Francis v Francis

In an application for permission to bring a second appeal in ancillary-relief proceedings, the court identified an important and arguable question concerning the scope of a rehearing under the Family Proceedings Rules 1991. The issue was whether the principles in Barder v Caluori [1988] AC 20 govern a timely appeal from a district judge, or only an attempt to reopen a matter finally determined. It was also arguable that a rehearing could be confined to a discrete evidential issue, such as updated property valuations, rather than require reconsideration of all the evidence. The court did not decide those substantive questions. Permission was refused on challenges to the treatment of pre-marital contributions and a pre-nuptial contract.

The husband sought permission for a second appeal from an order made by Mrs Justice Eleanor King on 17 July 2009. The High Court had allowed his appeal only in relation to his wife’s periodical payments and had varied that provision by consent, while upholding the District Judge’s capital award. The District Judge had ordered an adjusted near-equal division of the parties’ assets following their divorce.

During the High Court appeal, updated valuations showed a substantial fall in the value of the French property to be retained by the husband. The High Court treated the fall as not being a Barder event and declined to conduct a rehearing. The central issue was the proper scope of a rehearing and the application of the principles in [1988] AC 20 to a timely appeal.

1. Disposition. The application was allowed in part. An extension of time for filing the appellant’s notice was granted. Permission to appeal was granted on ground 3 only and refused on the remaining grounds. Execution of paragraph 2(b) of the High Court order was stayed, with the wife given liberty to apply on notice for discharge or variation of the stay.
2. Second appeal threshold. Under rule 52.13(2) of the Civil Procedure Rules 1998, the husband had to satisfy one of the second-appeal criteria. The proposed challenge to the High Court’s treatment of the updated French valuations raised an important and arguable issue and was fit for a second appeal.
3. Rehearing and changed valuations. Rule 8.1(3)(a) of the Family Proceedings Rules 1991 ordinarily limits an appeal from a district judge to review of the order, but permits a rehearing where the interests of justice require it. The court considered it arguable that the principles in Barder v Caluori [1988] AC 20 may apply only when reopening a matter properly regarded as finally determined, rather than to a timely appeal. It was also arguable that a rehearing could be limited to a discrete evidential issue, such as property valuation, and need not be a rehearing de novo of all the evidence. Those questions were left for the appeal.
4. Other grounds. There was no room for the Court of Appeal to undertake a new enquiry into the husband’s asserted income contribution where the point had not clearly been raised below, or to interfere with the District Judge’s assessment of the allowance for his pre-marital contribution. The District Judge and High Court were also right to attach no weight to the pre-nuptial contract, given the parties’ lack of understanding and independent advice, their belief that it was required by French law, and conflicting evidence about its effect. The circumstances were materially remote from Radmacher and Granatino [2009] EWCA Civ 649. A further ground concerning trustee payments was abandoned.

1. Court of Appeal (Civil Division) — Permission granted on ground 3 only; permission refused on the remaining grounds. An extension of time and a stay of execution were granted.
2. High Court, Family Division — Mrs Justice Eleanor King allowed the husband’s appeal to a limited extent concerning periodical payments and varied that provision by consent, while upholding the capital award.
3. District Judge — District Judge Bowman made the ancillary-relief order on 14 November 2008 after a five-day hearing, providing for an adjusted near-equal division of assets and periodical payments.