De Cruz v Rubino

Permission to appeal may be granted where the proposed appeal has a real prospect of success, even though the prospect is materially below a balance-of-probabilities threshold. A compelling reason is an alternative ground, not a requirement where a real prospect exists. Procedural fairness may require notice before a hearing listed or understood as procedural is converted into a final hearing. The court should also consider proportionality, including the relationship between the sums in issue and the likely costs, but proportionality does not displace the statutory permission test.

The applicant sought permission to appeal a District Judge Robinson order of 24 February 2014 concerning child-maintenance arrears and future payments for the parties’ children. The proposed grounds included procedural unfairness, alleged errors in calculating arrears, the suggested effect of an adult child living and studying in England, and the destination of future payments.

The respondent, who lived in New York, did not participate. The central question was whether the proposed appeal met the permission threshold under rule 30.3(7) of the Family Procedure Rules 2010.

1. Permission granted. The court granted permission to appeal, while emphasising that permission did not indicate that any ground would succeed and that the appeal was not limited to the identified areas.
2. Under rule 30.3(7) of the Family Procedure Rules 2010, permission may be granted only where the appeal has a real prospect of success or there is some other compelling reason for it to be heard. The two limbs are alternatives. The real-prospect threshold is relatively low and lies below a 50/50 prospect of success.
3. The proposed procedural-fairness ground had a real prospect because the applicant and his advocate appeared to have been taken by surprise when a hearing whose scope was unclear, and which they understood to be procedural, was treated as a final substantive hearing. The principle identified by Lewison LJ in Re S-W (children) [2015] EWCA Civ 27 was relevant, although the circumstances there were materially more serious and distinct.
4. The argument that the respondent should notionally have paid maintenance to the applicant for the child living in England was characterised as unreal. By contrast, there might be substance in the alleged overstatement of arrears and in the objection to payment into United States accounts. Those limited issues gave the proposed appeal a real prospect of success, potentially reducing the arrears to zero or avoiding transaction charges.
5. There was no other compelling reason for the appeal. The court nevertheless considered the substantial and disproportionate costs, warning that pursuing the appeal could expose the applicant to further costs and might not produce a financially sensible result.

1. District Judge Robinson: On 24 February 2014, quantified child-maintenance arrears at £2,060.90 and made directions concerning future payments.
2. High Court (Family Division): An earlier application for permission was adjourned by Coleridge J on 2 April 2014. Holman J granted permission on 3 February 2015.