X v Y

The Court of Appeal should be slow to interfere with a case-management decision concerning intervention. Permission to appeal should not be granted merely because the appellate court might have balanced the competing considerations differently. Intervention may properly be refused where the applicant’s interest is remote or doubly derivative, the proper corporate defendant has chosen not to contest the claim, the applicant has delayed, and the applicant cannot contribute evidence. The first-instance judge must balance those matters against the risk that the proceedings will go undefended. Reasonable judges may reach different conclusions, but intervention should not be ordered unless the decision is plainly wrong, or relevant matters were ignored or irrelevant matters considered.

This was an oral renewal of an application for permission to appeal against Bodey J’s refusal on 27 June 2014 to permit intervention in family ancillary relief proceedings. The wife sought to enforce a financial remedy order against the estate of her deceased former husband. The underlying dispute concerned the ownership of shares in UK companies held through a complex corporate and trust structure.

The applicant, the husband’s daughter, claimed an interest dependent on the enforcement of a letter of wishes and her possible addition as a trust beneficiary. Bodey J refused intervention because of unexplained delay and the tenuous and remote nature of the applicant’s interest. McFarlane LJ refused permission on paper. The central issue was whether the refusal had a real prospect of being shown plainly wrong on a full appeal.

Application dismissed. Briggs LJ refused permission to appeal. The applicant had shown neither a real rather than fanciful prospect of success nor any other compelling reason for permission.

1. The decision under challenge was a case-management decision. The appellate court should be slow to intervene and should not substitute its own assessment unless the judge ignored relevant matters, took account of irrelevant matters, or was plainly wrong. The weight given to competing factors was ordinarily a matter for the first-instance judge.
2. The judge was entitled to conduct a difficult balancing exercise. Relevant considerations included the applicant’s delay, the prejudice caused by further delay, the remoteness of the applicant’s interest, the absence of evidence which she could contribute, the decision of the proper corporate defendant not to contest the claim, and the consequence that the proceedings might go undefended.
3. The company whose shares were directly in issue was the proper defendant. Its decision not to defend was entitled to great respect. The ordinary assumption was that professional directors acted in the company’s and shareholders’ best interests. The applicant had to show that the decision was otherwise.
4. The applicant’s position was doubly derivative and depended on contested trust proceedings, possible enforcement of the letter of wishes, and recovery not being overwhelmed by foreign taxes. The judge was entitled to regard that interest as tenuous and precarious. The possibility of forensic testing of the wife’s case did not make refusal of intervention perverse.
5. Briggs LJ expressed no view on the merits of the wife’s claim. The possible application of a Prest resulting trust to a sophisticated corporate trust structure was not straightforward, but that observation was unnecessary to the decision. A transcript was directed to be prepared and circulated for approval and possible anonymisation.

• Court of Appeal (Civil Division): On 11 September 2014 Briggs LJ dismissed the oral renewal of the application for permission to appeal: [2014] EWCA Civ 1465.
• Court of Appeal, paper permission stage: McFarlane LJ refused permission, finding no suggested error of law and no reasonable prospect of success.
• High Court of Justice: Bodey J refused the application to intervene on 27 June 2014, principally because of delay and the applicant’s tenuous and remote interest.