RB (Adult) (No 2) , Re

I handed down my judgment in this matter on 30 September 2010: Re RB (Adult) [2010] EWHC 2423 (Fam). In paragraphs [33]-[36] I explained the unusual forensic context in which I had come to give judgment. In the circumstances I was not asked to make and have not made any order.

Subsequently, MF, by letter dated 8 October 2010, indicated that he was seeking costs and ‘compensation’ from the local authority. The Official Solicitor, by application dated 22 November 2010, sought costs against MF and (in part) against the local authority. The local authority made no application but indicated that it resisted any application made against it by either the Official Solicitor or MF.

I did not make any formal order (and no-one has asked that I do) but on 14 December 2010 I indicated, having received the parties’ observations on the point, that the matter should proceed as follows:

Pursuant to these directions, MF has submitted a letter from Newman Law, solicitors, dated 16 December 2010 (though actually sent later) which enclosed a number of documents, including a letter from MF addressed to me dated 29 December 2010. I understand these two letters to set out his case.

Since then MF has sent my clerk a number of emails. In an email sent on 19 January 2011 he said that “In the light of new evidence (OS wants money from LA and LA refuses to pay … ) and its ramifications as extensively analysed, in my application for costs and compensation” he seeks a “RE-TRIAL … in the name of FAIRNESS and JUSTICE.” Under cover of a further email dated 25 January 2011, he sent a copy of a letter from the Adjudicator dated 24 January 2011 (see paragraphs [126]-[131] of my previous judgment), indicating that he (the Adjudicator) had read my judgment and was disposed to await the outcome of any appeal from my decision. He asked MF to let him know by 21 March 2011 if any application for permission to appeal had been made and to supply him by that date with a copy of the order I had made on the basis of my judgment. (As I have already explained, there is in fact no order.) In another email later the same day, 25 January 2011, MF asked that “In the light of new evidence and the letter of the Adjudicator” I “consider [his] appeal.” In a further email sent on 27 January 2011, he wrote:

“In the light of recent developments I have to ask for permission to appeal and now I am preparing the application for it. As part of application for permission to appeal, I am required to include The Order. I would be grateful if you would let me know when I could have a copy.”

It is not clear whether the application referred to is an application to me or to the Court of Appeal.

I treat these recent emails from MF as making applications to me, as the trial judge, to direct a re-trial and/or give him permission to appeal. I understand his emails to indicate that the basis of both these applications is:

I deal first with MF’s application for permission to appeal.

The fact that there is no order is not, of itself, a bar to an appeal. There is jurisdiction in the Court of Appeal to hear an appeal from a fact-finding hearing even if there is no order: Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334; Re A (A Child) (No 2) [2011] EWCA Civ 12.

The grounds upon which the Court of Appeal can allow an appeal are limited. Permission to appeal will not be given unless (CPR 52.3(6)) either “the appeal would have a real prospect of success” or “there is some other compelling reason why the appeal should be heard.” In the present case, neither condition is met. I refuse permission to appeal.

Contrary to MF’s contention, there is no new evidence. The fact that the Official Solicitor is seeking an order for costs arising out of my judgment is not new evidence throwing any doubt on the correctness of my findings. The fact, as appears from his letter of 24 January 2011, that the Adjudicator is minded to found his determination in part upon one of my findings is not new evidence nor of itself any ground for giving permission to appeal. And the two letters of 16 December 2010 and 29 December 2010 setting out MF’s case contain no new evidence. They contain much material which is, no doubt, relevant to MF’s applications (yet to be heard) for costs and ‘compensation’ – I express no views on the point; that is for another day – but they do not, in my judgment, disclose any remotely arguable basis upon which MF could realistically hope to persuade the Court of Appeal to interfere. Insofar as they mount any challenge to my findings they are no more than an attempt to re-argue the case and to persuade me (or the Court of Appeal) to come to a different conclusion. They identify no basis – let alone demonstrate any properly arguable basis – upon which the Court of Appeal could interfere.

I should add that the application for permission to appeal is very significantly out of time. It will be noted that MF’s initial wish was to obtain a re-trial and that the first mention of any wish to appeal followed the reference to that possibility in the Adjudicator’s letter. Be that as it may, I refuse permission not because the application is out of time but because it is devoid of merit.

For essentially the same reasons I also refuse MF’s application for a re-trial. He has identified no irregularity in the proceedings and, as I have said, has produced no new evidence. In these circumstances there is simply no basis for a re-trial. A wish to have the opportunity of re-arguing a case in the hope that it will produce a different outcome does not begin to justify a request for a re-hearing.

For these reasons I dismiss both of MF’s applications. The matter will proceed in accordance with the directions I gave in December 2010.