Thursday, July 28, 2011

N v N: The limits of appeal

Family Law Week has published two judgments in the case of N v N, which went before the Court of Appeal at the end of June. The case involved a husband's appeal against an order further extending the term of a maintenance order.

In the main judgment, Lord Justice Thorpe considered the husband's appeal. Briefly, the facts were that in January 2005 a periodical payments order had been made by consent, which required the husband to pay to the wife £1,000 per month for a period of five years until 24 December 2009. There was no section 28(1)(a) bar. The wife applied to extend the term of the order and the District Judge extended the maintenance term to April 2012, with a s.28(1)(a) bar. The wife appealed against this order, and the term was extended to the end of August 2015, the s,28(1)(a) bar was set aside and beyond August 2015 there was to be a nominal joint lives order. The husband sought permission to appeal against this order.

Lord Justice Thorpe found that the appellate judge had wrongly interfered with the discretion of the District Judge (paragraph 21):
"It is very important that the limited function of the circuit judge in hearing appeals from the District Judge should be recognised and honoured. This is not a process that allows any rehearing de novo. It is not a process that allows for the admission of fresh evidence unless exceptional circumstances demand that. Essentially much of the speech of the wife on that occasion was an endeavour to introduce a fresh view of the history and fresh evidence ... That could not be admitted in any principled way and in that lies the explanation for a variation which is particularly substantial in that the election for a joint lives order is a fundamental departure from what the parties had agreed ... in 2005."

Accordingly, the application for permission was granted, the appeal was allowed, the order of the appellate judge was set aside and the order of the District Judge was restored.

Lord Justice Longmore and Lord Justice Stanley Burnton gave consenting judgments.

The husband sought an order for costs, and this was dealt with in a separate judgment. He relied not only upon his success, but also upon a 'Calderbank letter'. However, Lord Justice Thorpe did not accept either argument. As to the letter, it was superseded by another settlement letter, which required the wife to pay the husband's costs, and therefore "was plainly inconsistent with an offer to settle". As to general principle, there was no order for costs in the court below, and he agreed that that had been "a wise provision":
"Given their respective financial circumstances, given the interests of the children, I would simply say no order as to costs in this court as in the court below".

Again, Lord Justice Longmore and Lord Justice Stanley Burnton gave consenting judgments.

1 comment:

  1. Please read case Flavell v Flawell

    "I reject Mr Berkin's primary submission. The very words of section 31(1) make it plain that there is unrestricted power to vary. The Court's jurisdiction is afforded by section 31(1) and there is nothing in the language of that section which requires that jurisdiction be accepted only if ther is some exceptional
    circumstance or some material change".

    "Mr Berkin's having failed in his submission that the Judge had no jurisdiction, is therefore driven, it seems to attack his findings.."

    ReplyDelete

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