BSA v NVT

An appellate court considering permission to appeal should not substitute its own assessment for that of the first-instance judge merely because it might have reached a different conclusion. Intervention is justified where there is an error of law, an unsupported factual conclusion, material failure to take account of or excessive reliance on a significant matter, procedural unfairness causing injustice, or an exercise of discretion outside the range of reasonable disagreement.

Fresh evidence on appeal must satisfy the Ladd v Marshall criteria and the overriding objective. A costs allowance application requires sufficient evidence of the applicant’s current resources and inability to fund representation, borrow, or obtain other funding; full and frank disclosure is not an absolute prerequisite. A recital in a consent order may be enforced where the court had jurisdiction to make an order in like terms.

The father appealed from orders made by HHJ Oliver in consolidated Schedule 1 and child-arrangements proceedings. The first-instance judge ordered financial disclosure, endorsed an earlier consent order with a penal notice, and made a costs allowance order of £45,967 in favour of the mother.

The father sought permission to appeal and also sought to adduce extensive further evidence, obtain disclosure concerning the mother’s litigation funding, and amend his grounds. He challenged enforcement of the consent order and contended that the costs allowance order was made without adequate disclosure, proper attempts to obtain borrowing, or sufficient consideration of an offer by him to advance funds.

The central issues were whether the proposed fresh evidence could affect the appeal, whether the consent order was enforceable, and whether the costs allowance order disclosed an arguable error of law or discretion.

1. Applications and permission. The applications to adduce further evidence, obtain disclosure, and amend the grounds were dismissed. The proposed evidence did not satisfy the second and third limbs of Ladd v Marshall. It was either immaterial, credible evidence did not establish a likely influence on the result, or concerned subsequent events and matters better addressed in the substantive proceedings. The application was described as totally without merit.

2. Enforcement. A recital in a consent order may be enforced as if it were an order where the court had jurisdiction to make an order in like terms. The December 2018 order was capable of being interpreted as a settlement within Schedule 1. Section 1(2)(d) of Schedule 1 to the Children Act 1989 authorised an order for settlement of property for the benefit of a child. The penal notice attached to the December order was therefore permissible. The argument concerning the later long-lease mechanism did not justify permission because that was not the order under appeal.

3. Costs allowance. The court had jurisdiction to make the costs allowance order. The relevant inquiry was whether the mother required funding to secure equality of arms and could not obtain representation from her own resources, borrowing, legal aid, or other sources. Full and frank disclosure was not required as an absolute condition. The first-instance judge had applied the correct test, had the benefit of the mother’s financial disclosure, and was entitled to find a risk of inequality of arms.

4. The mother’s previous approaches to lenders did not make the evidence incapable of supporting the order. Nor was it appropriate to require her to use money intended for the children’s benefit to meet her legal costs. The father had not shown a realistic prospect of success or any other compelling reason for an appeal.

5. The refusal of permission was affirmed, the stay was discharged, and the father was ordered to pay the mother’s assessed costs of £25,500 plus VAT within 14 days.

1. High Court (Family Division) — Permission to appeal from the orders of HHJ Oliver was refused. The applications for fresh evidence, disclosure and amendment were dismissed, and the stay was discharged.