NLW v ARC

On an ex parte application under Family Procedure Rules 2010 Part 30, the court may determine permission to appeal definitively, including by granting permission. Permission requires either a real prospect of success or another compelling reason. A real prospect of success ordinarily requires the appellant to show that success is more likely than failure, rather than merely that the appeal is not hopeless. The permission decision does not finally determine the appeal. Questions concerning fresh evidence may be reserved for an inter partes directions hearing.

The applicant sought permission to appeal, out of time, from a consent order for ancillary relief dated 1 December 2009. The application was listed ex parte under Family Procedure Rules 2010 Part 30. The respondent did not attend, having been advised that attendance was unnecessary. The issues were whether the court could grant permission definitively at that hearing, whether the proposed appeal satisfied the permission test, and how the admission of fresh evidence should be dealt with.

1. The court could determine the application definitively at the ex parte hearing. Under Family Procedure Rules 2010 Part 30, it could dismiss the application, direct a further ex parte hearing, order an inter partes permission hearing, order an inter partes permission hearing followed by the appeal, or grant permission. Different orders could be made on different grounds, and conditions could be attached to permission.

2. Rule 30.3(7) permitted permission only where the appeal had a real prospect of success or there was some other compelling reason for it to be heard. The court rejected the suggestion that this merely excluded hopeless appeals. Ordinarily, a real prospect of success meant that the appellant had to demonstrate that success was more likely than failure.

3. On the material before the court, the applicant had established clear prima facie cases of non-disclosure and undue influence. The court considered it more likely than not that the appeal would succeed. Granting permission did not pre-judge the substantive appeal, particularly because only the applicant had been heard.

4. Rule 30.12(2)(b) restricted the receipt of evidence not before the lower court unless the appeal court ordered otherwise. The court directed a half-day inter partes directions hearing to determine the fresh-evidence issue and directed that the substantive appeal be listed for three days. The costs of the permission application were reserved to the appeal.

This was a first-instance permission application in the High Court (Family Division). The substantive appeal arose from a consent order for ancillary relief dated 1 December 2009.