Webb v Chapman & Ors

On a renewed application for permission to appeal, the court should address freestanding legal grounds capable of succeeding despite adverse factual findings. Permission remains discretionary. The court must weigh the proposed grounds’ prospects against the financial and emotional burdens of continuing the litigation. Limited prospects do not justify allowing an appeal merely to develop an interesting socio-legal argument for a further appeal. Where the burden is disproportionate to the realistic prospects of success, the application should be refused.

This was a renewed application by Webb for permission to appeal a decision of Bournemouth County Court, following a provisional refusal on paper. The appellant argued that grounds 1 and 5 were freestanding and could succeed despite the judge’s adverse factual findings. Ground 5 concerned whether a compromise apparently intended to close the parties’ financial account prevented issues first raised and then abandoned in ancillary-relief proceedings from being pursued in a different legal context. The appellant relied on Ganesmoorthy v Ganesmoorthy [2003] 3 FCR 167. Ground 1 raised a related socio-legal argument. The central question was whether the prospects and proportionality of pursuing those grounds justified permission.

The Court of Appeal unanimously refused the renewed application for permission. Lord Justice Thorpe gave the reasons, and Lord Justice Aikens and Mr Justice Bennett agreed.

1. The earlier paper refusal had focused on the judge’s adverse factual findings and the difficulty of showing that those findings were inconsistent with conceded facts. Grounds 1 and 5 were nevertheless freestanding legal grounds and required separate consideration because, if successful, they might have led to judgment for the appellant despite those factual findings.
2. The submissions on ground 5 had some initial merit. The appellant relied on Ganesmoorthy v Ganesmoorthy [2003] 3 FCR 167. However, whether a compromise apparently intended to close the parties’ financial account nevertheless permitted issues initially pursued and later abandoned in ancillary-relief proceedings to be raised in a different legal context was a matter for the judge’s balanced assessment.
3. The appellant accepted that ground 1 depended on establishing that the judge was wrong on ground 5. Although ground 1 raised an interesting area of law and social science, ground 5 did not have sufficient prospects of success to justify proceeding.
4. Applying proportionality, the court considered that allowing the matter to proceed with limited prospects, merely to enable the socio-legal argument to be taken to the House of Lords, would impose substantial financial and emotional burdens on the litigants. Those burdens were disproportionate to the prospects of success. Permission was therefore refused.

1. Court of Appeal (Civil Division): On 20 January 2009, the renewed application for permission was refused: [2009] EWCA Civ 55.
2. Bournemouth County Court: The application concerned an appeal from a decision of His Honour Judge Meston QC. No citation for that decision was stated in the judgment.