T v M

On an appeal against striking out an application to vary financial provision, the appellate court reviews the first-instance process rather than rehearing the case. It should intervene only where the decision was plainly wrong. An application issued shortly after a substantive order faces a high threshold, particularly where the alleged change was already examined and the application is unlikely to produce a useful result. Under the 2010 Family Procedure Rules, the court may strike out an application disclosing no reasonable grounds. Preventing substantial and disproportionate further costs may properly form part of that assessment.

The husband appealed against an order of District Judge Hess striking out his application to vary periodical payments made in favour of the wife. The original financial order had been made only about four months before the variation application. The husband alleged that the wife’s earnings and earning capacity were substantially higher than previously disclosed, relying on her ability to obtain mortgage finance and on material concerning her business activities. The wife argued that the matters had already been fully considered and that the application would serve no useful purpose. The central issue was whether the district judge had been plainly wrong to conclude that the application disclosed no reasonable grounds for variation.

1. The appeal was dismissed. The order requiring the husband to pay the costs of the strike-out application was upheld.

2. An appellate court exercising a reviewing function does not hear the matter de novo or substitute its own view merely because it might have reached a different conclusion. It asks whether the first-instance court properly considered the relevant arguments, excluded irrelevant matters, and avoided material omissions. It should not interfere unless the result was plainly wrong. That constituted a high threshold in this case.

3. Rule 4.4 of the 2010 Family Procedure Rules permits the court to strike out a statement of case where it discloses no reasonable grounds for bringing or defending the application. The court was also entitled to consider whether reopening the issue would serve any useful purpose and whether further litigation would cause substantial, unnecessary costs.

4. The district judge had heard the original financial dispute and was uniquely placed to assess the wife’s earnings and earning capacity. He had considered the husband’s further material and had taken account of the husband’s own increased income. The evidence did not show a sufficiently significant change in the wife’s income or earning capacity to provide good grounds for variation.

5. An application made only four months after the original order faced a very high threshold. The district judge was entitled to conclude that allowing it to proceed would be unlikely to produce a different result and would not be a proper use of court time or process. The circumstances did not amount to abuse of process, but justified striking out the application.

• High Court (Family Division): The appeal against District Judge Hess’s order of 22 September 2011 was dismissed. The costs order was upheld.