Cart v Cart

Section 54(4) of the Access to Justice Act 1999 prevents a further appeal against an appellate court’s refusal of permission to appeal. A challenge alleging that a later event destroyed the basis of a financial order is an appeal for this purpose and cannot be recast as a set-aside application. A Barder event must be new and unforeseen, must invalidate a fundamental assumption, and must be pursued promptly. A contemplated risk of increased and retrospective maintenance liability does not qualify. Finality may weigh against relief after prolonged litigation. Material non-disclosure requires an actual and material omission. Permission is refused where there is no real prospect of success and no other compelling reason.

Mr Cart sought permission to appeal out of time against District Judge Exton’s ancillary relief order dated 26 May 2006 and to set it aside for alleged material non-disclosure. HHJ Marston dismissed both applications on 7 February 2013. Mr Cart relied on the later increase and retrospective assessment of his child support liability, and alleged that Mrs Cart had failed to disclose communications with the Child Support Agency.

The proposed appeal challenged the treatment of the alleged Barder event, delay and finality, and the conclusion that any non-disclosure was immaterial. The central procedural issues were whether the Court of Appeal had jurisdiction to review a county court’s refusal of permission to appeal, and whether the non-disclosure application was an exercise of original set-aside jurisdiction.

Jurisdiction

1. The Court of Appeal declined to entertain the proposed appeal against HHJ Marston’s refusal of permission to appeal out of time on the alleged Barder-event ground. Section 54(4) of the Access to Justice Act 1999 barred an appeal against a junior appellate court’s decision to grant or refuse permission, unless it could truly be said that no decision had been made. The challenge could not be recast as an application to set aside the order under FPR 2010 rule 4.1(6). Barder v Caluori [1988] AC 20 and Roult v North West Strategic Health Authority [2009] EWCA Civ 444 supported treating a challenge based on a subsequent event destroying the original assumption as an appeal.
2. In relation to alleged non-disclosure, Lady Justice Gloster proceeded, without deciding the procedural characterisation, on the basis that HHJ Marston had exercised the county court’s original set-aside jurisdiction. If the decision was instead a refusal of permission to appeal, the Court of Appeal likewise had no jurisdiction.

Alternative merits

Even assuming jurisdiction, the proposed Barder appeal had no real prospect of success. The possibility of an application to vary child support, increased liability and retrospective arrears had been contemplated by Mr Cart and his experienced legal advisers and had been raised before District Judge Exton. The later increase in liability, and the resulting arrears, therefore did not constitute a new unforeseen event which invalidated the original assumptions. The position was unchanged even if the arrears resulted from inability to pay rather than deliberate default. The application was also not made reasonably promptly, and finality was a legitimate consideration given the prolonged and repeated litigation.

There was no real prospect of success on non-disclosure. No variation application had actually been made by the dates of the ancillary relief hearing, and earlier telephone complaints about dividends did not amount to non-disclosure. Even if disclosure of those communications had been required, the omission was immaterial because the risk of increased maintenance liability was known and had been ventilated before the District Judge. The criteria in CPR 52.3(6) were not met: there was no real prospect of success and no other compelling reason for an appeal. The recusal application was also refused.

1. Court of Appeal (Civil Division): [2013] EWCA Civ 1006. Declined jurisdiction over the proposed appeal concerning refusal of permission to appeal out of time, and refused permission on the alleged non-disclosure ground.
2. Bristol County Court: HHJ Marston dismissed the applications for permission to appeal out of time and to set aside District Judge Exton’s order on 7 February 2013.
3. Bristol County Court: District Judge Exton made the ancillary relief order on 26 May 2006.