McHugh v McHugh

J U D G M E N T

1. LORD JUSTICE LEWISON: The resolution of the matrimonial finances of Mr and Mrs McHugh was considered by District Judge Nightingale at a final hearing that took place on 10 October 2012. She handed down a judgment on 8 November 2012 and made an order that day. The order recited that it was made "upon hearing the oral evidence of the parties". However, after extensive investigations it turned out that neither party gave evidence on oath.

2. At the hand down of the judgment Mr McHugh applied for permission to appeal, which District Judge Nightingale refused. He then applied to the Circuit Judge for permission to appeal. One of his grounds of appeal was that inadequate time was available for either party to be placed under oath and he had not been able to cross-examine Mrs McHugh under oath. Permission to appeal was refused on the papers but at the renewed oral hearing on 11 September 2013 His Honour Judge Caddick granted permission to appeal limited to two grounds, which he set out in paragraph 1 of his order as follows:

"The husband is permitted to so appeal but limited to the consideration of the grounds (1) that the District Judge's approach to the treatment of the wife's inheritance from her aunt's estate was wrong, both in principle and in refusing adequate disclosure to establish the full amount thereof and (2) that the District Judge should not have ordered an immediate sale of the matrimonial home but should have postponed it and, if so, the terms thereof."

3. In his judgment of 5 November 2013 His Honour Judge Caddick allowed the appeal in part, largely on the ground that Mrs McHugh had deliberately concealed the size of the inheritance from her aunt, leading Judge Caddick to award Mr McHugh a greater proportion of the proceeds of sale of the matrimonial home than District Judge Nightingale had awarded.

4. Mr McHugh then applied for permission to appeal to the Court of Appeal on a number of grounds. These grounds included:

"No evidence has been given under oath. Neither party has ever answered any question under oath throughout the duration of all hearings for this financial remedy case".

5. Following investigation, on 8 October 2014 Sir Robin Jacob gave permission to appeal:

"Granted solely in respect of the issue concerning the failure of the District Judge to swear in the witnesses."

6. In the box headed "Information for directions to the parties" he added:

"To save time it may be appropriate for the parties to agree that the appeal be allowed by consent with an order for an expedited retrial."

6. On 15 October that suggestion was taken up by one of the lawyers in the Civil Appeals Office in an email to Mrs McHugh. However, Mr McHugh declined to consent and so there matters stayed.

7. There is at once a jurisdictional problem. The Court of Appeal is a court whose jurisdiction, that is to say its powers, are both conferred by Acts of Parliament and limited by Acts of Parliament. Section 54(4) of the Access to Justice Act 1999 provides:

"No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)."

8. Permission to appeal against District Judge Nightingale's order was required by Rule 30.3(1) of the Family Procedure Rules 2010 ("the FPR"). Upon her refusal of permission an application for permission could be made to the appeal court, here the Circuit Judge, under Rule 30.3(3)(b). The appeal court, here the Circuit Judge, had the power to limit the issues to be heard under Rule 30.3(8)(a). That is what His Honour Judge Caddick did. He necessarily refused permission to appeal on the “no sworn evidence” ground of appeal.

9. Mr McHugh has submitted that the “no sworn evidence” ground was fundamental to all the other grounds and that therefore by giving permission to appeal on the two grounds identified in his order Judge Caddick must necessarily also have been giving him permission to appeal on the no sworn evidence point.

10. I do not accept that argument. It is quite clear both from the order itself and from the way that Judge Caddick approached the two questions upon which he gave permission to appeal in his judgment that he did not give permission to appeal on the “no sworn evidence” point.

11. Thus, as Brooke LJ explained in Moyse v Regal Mortgages Limited Partnership [2004] EWCA Civ 1269, [2005] CP Rep 9:

"Parliament has made it absolutely clear by section 54(4) of the Access to Justice Act 1999 that if an appeal court refuses permission to appeal to itself, on the grounds that there is no real prospect of success on the appeal and there is no compelling reason why it should hear the appeal, that is the end of the day. It is Parliament's wish and intention that resources should not be devoted to continuing appeals at higher levels if an appeal fails to cross the threshold test of permission to appeal."

12. The same principle applies in family cases (see Re C (Children) [2013] EWCA Civ 1158, [2014] 2 FLR 147).

13. Here permission to appeal was given on limited grounds. I have already said that I disagree with Mr McHugh's submission that that limited permission necessarily encompasses the “no sworn evidence” point.

14. Where permission to appeal is given on limited grounds it is not open to an appellant to broaden the grounds on the hearing of the appeal itself. In Fieldman v Markovic [2001] CP Rep 119 Vice Chancellor Morritt put it thus:

"If the lower court has refused permission or has granted permission subject to conditions or limitations then that order may be revisited on application to the appeal court. Likewise if the appeal court has refused permission or has granted it subject to conditions or limitations on the papers then that order may be revisited by another judge of the court on an oral application. But where the appeal court has heard the application in court and refused permission or granted it subject to conditions or limitations it is not open to another judge or judges of that court to revisit that decision. The rules do not permit any further application for permission to that court following the making of an order on an application heard in court."

15. In the decision of this court in James v Baily Gibson & Co [2002] EWCA Civ 1690, [2003] CP Rep 24 at paragraph 8, May LJ said:

"If, after an oral hearing of an application for permission to appeal, limited permission is given on one or more issues but refused on others the applicant cannot renew the application on the issues on which permission has been refused at the hearing of the appeal."

16. The important point to grasp is that the appeal in the present case is the appeal from District Judge Nightingale to Judge Caddick in relation to which permission was granted on limited grounds following an oral hearing. It is not therefore open to Mr McHugh to argue the no sworn evidence point on the hearing of the appeal itself before His Honour Judge Caddick.

17. This is all reflected in Practice Direction 30A to the FPR, which says:

"4.18 Where a court under rule 30.3 (Permission) gives permission to appeal on some issues only, it will –

(a) refuse permission on any remaining issues; or

(b) reserve the question of permission to appeal on any remaining issues to the court hearing the appeal.

...

4.20 If the appeal court refuses permission to appeal on the remaining issues without a hearing and the applicant wishes to have that decision reconsidered at an oral hearing, the time limit in rule 30.3(6) (Permission) shall apply. Any application for an extension of this time limit should be made promptly. The court hearing the appeal on the issues for which permission has been granted will not normally grant, at the appeal hearing, an application to extend the time limit in rule 30.3 (6) for the remaining issues.

4.21 If the appeal court refuses permission to appeal on remaining issues at or after an oral hearing, the application for permission to appeal on those issues cannot be renewed at the appeal hearing (see section 54(4) of the Access to Justice Act 1999)."

18. It follows, in my judgment, that since the Circuit Judge give limited permission to appeal no further ground of appeal can be pursued on a second appeal. Mr McHugh says that he has been granted permission to appeal. But if Sir Robin Jacob had no power to give permission that argument is unsound. Mr McHugh has also submitted that the grant of permission has been acted on in the sense that the Court of Appeal has offered to allow the appeal by consent and remit the case for a new trial. There was, of course, no agreement on the disposal of the appeal. He says also that the proceedings are so flawed that we should hear the appeals and reminds us that the welfare of his child is at stake. But the question we are faced with is a hard edged legal question; it is not a question of discretion. Prejudice to an appellant cannot confer jurisdiction on a court limited by statute where the statute does not give the court that jurisdiction. Either we have the power to hear the appeal or we do not.

19. For the reasons I have given I consider that we do not have power to hear the appeal on the ground for which Sir Robin has apparently granted permission.

20. What then should we do now? Under CPR Part 52.9 (1) the Court of Appeal may set aside the grant of permission to appeal but under CPR Part 52.9 (2) it will only do so where there is a compelling reason for doing so.

21. In Athletic Union Of Constantinople v National Basketball Association (No 2) & Ors [2002] EWCA Civ 830, [2002] 1 WLR 2863 a High Court Judge had refused permission to appeal to the Court of Appeal against an arbitration award. A single Lord Justice later granted permission. The Court of Appeal held that he had no jurisdiction to grant permission to appeal as the final decision lay with the High Court Judge. The Court of Appeal set aside the grant of permission to appeal under CPR Part 52.9 (1) on the ground that the court had no jurisdiction to hear the appeal itself and consequently the single Lord Justice had no power to grant permission to appeal. A lack of jurisdiction is a compelling ground for exercising the power to set aside the grant of permission to appeal. In my judgment, that is what we must do in this case.

22. LADY JUSTICE BLACK: I agree.

23. LADY JUSTICE KING: I also agree.