Marano v Marano

On a renewed application for permission to appeal, the Court of Appeal may allow an arguable point to be investigated even if it was not advanced below, where justice requires it. Raising substantial new arguments after an adverse judgment is unattractive and deprecated. The court may nevertheless grant permission while reserving costs consequences.

Permission may be confined by existing appellate guidance. A proposed point contrary to Court of Appeal guidance cannot be pursued merely on the basis of a contrary first-instance decision. A pending appellate decision may justify allowing a foreign-law issue to remain open. Permission may also be accompanied by mediation and case-management directions.

The appellant wife renewed an application for permission to appeal against a financial remedy order made by Mrs Justice Eleanor King in the High Court of Justice, Family Division. The order required payment of a £5 million lump sum in circumstances involving the valuation of the husband’s Liverpool property.

The proposed grounds included the valuation basis, non-matrimonial property, Californian law and post-separation dequest. Several points had not been advanced below. The respondent did not appear or have representation. The central issue was whether justice required the new arguments to be investigated on appeal, with any appropriate costs consequences.

Thorpe LJ granted the renewed application for permission to appeal, with Longmore LJ and Bodey J agreeing. The court did not determine the merits of the proposed grounds.

1. The principal argument concerned the use of a professional valuation which assumed an immediate sale of the Liverpool property and treated its value as substantially negative. The appellant argued that an immediate sale was exceptionally unlikely and that the wife should instead remain bound into the development’s future fortunes.
2. Thorpe LJ regarded the practice of advancing substantial arguments for the first time in the Court of Appeal, after adopting a different legal case below, as unattractive and deprecated. Nevertheless, where justice required the points to be investigated, the court could permit them to proceed and devise appropriate costs penalties.
3. The proposed argument concerning non-matrimonial property could not be pursued in the Court of Appeal against the guidance appearing in paragraph 66 of Charman [2007] EWCA Civ 503, where the only contrary support identified was a first-instance decision. The Californian-law point was allowed to survive for consideration in light of the pending decision in Granatino. The post-separation dequest point, although not taken below, was likewise considered capable of investigation if justice required.
4. The appeal was directed not to be listed before the Michaelmas term at the earliest. Invitations were to be sent to the parties to enter the Court of Appeal mediation scheme. If mediation proceeded, the parties were required to report progress at significant stages and at least every eight weeks.

Order: Application granted.

1. Court of Appeal (Civil Division): Thorpe LJ refused permission to appeal on paper on 19 June 2009. On renewal, the Court of Appeal granted the application on 30 June 2009 and gave mediation and listing directions.
2. High Court of Justice, Family Division: Mrs Justice Eleanor King made the financial remedy order under appeal. The citation of that decision was not stated in the judgment.