RB (Adult) (No 2) , Re

Permission to appeal may be granted only where the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard. The absence of a formal order does not itself prevent an appeal from a fact-finding hearing. A retrial requires an identified procedural irregularity or genuinely new evidence. A desire to re-argue the case in the hope of obtaining a different result is insufficient. Material arising after judgment, including another party’s costs application or reliance by an adjudicator on a finding, does not necessarily constitute new evidence or provide an arguable basis for appellate intervention.

The judgment concerned applications by MF following an earlier fact-finding judgment in Re RB (Adult), reported at [2010] EWHC 2423 (Fam). No formal order had been made. MF sought a retrial and permission to appeal, relying on subsequent correspondence concerning costs, an adjudicator’s letter, and written material setting out his case. The applications were dealt with on the papers. The central issues were whether an appeal could proceed without an order, whether the proposed appeal satisfied the statutory permission threshold, and whether there was any basis for a retrial.

1. The court refused permission to appeal and refused the application for a retrial. Both applications were dismissed. The matter was to proceed in accordance with the directions previously given.

2. The absence of a formal order was not a jurisdictional bar. The Court of Appeal had jurisdiction to hear an appeal from a fact-finding hearing even where no order had been made, as illustrated by Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334 and Re A (A Child) (No 2) [2011] EWCA Civ 12.

3. Under rule 52.3(6) of the Civil Procedure Rules 1998, permission required either a real prospect of success or some other compelling reason for the appeal to be heard. Neither condition was met. The application was substantially out of time, but that was not the reason for refusal. The proposed challenge was devoid of merit and amounted to an attempt to re-argue the case.

4. The matters relied upon did not amount to new evidence. The Official Solicitor’s costs application did not cast doubt on the findings. The adjudicator’s possible reliance on one of those findings was neither new evidence nor, without more, a ground for permission. The letters setting out MF’s case contained material potentially relevant to later costs and compensation applications, but disclosed no properly arguable basis for appellate interference.

5. There was likewise no basis for a retrial. MF identified no irregularity in the proceedings and produced no new evidence. A mere wish for a further opportunity to present the same case did not justify a rehearing.

The judgment followed an earlier fact-finding judgment of the High Court in Re RB (Adult) [2010] EWHC 2423 (Fam). No formal order had been made in that earlier judgment. The present court refused permission to appeal and refused a retrial.