Stocker v Stocker

Permission to appeal in financial-remedy proceedings requires the proposed appeal to have a real prospect of success. A challenge to factual findings or the exercise of statutory discretion must identify a legal misdirection, failure to consider material matters, or a conclusion that was not reasonably open on the facts. General dissatisfaction with the distribution of assets does not meet that threshold. Finality in litigation also requires the lower court’s judgment to be respected unless it was wrong in principle.

The husband renewed an application for permission to appeal out of time from a final financial-relief order made by His Honour Judge O’Dwyer in the Principal Registry of the Family Division and handed down on 3 December 2013. The order followed divorce proceedings involving complex company debts, property valuations, a boat and an agreement concerning the division of assets.

A paper application for permission had been refused by Kitchin LJ on 27 October 2014. The husband renewed the application before Mr Justice Blake, challenging the alleged disproportionate outcome and contending that an equal division should have been made. The central issue was whether the proposed appeal disclosed a real prospect of success or any other compelling reason for permission.

Mr Justice Blake refused the renewed application for permission to appeal out of time.

1. Permission threshold. Under CPR 52(3) (6), permission should be granted only where the proposed appeal has a real prospect of success. The threshold is particularly difficult to meet where the proposed appeal concerns findings of fact and the exercise of a statutory discretion in financial-remedy proceedings.
2. No arguable error. The applicant did not identify any misdirection in law, failure to take material considerations into account, or conclusion that was not reasonably open to the judge on the facts found. His continued disagreement with the division of assets did not establish an appealable error.
3. Agreement and discretion. The judge below had considered the parties’ agreement, the valuation difficulties and the applicant’s complaints before adopting the agreement as the basis for settlement. Nothing in the material before the court showed that the judge’s conclusion was wrong in principle.
4. Finality. Financial-remedy litigation requires finality. A judgment should be respected unless shown to be wrong in principle.
5. Order. The application was refused.

• Court of Appeal (Civil Division): On 24 March 2015, Mr Justice Blake refused the renewed application for permission to appeal out of time. The judgment is reported at [2013] EWCA Civ 628.
• Court of Appeal (Civil Division): On 27 October 2014, Kitchin LJ refused the paper application for permission to appeal.
• High Court of Justice, Principal Registry (Family Division): His Honour Judge O’Dwyer made the final financial-relief order, handed down on 3 December 2013.