Kremen v Agrest

Permission to appeal should be granted where the proposed grounds disclose a real prospect of success. That threshold was met where the appeal raised procedural concerns about discharging a committal order in the alleged contemnor’s absence, and substantial questions about whether a debt had been paid under the Debtors Act.

The statutory and discretionary issues were arguable, but the Court of Appeal did not determine their merits. It directed that the substantive appeal be heard by a court of three, including a judge with family experience.

The wife applied for permission to appeal against an order made by Holman J on 14 February 2011. That order discharged a committal order made against the husband by Mostyn J for wilfully refusing to pay £10,000 on account of maintenance arrears and a £100 issue fee.

The husband had not attended the hearing or instructed a lawyer. Holman J nevertheless considered his application to discharge the committal order and concluded that payment of £10,100 from funds held in court entitled him to discharge under section 5 of the Debtors Act. The wife challenged that conclusion, the procedure adopted, and the exercise of discretion. The central issue was whether those grounds gave a real prospect of success.

1. Disposition. Lady Justice Black granted the wife permission to appeal. The substantive appeal was not determined.
2. Procedural challenge. The wife had a real prospect of success in arguing that Holman J had effectively reviewed Mostyn J’s committal decision by considering the husband’s discharge application when the husband was absent and unrepresented. This was despite an earlier direction that he attend personally or instruct solicitors.
3. Statutory issue. The wife had an arguable challenge to the conclusion that the debt had been satisfied under section 5 of the Debtors Act. The appeal could examine whether the payment ordered from funds held in court was intended to discharge the liability, whether it was legally a payment of the debt rather than merely an equivalent sum, and whether the funds were the husband’s money.
4. Discretionary issue. Permission was also justified on the question whether the existence of the warrant created a justifiable fear preventing the husband’s attendance, or whether his absence resulted from his own failure to pay, attend, obtain representation, or pursue alternative means such as a video link.
5. The proposed appeal was expected to take approximately half a day. It was directed to be heard by three judges, potentially including one High Court judge, with family experience represented.

1. Court of Appeal (Civil Division). In [2011] EWCA Civ 1014, Lady Justice Black granted permission to appeal and gave directions for the substantive hearing.
2. Principal Registry of the Family Division. Holman J made the order of 14 February 2011 discharging the committal order against the husband.