Whittingham v Whittingham

An interlocutory appeal should not be used to rehearse the merits of a substantive appeal that is due to be heard shortly. Where the substantive issues remain for determination by the appellate court, an application seeking substantially the same relief is a disproportionate misuse of procedure. A stay or temporary abeyance of existing arrangements may adequately protect the applicant pending appeal, particularly where unresolved asset, payment and security issues remain.

The husband sought permission to appeal against a circuit judge’s refusal to suspend a receivership pending a substantive appeal from a district judge’s order. The receivership arose during enforcement proceedings following financial relief orders made after the parties’ divorce. The circuit judge had stayed part of the district judge’s order and agreed that the receivership would remain in abeyance pending the appeal hearing, but declined to suspend it formally. The husband argued that the circuit judge had prejudged the possible extension of the receivership to the sale of a French property and that he had been disadvantaged. The issue was whether the interlocutory challenge had merit or improperly anticipated the substantive appeal.

1. Application refused. The husband’s application sought to argue the substance of the pending appeal concerning the receivership. The issues raised were matters for the substantive appeal before the circuit judge, not for a further interlocutory appeal.
2. The application was a wholly disproportionate misuse of procedure. The receivership had been placed in abeyance pending the appeal hearing, and the district judge’s order had been stayed. The husband therefore suffered no material disadvantage requiring the receivership to be suspended.
3. The circuit judge had not prejudged any application to extend the receivership to the sale of the French property. He had expressly left that issue open. The property remained unsold, questions concerning its outgoings remained unresolved, and the parties disputed an outstanding payment exceeding £20,000.
4. The reasons supporting the original receivership remained relevant. Placing money with the husband’s solicitors provided limited security in light of the parties’ continuing dispute and the husband’s conduct. The application was without merit.
5. The husband was ordered to pay the costs of the application, including the respondent’s costs.

• High Court (Family Division): The husband’s application for permission to appeal against the circuit judge’s refusal to suspend the receivership was refused.
• Family Court at Bristol, circuit judge: The judge stayed the order concerning payment of the lump sum but refused to suspend the receivership, agreeing that it would remain in abeyance pending the appeal hearing.
• Family Court at Bristol, district judge: The district judge refused to discharge the receivership, increased the limit on the receiver’s remuneration to £40,000 and refused permission to appeal.