Tattersall v Tattersall

On an application for permission to appeal in financial-remedy enforcement proceedings, an outstanding application to vary periodical payments may need to be determined before arrears are assessed or future payments are capitalised. A variation may be backdated to the application date and may therefore affect the enforceable or capitalised amount. The court also confirmed that a stay preserves the position only until the specified event or date, and does not continue after dismissal of the underlying appeal unless otherwise ordered.

The husband sought permission to appeal three sets of orders concerning enforcement of a financial remedy order made on 21 December 2012. His substantive appeal against that order had previously been dismissed by the Court of Appeal.

The challenged orders concerned case management, distribution of the proceeds of sale of a Cambridge property, enforcement of periodical-payment arrears, and capitalisation of future periodical payments against the husband’s Liverpool property. The husband also relied on an outstanding application to vary the periodical payments order. The central issues were whether enforcement and capitalisation could properly occur before that variation application was determined, and whether the procedures used gave proper notice and an opportunity to be heard.

1. Permission refused in part. The challenges concerning the case-management order, recusal and distribution of the Cambridge sale proceeds had no real prospect of success. The court’s wide case-management powers and the overriding objective supported the directions made. The later distribution order sought to give effect to the original order despite the lower sale proceeds.

2. A stay of execution or a stay pending appeal preserves the position until the specified date or event. Once the substantive appeal had been dismissed and the original order confirmed, the husband remained obliged to pay periodical payments until the order was discharged or varied. Grounds depending on a continuing stay were therefore totally without merit.

3. The recusal challenge also had no real prospect of success. Applying Porter v McGill [2001] UKHL 67, the question was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. That threshold was not met.

4. Permission granted to a limited extent. The husband’s variation application, issued in January 2014, remained undetermined. It was arguable that the application was critical because a variation could be backdated to its issue date. The court indicated that the variation application should be resolved before arrears were assessed or future periodical payments were capitalised, since the varied order would provide the relevant base figure.

5. The permitted appeal was confined to the orders enforcing arrears and capitalising periodical payments. The issues included whether enforcement against property or capitalisation should proceed only by formal application supported by evidence and proper inter partes notice, and whether either order should have been made before determination of the variation application. The restriction on dealing with the Liverpool property remained in force pending the appeal or further order.

1. Court of Appeal (Civil Division): the husband’s substantive appeal against the financial remedy order made on 21 December 2012 was dismissed after a full hearing on 9 July 2013.

2. Court of Appeal (Civil Division): on 25 May 2016, permission to appeal the case-management, recusal and Cambridge-property issues was refused as totally without merit. Permission was granted on the limited arrears-enforcement and capitalisation issues.