SR v RS

Permission to appeal a financial remedy order may be granted only where the appeal has a realistic, rather than fanciful, prospect of success, or where another compelling reason exists. An appellate court generally reviews the lower court’s discretionary decision and intervenes only where it was outside the range of reasonable decisions or was unjust because of serious procedural irregularity. Reasonable open offers must be taken seriously. Litigation misconduct and refusal of an appropriate open offer may exceptionally affect the substantive award, particularly where the resulting costs would otherwise make the outcome inequitable. Financial needs may be assessed by reference to the applicant’s realistically intended country of residence.

The applicant husband sought permission to appeal an order made by Deputy District Judge Stanton following a five-day financial remedy hearing. The order dismissed his claims, required him to return a Porsche motor car to the respondent wife and made a clean-break order.

The Deputy District Judge assessed the husband’s needs on the basis that he would return to Pakistan, valued the appropriate award at £25,000, and made no award after taking account of the wife’s earlier open offer of £30,000 and the husband’s litigation misconduct. The central issues were whether the needs assessment was permissible, whether the matter should have been adjourned pending an immigration appeal, and whether the open offer and costs consequences could properly affect the substantive award.

1. Permission to appeal. Under rule 30.3(7) of the Family Proceedings Rules 2010, permission could be granted only if the appeal had a real prospect of success or there was some other compelling reason. No compelling reason existed, so the issue was whether the proposed appeal was realistic rather than fanciful.
2. Appellate restraint. Rule 30.12 provided for a review rather than a rehearing, unless the interests of justice required otherwise. The appeal court could allow the appeal only if the lower decision was wrong or unjust because of serious procedural or other irregularity. In a financial remedy case involving discretion, intervention was justified only where the decision fell outside the range of reasonable decisions or was unfair.
3. Assessment of needs and immigration circumstances. The Deputy District Judge was entitled, having heard the evidence over five days, to assess the husband’s needs on the basis that he would return to Pakistan. The possible outcome of his immigration appeal did not require an adjournment and did not alter that assessment.
4. Open offer and litigation misconduct. The £25,000 assessment was within the permissible range. The Deputy District Judge was also entitled to take account of the husband’s refusal to give serious consideration to the wife’s earlier £30,000 open offer. Applying M v M [1995] 3 FCR 321, litigation misconduct would ordinarily be reflected in costs, but in an exceptional case could affect the substantive award where it would be inequitable to disregard the litigation conduct. The husband’s legal aid status did not prevent that approach.
5. The application for permission to appeal was refused. The submission that the marriage should be treated as lasting only from the husband’s arrival in England was misconceived; the relevant period ran from the marriage in Pakistan.

The judgment itself records that Deputy District Judge Stanton made the financial remedy order dated 8 July 2014. The High Court refused the husband’s application for permission to appeal.