McHugh v McHugh

Where an appeal court grants permission to appeal on limited grounds after an oral hearing, it necessarily refuses permission on the remaining grounds unless it expressly reserves them. The appellant cannot revive a refused ground at the appeal hearing or pursue it by a second appeal.

The statutory finality imposed by section 54(4) of the Access to Justice Act 1999 is jurisdictional. Procedural unfairness, prejudice or the importance of the underlying dispute cannot confer jurisdiction. A later grant of permission made without jurisdiction may be set aside under CPR 52.9 because the absence of jurisdiction supplies a compelling reason.

Following a final hearing concerning matrimonial finances, District Judge Nightingale made an order after a hearing at which neither party had given evidence on oath. She refused the husband's application for permission to appeal.

At a renewed oral hearing, His Honour Judge Caddick granted permission on two limited grounds concerning the wife's inheritance and the sale of the matrimonial home. He subsequently allowed the appeal in part. A single Lord Justice then granted permission for a further appeal solely on the ground that the parties had not been sworn.

The central issue was whether the Court of Appeal had jurisdiction to hear that ground when the Circuit Judge's limited grant of permission had necessarily refused permission upon it.

1. The grant of permission was set aside. The Court of Appeal lacked jurisdiction to hear the proposed appeal. Lewison LJ gave the judgment, with which Black and King LJJ agreed.

2. Section 54(4) of the Access to Justice Act 1999 prevents an appeal from a decision giving or refusing permission to appeal. Under rule 30.3 of the Family Procedure Rules 2010, the Circuit Judge was entitled to limit permission to particular issues. By granting limited permission after an oral hearing, he necessarily refused permission on the ground concerning unsworn evidence: [2004] EWCA Civ 1269 and [2013] EWCA Civ 1158 followed.

3. The limited order could not be construed as implicitly permitting the unsworn-evidence ground merely because that ground was said to be fundamental to the permitted issues. The terms of the order and the Circuit Judge's treatment of the permitted questions showed that permission on that ground had not been given.

4. An appellant cannot broaden limited permission at the appeal hearing after the appeal court has determined the permission application orally. Nor can a ground upon which permission was refused be renewed through a second appeal. That conclusion followed Fieldman v Markovic [2001] CP Rep 119 and James v Baily Gibson & Co [2002] EWCA Civ 1690, and was reflected in Practice Direction 30A to the Family Procedure Rules.

5. The jurisdictional question was not discretionary. Neither prejudice, the alleged seriousness of the procedural defect nor the welfare implications of the financial proceedings could confer a power withheld by statute. The single Lord Justice therefore had no power to grant permission on the refused ground.

6. Under CPR 52.9, permission may be set aside only for a compelling reason. Athletic Union Of Constantinople v National Basketball Association (No 2) & Ors [2002] EWCA Civ 830 established that a grant made where the court lacks jurisdiction may be set aside. The lack of jurisdiction supplied the necessary compelling reason in this case.

1. Court of Appeal (Civil Division): Set aside the single Lord Justice's grant of permission because the court lacked jurisdiction to hear the proposed ground: [2014] EWCA Civ 1671.

2. Single Lord Justice: Sir Robin Jacob granted permission for a further appeal solely on the issue of the District Judge's failure to swear the witnesses.

3. Medway County Court, Circuit Judge: His Honour Judge Caddick granted permission at an oral hearing on two limited grounds concerning inheritance and sale of the matrimonial home. He later allowed the appeal in part, principally because the wife had concealed the size of her inheritance.

4. Medway County Court, District Judge: District Judge Nightingale determined the matrimonial finances and refused the husband's application for permission to appeal.