G v A

At the permission stage, a realistic prospect of success justifies adjourning an application on notice, with an appeal to follow if permission is granted. Where a financial order is rewritten so that a lump sum is linked to a future transaction, the court should address whether the payment date must also be moved from a historic date. Retaining the old date without explanation may be logically inconsistent and may expose the payer to judgment-rate interest. Index-linking may be considered to preserve the intended spending power of a delayed payment, although that issue was not decided.

The father sought permission to appeal against an order made by Munby J in proceedings concerning financial provision for a child under Schedule 1 to the Children Act 1989. The original order required payment of a £20,000 lump sum and settlement of £220,000 for housing. The High Court later revised the settlement terms and specified accounting requirements for the lump sum, but left payment due by the historic date in 2005. The father argued that payment should instead be linked to acquisition of the property. The central issue was whether that challenge had a realistic prospect of success.

Application adjourned on notice. Lord Justice Thorpe held that the father’s proposed appeal had a realistic prospect of success. The application was therefore adjourned for service on the mother, with an appeal to follow if permission were granted.

1. Munby J had substantially rewritten the original financial order. He had introduced detailed settlement provisions and a future timetable, and had recast the £20,000 payment as a sum connected with the cost of moving to the settlement property.
2. Having altered the substance and operation of the order, the judge should have considered whether the historic payment date of 29 July 2005 also required alteration. The obligation concerned removal costs, which could arise only after acquisition of the property. Acquisition itself could not occur until the settlement arrangements had been completed. Retaining the historic date without explanation was difficult to reconcile with the rewritten order.
3. The refusal of permission on the basis that there was no realistic prospect of success was therefore unsustainable. The court did not finally determine whether the order should be varied.
4. Thorpe LJ recorded that retaining the historic date might permit a claim for judgment-rate interest. He also recorded the father’s willingness to have the lump sum increased by index-linking so that its future spending power matched its earlier value. These matters were left for consideration on the adjourned application or any subsequent appeal.

The matter was to be listed promptly before Thorpe LJ with at least one other judge and a one-hour time estimate.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 357, the application for permission to appeal was adjourned on notice, with an appeal to follow if permission was granted.
• High Court, Family Division: Munby J handed down judgment on 20 January 2009, revised the financial order, and refused permission to appeal on the basis that there was no realistic prospect of success.