CR v SR

Permission to appeal under rule 30.3(7) of the Family Procedure Rules 2010 requires a real prospect of success, meaning a realistic rather than fanciful prospect. The court should not impose a higher gloss, such as a requirement to show that success is more likely than not. Where financial remedy orders rely on estimates of future income, the court should exercise reasonable caution. The orders must be affordable and should not create an undue imbalance between the parties’ future financial positions. A permission application may succeed where the combined effect of capital and maintenance orders arguably falls outside the bracket of reasonable orders.

The husband sought permission to appeal a District Judge’s financial remedy order following the parties’ separation. The order transferred the former matrimonial home to the wife and required the husband to pay global maintenance for the wife and children. The husband argued that the order left him without capital, with continuing liabilities, and depended excessively on uncertain estimates of his future partnership income. He also sought permission to adduce further expert evidence. The central issues were the proper test for permission to appeal, whether the orders had a real prospect of being shown unreasonable, and whether further expert evidence was necessary.

1. Permission test. Rule 30.3(7) of the Family Procedure Rules 2010 permits an appeal where it has a real prospect of success or there is another compelling reason. The husband relied only on the first ground. The court held that the test was the same as that applied to appeals to the Court of Appeal: the prospect must be realistic rather than fanciful. It applied the interpretation in Tanfern Limited v Cameron-MacDonald [2000] 1 WLR 1311.
2. The court considered that the appeal had a real prospect of establishing that the orders, particularly in combination, fell outside the bracket of reasonable orders and did not produce a balanced outcome. The wife received all the capital, while the husband retained liabilities and faced a significant income disadvantage even on the assumed drawings.
3. When financial orders depend on estimates of future income, reasonable caution is required. The order must be affordable and must not create an undue imbalance between the parties’ future financial positions. The expert evidence stated only that the selected growth rates may be achievable. The appeal therefore had a reasonable prospect of showing that maintenance had been based too heavily on uncertain estimates.
4. The court identified a possible approach of ordering an annual amount during the year with a later top-up after accounts had been prepared, but left the ultimate solution to the appeal judge.
5. The application to adduce additional expert evidence was refused. The appeal could fairly be determined using the District Judge’s judgment and the existing evidence, including the accountant’s report dated 25 June 2012. The appeal was listed for hearing, with the parties encouraged to seek agreement in the meantime.

The husband sought permission to appeal from a financial remedy order made by a District Judge at the Principal Registry on 7 November 2012. The High Court granted permission and listed the appeal for hearing.