Hart v Hart

Permission to appeal should be refused where the proposed grounds disclose no reasonably arguable basis for disturbing the decision below. In ancillary relief proceedings, whether a relationship affects a party’s needs is determined by assessing the totality and nuance of the evidence; an earlier decision on different facts does not create a rule of law. A court may provide for a prospective capital gains tax liability where it is more likely to arise than not. Expert opinion does not bind the court. Allegations of procedural unfairness ordinarily require an official transcript enabling the appellate court to evaluate what occurred.

The husband renewed his application for permission to appeal against two judgments of His Honour Judge Wildblood QC, sitting in the High Court under section 9, in ancillary relief proceedings. The wife had already obtained permission to appeal, while the husband’s application had been refused on the papers by Kitchin LJ.

The husband advanced seven complaints, including the treatment of the wife’s cohabitation, a family trust, short-term loan profits, prospective capital gains tax, an inter-company debt, the admission of evidence, and alleged procedural unfairness. The central questions were whether any ground was reasonably arguable and whether the husband’s ability to resist the wife’s appeal would be prejudiced if permission were refused.

1. Application refused. The renewed application disclosed no reasonably arguable basis for challenging any of the seven grounds, nor any other ground advanced in the written materials. The husband would not be prejudiced in resisting the wife’s appeal, so the second limb of the permission test did not justify granting permission.
2. Whether a spouse’s relationship or prospects of remarriage affect needs is quintessentially a matter of fact. The judge must consider the totality and nuance of the evidence. AB v CB [2014] EWHC 2998 (Fam) did not lay down a principle of law, and the finding that the wife’s relationship should not diminish her needs was plainly open on the evidence.
3. Where procedural unfairness is alleged, the appellate court will normally require an official transcript of the relevant proceedings so that it can evaluate the complaint. The same requirement applied to the allegation that the judge prevented the husband from deploying his case law.
4. The judge was entitled to provide for a prospective capital gains tax liability. The relevant question was not whether liability was certain, but whether, insofar as the future could be predicted, it was more likely to accrue than not. The expert’s opinion that liability might never arise did not bind the court. The associated complaints about calculation and refusal to admit the husband’s expert report disclosed no arguable error.
5. The alleged inter-company debt remained recoverable in the usual way and fell outside the ambit of the order and proceedings. It did not provide a basis for challenging the separate provision made for prospective tax liability.

The wife’s appeal remained to be heard in the ordinary course, and the husband retained the right to resist it on grounds properly open to him.

1. Court of Appeal (Civil Division): the husband’s renewed application for permission to appeal was refused; the wife’s appeal remained outstanding.
2. Court of Appeal (Civil Division), on the papers: Kitchin LJ granted the wife permission to appeal and refused the husband permission on 26 February 2016.
3. Bristol Civil and Family Justice Centre, High Court under section 9: His Honour Judge Wildblood QC gave judgments dated 20 May 2015 and 25 June 2015.