1108, re-attribution of sums spent by either party is legitimate only on clear evidence of wanton dissipation. There was no suggestion that the wife had dissipated funds, and her expenditure on maintaining the matrimonial home might have been legitimate.
4. The circuit judge’s procedure raised an additional point. A written request for comments from the trial judge might arguably be legitimate in the unusual absence of advocates at the original hearing. It was more problematic for the appellate judge to discuss the merits with the trial judge on the day of the appeal and to rely on the trial judge’s confirmation when giving reasons for dismissing the appeal.
5. The modest amount potentially at stake and the delay were significant factors, but the possible errors of principle, the unusual appellate procedure, and the explanation concerning delayed receipt of the approved transcript justified allowing the application.

• Court of Appeal (Civil Division) In [2009] EWCA Civ 314, granted permission for the proposed second appeal and extended time for filing the Appellant’s Notice.
• Reigate County Court, circuit judge On 21 May 2008, dismissed the husband’s appeal against the ancillary-relief order.
• Reigate County Court, district judge On 19 January 2008, made the ancillary-relief order, including equal division of capital and pensions and a balancing lump sum.