N v N

An appellate judge reviewing a discretionary financial-remedy order must respect the limited appellate function. The judge may intervene only upon a proper basis, such as a material error of law or a conclusion that was plainly wrong or unsustainable.

The appeal is not a rehearing. It does not permit the appellate judge to substitute an independent view of the evidence, make findings inconsistent with those of the trial judge, or receive fresh evidence unless exceptional circumstances justify it. A humane response to a litigant’s presentation cannot justify departure from those limits.

Following the parties’ separation, a consent order required the husband to pay periodical payments for five years. The wife later sought an extension and increase. District Judge Raeside extended the order to April 2012 but imposed a bar on any further application for extension.

On the wife’s first appeal, His Honour Judge Rylance extended maintenance to August 2015, removed the bar, and made a nominal joint-lives order thereafter. The husband brought a second appeal to the Court of Appeal.

The central issue was whether the circuit judge had exceeded the proper appellate function by departing from the district judge’s findings and discretionary conclusion.

1. Permission was granted and the husband’s appeal allowed. Lord Justice Thorpe, with whom Lord Justices Longmore and Stanley Burnton agreed, set aside the order of His Honour Judge Rylance and restored the order of District Judge Raeside.

2. The circuit judge had not sufficiently directed himself on the narrow appellate function. Although he recognised that the district judge had undertaken a thorough investigation and made careful findings, he proceeded to form his own view of the wife’s prospects of financial independence. That view was fundamentally inconsistent with the district judge’s findings.

3. An appellate court cannot exercise an independent discretion merely because it considers a different outcome humane or attractive. Before interfering with a discretionary financial-remedy order, it must identify a misdirection in law or conclude that the original decision was plainly wrong or unsustainable. The circuit judge had not validly reached either conclusion.

4. The appeal below was not a rehearing de novo. The wife’s presentation effectively introduced a new account of events and fresh material concerning subsequent proceedings and prospects. Such material could not be admitted on a principled basis absent exceptional circumstances. Its acceptance explained the substantial and impermissible departure from the earlier fixed-term order, including the introduction of nominal joint-lives maintenance.

5. Lord Justice Longmore added that a clear error by an appellate judge in interfering with the discretion of the judge who heard the evidence constituted a compelling reason to permit a second appeal.

• Court of Appeal (Civil Division): Permission for a second appeal was granted and the appeal allowed in [2011] EWCA Civ 940. The order of His Honour Judge Rylance was set aside and District Judge Raeside’s order restored.

• Guildford County Court, His Honour Judge Rylance: Allowed the wife’s appeal from District Judge Raeside. He extended periodical payments to August 2015, removed the restriction under section 28(1)(a), and made a nominal joint-lives order thereafter.

• Guildford County Court, District Judge Raeside: Extended the fixed-term periodical-payments order to April 2012 and imposed a restriction preventing a further application to extend the term.