W v H

Where an appellate court sets aside a lower court order for want of jurisdiction, the order ceases to have effect and cannot ordinarily found an issue estoppel. The appellate decision determines the relevant issue, rather than leaving the lower court’s findings available as conclusive determinations on the merits.

Issue estoppel remains subject to the underlying requirements of justice and public policy. Re-litigation may be permitted where the earlier findings were limited, historical, reached without a full trial, or insufficiently precise to determine the issues now arising.

The parties’ Islamic marriage was treated in earlier proceedings as engaging Part III of the Matrimonial and Family Proceedings Act 1984. A Deputy High Court Judge permitted the applicant to activate a Part III financial remedy application and found that the respondent was in substantial breach of financial obligations.

The Court of Appeal allowed the respondent’s appeal on jurisdictional grounds, holding that the ceremony did not create a marriage within the relevant statutory meaning: [2012] EWCA Civ 1507; [2013] 2 WLR 1255; [2013] 1 FLR 1493. The applicant subsequently sought enforcement and other remedies based on undertakings recorded in an earlier consent order, and relied on the Deputy Judge’s findings by way of issue estoppel. The preliminary issue was whether those findings remained conclusive after the appellate decision.

1. The applicant abandoned reliance on issue estoppel. The respondent was entitled to the costs of determining that discrete preliminary issue, assessed on the standard basis. The court did not determine the substantive enforcement proceedings.

2. The respondent’s submission that the Deputy Judge’s order was a nullity was established and unanswerable. Applying P & O Nedlloyd BV v Arab Metals Co and others (No 2), [2006] EWCA Civ 1717; [2007] 1 WLR 2288, when an appellate court sets aside a lower court order, that order ceases to have effect and the lower court’s decision alone is no longer determinative, regardless of the ground on which the appellate order was made.

3. It made no difference that the Deputy Judge’s findings concerned the Part III application rather than the proceedings in which the undertakings had been given. The jurisdictional basis of the Part III proceedings had failed, so the findings could not be relied upon as conclusive findings in the later enforcement proceedings.

4. There were additional reasons why reliance on issue estoppel would not have produced a just determination. Under Arnold v Westminster Bank PLC [1991] 2 AC 93, the court may recognise that inflexible application of estoppel can produce injustice in special circumstances. The earlier findings addressed only examples necessary to determine whether the Part III application had been triggered. They did not analyse all alleged breaches, their remedial consequences, or their cost.

5. The findings were historical, based on limited documentary material and a one-sided presentation, and had not been reached after a full trial. The Court of Appeal’s jurisdictional decision had also prevented the respondent from pursuing his remaining grounds of appeal. A fresh and detailed examination of the evidence would therefore have been permissible and appropriate.

6. For costs purposes, it was immaterial that the parties had not earlier cited the authority establishing the respondent’s position. The respondent had incurred expenditure meeting an unarguable point. The fact that the argument occupied limited hearing time did not make its recoverable costs minimal.

• Court of Appeal allowed the appeal on jurisdictional grounds: [2012] EWCA Civ 1507; [2013] 2 WLR 1255; [2013] 1 FLR 1493.
• High Court (Family Division) held that the earlier findings could not support issue estoppel and awarded the respondent the costs of that preliminary issue.