Michael James Augousti v Amrit Kaur Matharu

On an application for permission to appeal in a financial remedy case, the court should apply the appellate standard appropriate to the nature of the challenged decision. Findings of primary fact require a realistic prospect of showing absence of evidence, misunderstanding of evidence, or a conclusion no reasonable judge could reach. Discretionary and case-management decisions attract highly restrained review.

The Ladd v Marshall test governs applications to adduce fresh evidence after the evidential phase, while judgment is reserved, and on appeal. It is applied with progressively increasing rigour. A real prospect of success means a realistic rather than fanciful prospect; the court considered that a likelihood of about 25% would ordinarily satisfy that test. A totally-without-merit order is appropriate where the court is pretty sure that the appeal will fail.

The husband sought permission to appeal from a financial remedy judgment of HHJ Evans-Gordon dated 21 April 2023. He advanced 21 grounds concerning fresh evidence, case management, findings of fact, the assessment of needs and resources, maintenance, housing, arrears, non-disclosure and a clean break. He also sought permission under FPR 30.12(2)(b) to adduce a further witness statement.

The application was made out of time in relation to certain case-management grounds. The central issues were the applicable appellate standards, the test for fresh evidence at different procedural stages, the meaning of a real prospect of success, the threshold for a totally-without-merit order, and whether any proposed ground had a realistic prospect of success.

1. Disposition. Permission to appeal was refused on every ground. The application for permission to adduce fresh evidence under FPR 30.12(2)(b) was refused. Both applications were declared totally without merit. An extension of time for the out-of-time case-management grounds was refused.
2. Appellate standards. Applying Re B (a Child) and the summary in Wales & West Utilities, an appeal against primary facts requires a realistic prospect of showing that the finding lacked evidential support, misunderstood the evidence, or was one no reasonable judge could reach. Evaluation of facts attracts similar, though somewhat less forceful, restraint. Review of discretion is highly limited and is available for material error, reliance on irrelevant matters, omission of relevant matters or plain irrationality. The standard for case-management decisions is similarly close to Wednesbury review: Re TG, approved in Re H-L and followed in Lindner.
3. Fresh evidence. The Ladd v Marshall requirements apply, in substance, to evidence offered after the evidential phase, while judgment is reserved, before perfection of the order, and on appeal under FPR 30.12(2)(b). The requirements become progressively more rigorous as the application is made later. The proposed evidence did not satisfy the important-influence requirement and could not justify delaying judgment.
4. Permission and merit. A real prospect of success is realistic, not fanciful, and need not be probable. The judge expressed the view that a likelihood of at least 25% would ordinarily satisfy the identical test used for an interlocutory injunction. A totally-without-merit order means that the court is pretty sure the appeal will fail; it is not a moral condemnation.
5. Needs and clean break. The judge’s needs assessment was protected by the broad discretionary nature of the needs principle and by findings that substantial capital would likely be absorbed by creditors and that greater maintenance was unaffordable. A formulaic share of future dividends was correctly rejected. The clean-break order was consistent with section 25A of the Matrimonial Causes Act 1973.

The judgment itself was a first-instance determination of an application for permission to appeal from the financial remedy judgment of HHJ Evans-Gordon dated 21 April 2023. The proposed appeal was not permitted.