Sonal Kanabar v Dipak Maganal Kanabar (Deceased) & Anor

In a financial-remedy appeal, the death of the appellant does not permit the court to proceed as if the estate were represented. An estate has no legal personality until a personal representative is appointed. Without an effective appellant, the appeal is not properly constituted, and agreement by the surviving parties cannot cure the defect. Civil Procedure Rules 1998 rule 19.12 cannot be imported into family proceedings, which are governed by a separate procedural code. Where an adjournment is not justified, the appropriate course is to strike out the appeal notice under Family Procedure Rules 2010 rule 30.10 for the compelling reason that no legal person can prosecute it. The court left open whether an ordinary financial-remedy appeal can be redetermined after death outside the limited Barder v Caluori exception.

H appealed against a financial remedy order made by District Judge Birk in matrimonial proceedings involving three properties. H died intestate after permission to appeal had been granted. No letters of administration had been granted, and no person was willing to represent his estate.

Judge Rogers declined to adjourn, proceeded with the appeal in H’s absence, allowed it on procedural and matrimonial-property grounds, and set aside the district judge’s order without substituting a new order. A, the former wife, appealed. The central issues were whether the appeal could proceed without a personal representative, whether it should have been struck out, and what powers remained after H’s death.

Disposition

The appeal was allowed on ground 1. Judge Rogers’s order was set aside and District Judge Birk’s order was restored. The court did not determine the remaining grounds.

1. No effective appellant. An estate has no legal personality in the absence of a personal representative. Where an appellant dies intestate and no representative is appointed, there is no effective appellant and the appeal is not properly constituted. The agreement of the surviving parties cannot confer jurisdiction to proceed.
2. Applicable procedural code. Re Amirteymour [1979] 1 WLR 63 and Piggott v Aulton (deceased) [2003] EWCA Civ 23 supported the conclusion that proceedings cannot continue without a legally recognised party representing the estate. Rule 19.12 of the Civil Procedure Rules 1998 does not apply to family proceedings. The Family Procedure Rules 2010 are a separate procedural code and contain no equivalent provision. The rules concerning absence of a party cannot be extended to a deceased person, who is non-existent rather than merely absent.
3. Correct procedural disposal. The judge was entitled to refuse a further adjournment. Rule 4.4(1)(b) was not applicable because the proceedings had not involved an abuse of process. Rule 30.10 was available, however, and the absence of any legal personality able to prosecute the appeal was a compelling reason to strike out the appeal notice. The court distinguished Leave.EU Group Ltd and another v Information Commissioner [2022] EWCA Civ 109, which concerned an existing party who failed to attend.
4. Unresolved issues. The court declined to decide whether a financial-remedy order may be set aside or varied on an ordinary appeal after a party’s death where no Barder v Caluori event has occurred. It also declined to express views on the merits of the matrimonial-property grounds, given the prospect of further proceedings.

• Court of Appeal (Civil Division) allowed A’s appeal on ground 1 and restored the district judge’s order: [2026] EWCA Civ 582.
• Family Court at Nottingham, Judge Rogers, allowed H’s appeal, set aside the district judge’s order, and declined to substitute a new order on 17 June 2025.
• Family Court at Nottingham, District Judge Birk, made the financial remedy order following the final hearing on 5 December 2023.