Welch v Welch

An appellate court should not decide the merits of an application for permission to appeal where the lower court has not made a proper substantive determination. If permission was adjourned rather than refused, the matter should be remitted to the appropriate first-instance court. Other pending permission applications may be adjourned until that determination is made.

Ancillary financial relief proceedings between a wife and husband included a possession order requiring the wife to leave the former matrimonial home. The wife subsequently made several applications and sought permission to appeal. Roberts J had adjourned the application concerning the possession order, but Holman J later proceeded on the basis that permission had already been refused. The wife applied to the Court of Appeal, raising that error and challenging the failure to address the merits. The central issue was whether the permission application had received a substantive determination and, if not, whether the Court of Appeal should decide it itself.

Lord Justice McCombe held that the essential issue was whether the wife’s application for permission to appeal Judge Hess’s possession order had been substantively determined. Roberts J’s order appeared to have adjourned the application for a date to be fixed, whereas Holman J had recorded that permission had already been refused. The latter appeared to be an understandable slip following a lengthy hearing.

1. The Court of Appeal is an appellate court. It should not determine a matter which is essentially one of first-instance procedure or merits where the High Court has not made a proper decision.
2. The Court was therefore not prepared to hear the application for permission to appeal on its merits without a proper High Court determination. The matter was remitted to the Family Division for consideration, preferably by Holman J or Roberts J if available, but otherwise by another judge.
3. The outstanding permission applications in the Court of Appeal were adjourned until the remitted matter had been resolved.

The Court did not determine the merits of the proposed appeal against the possession order or the other outstanding issues.

1. Court of Appeal (Civil Division) — [2015] EWCA Civ 1407, 3 December 2015: remitted the permission issue to the Family Division and adjourned the outstanding permission applications.
2. High Court — Holman J, 31 July 2015: refused the wife’s applications, including permission to appeal the possession order, on the mistaken basis that Roberts J had already refused permission.
3. High Court — Roberts J, May 2015: refused the application for recusal but adjourned the application for permission to appeal the possession order.
4. District Judge Hess — made the ancillary relief order and subsequently made the possession order concerning the former matrimonial home.