Philip John Mainwaring v Susan Claire Bailey

Permission to appeal requires a real, realistic rather than fanciful, prospect of success, or another compelling reason to hear the appeal. An appellate court must respect the trial judge’s evaluation of evidence and may intervene only where the decision was wrong or unjust because of procedural irregularity. Judgments should be read as a whole and not subjected to narrow textual analysis. Fresh evidence may be admitted after considering its availability at trial, likely influence on the result and apparent credibility. The appeal was dismissed.

The appellant husband appealed from a financial remedy order made by HHJ Furness KC in the Family Court at Cardiff. The order divided assets of approximately £434,000 after accounting for housing needs, liabilities and expenditure. The husband challenged the treatment of a civil judgment concerning a loan, the valuation of a boat, the assessment of mortgage-raising capacity and the fairness of the outcome. He withdrew a ground alleging perceived bias. The High Court conducted a rolled-up hearing on permission and the appeal, admitting fresh evidence and considering whether there was a realistic prospect of success or another compelling reason to hear the appeal.

1. Outcome. The appeal was dismissed. Grounds 2 and 3 were certified as totally without merit. No civil restraint order was made.
2. Appellate restraint. Permission requires a real, realistic rather than fanciful, prospect of success or another compelling reason to hear the appeal. An appellate court should not substitute its own discretion or re-try factual issues. It should assume, unless shown otherwise, that the first-instance judge understood the task, considered the evidence as a whole and took relevant matters into account. A judgment must be read as a whole and not subjected to narrow textual analysis.
3. Civil judgment and liabilities. HHJ Furness KC correctly understood the civil judgment and order. The civil court had determined that the €160,000 was a joint loan but had made no finding about interest. The family judge was therefore entitled to determine, on the evidence before him, whether interest, administrative charges and the further £5,200 loan were joint liabilities.
4. Financial remedy assessment. The first-instance judge properly applied the statutory factors, sharing principle and needs principle, and stood back to assess fairness. He was entitled to retain the agreed £88,000 boat valuation, decline compensation for berthing and maintenance costs after the husband chose to retain a wasting asset, and infer modest mortgage capacity from the husband’s non-disclosure and the evidential circumstances. The outcome was within the range reasonably open to him.
5. Fresh evidence and new matters. The fresh evidence did not show that the first-instance findings were irrational or outside the range of reasonable decisions. The allegation of the wife’s cohabitation was not an issue below and was unsupported by admissible fresh evidence; an appeal is not a re-hearing.
6. Directions. Counsel for the husband was directed to draft an order within 48 hours. Costs submissions were to be filed if the parties could not agree.

• High Court (Family Division): appeal from the Family Court at Cardiff dismissed; grounds 2 and 3 certified totally without merit. The husband withdrew ground 1.
• Family Court at Cardiff: HHJ Furness KC made a clean break financial remedy order on 14 February 2024.