D v D

The power to strike out an appeal for procedural non-compliance must be used sparingly and only for compelling reasons, with regard to whether the result would be unjust. A litigant in person remains bound by appellate rules, but a prompt application for an extension cannot be ignored. Where court administration causes delay in supplying a directed transcript, and the appellant has repeatedly sought it, strike-out may be unjustified. A court must consider relevant evidence and must not rely against a party on an undisclosed record without allowing an opportunity to comment. In financial remedy proceedings, the judgment should demonstrate consideration of the statutory criteria and the limits of the court’s jurisdiction under the Matrimonial Causes Act 1973.

The husband appealed against an order made by Her Honour Judge Hughes QC on 6 June 2014 in financial remedy proceedings following the parties’ dissolved marriage. Judge Hughes had struck out his appeal from an order made by Deputy District Judge Parker on 13 December 2013 because he had failed to provide grounds of appeal.

The husband had promptly sought an extension of time, repeatedly requested a transcript directed at public expense, and sought permission to inspect the court file. The central issue was whether the strike-out decision was justified in circumstances involving alleged court delay, disputed facts and reliance on an undisclosed electronic court record.

1. Appeal allowed. The decision to strike out the husband’s appeal was wrong in principle and on the facts and was set aside.
2. A litigant in person remains required to comply with the rules and practice directions governing appeals. The husband should have stated his grounds of appeal and was not entitled to significant procedural leeway. However, he had promptly applied for an extension of time and repeatedly attempted to obtain the transcript and perfected order needed to formulate his grounds. The court had neither determined his application nor supplied the transcript it had directed at public expense. The resulting delay could not fairly be attributed to him.
3. The judge’s finding that the husband had not made sufficient attempts to obtain the transcript was plainly wrong. She had failed to take account of his witness statement and the evidence of his repeated requests. The judge had also relied on a FamilyMan record which had not been disclosed to the parties. If that record was to be used against them, they should have been allowed to inspect it and comment on it. In any event, it was only a partial electronic record and could not be conclusive without evidence establishing its scope and reliability.
4. The underlying financial remedy order disclosed a prima facie case on appeal. Consideration of income and needs had been adjourned, yet the available assets had been transferred to the wife without an apparent analysis under section 25 of the Matrimonial Causes Act 1973. Further, an order requiring Miller Group Limited to transfer the former matrimonial home was not authorised by section 24 of that Act, and no constructive or resulting trust capable of variation had been identified. These matters were not finally determined, but reinforced that the appeal should not have been struck out.

• Court of Appeal (Civil Division): by [2015] EWCA Civ 181, allowed the husband’s appeal and set aside the strike-out order.
• Central Family Court: on 6 June 2014, Her Honour Judge Hughes QC struck out the husband’s appeal from the financial remedy order.
• Romford County Court: Deputy District Judge Parker made the underlying order on 13 December 2013 after proceedings heard in July 2013.