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Family Law

The leading authority on all aspects of family law

02 DEC 2013

Evidence, Practice and Procedure: Appeal against Refusal of a Consent Order

David Burrows

Solicitor Advocate

@dbfamilylaw

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsCan a consent order applicant (or indeed one or both parties) appeal against a district judge's refusal to seal a consent order. The short answer is yes: Rickards v Rickards [1990] 1 FLR 125, CA. By such appeal, the parties might save the expense of answering lengthy questions from the court, or of risking a full contested hearing against the background of the district judge's view of some perceived weakness in the order. (Grounds for such an appeal are addressed in a later note Evidence, Practice and Procedure: Financial Agreements: A ‘Concluded Agreement' Test?: eg by reference to the autonomy principle in Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42, [2010] 2 FLR 1900).

 In Rickards the issue of an appeal arose in ancillary relief proceedings where the husband had failed to file a notice of appeal in time, and where the circuit judge refused his later application for leave to extend time. The judge gave him leave to appeal that refusal. However, said Lord Donaldson MR (sitting with Balcombe and Nicholls LJ): did the appellate court have ‘any jurisdiction to entertain an appeal from the judge's refusal of an extension of time for appealing to him'? The court's jurisdiction arose from County Courts Act 1984 s 77(1), which then provided as follows (additions since 1990 are in italics):

 (1) Subject to the provisions of this section and the following provisions of this Part of this Act, and to any order made by the Lord Chancellor under Access to Justice Act 1999 s 56(1), if any party to any proceedings in a County Court is dissatisfied with the determination of a judge or jury, he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by rules of the Supreme Court.

 The Court of Appeal had to decide whether stare decisis principles prevented it from considering Mr Rickards's appeal - an earlier case, Podberry v Peak [1981] Ch 344 had suggested that they had no jurisdiction in such cases. In Rickards they held that Podberry v Peak had been decided wrongly (per incuriam) and that therefore they could consider the question afresh. It had been hoped, they said, that the House of Lords might have an opportunity to correct Podberry v Peak, but this had not happened. Nicholls LJ explained his view of the stare decisis rule here as follows:

 ‘Does this mean that the Court of Appeal is bound to go on indefinitely refusing to entertain a particular class of appeals, even though in practice the House of Lords is unlikely to have the opportunity to consider the decision in Podberry v Peak? I am so oppressed by the injustice which this might well cause that I cannot think that this is the law today. This would indeed bring the law into disrepute. For the reasons given by the Master of the Rolls I think that this case is in a very special category [see eg Lord Greene MR in Young v Bristol Aeroplane Co. Ltd [1944] 1 KB 718, 729 and Sir Raymond Evershed MR in Morrelle Ltd v Wakeling [1955] 2 QB 379, 406].'

 In Rickards the Court of Appeal based their decision on the wording of s 77(1), which, for practical purposes, remains the same today. Access to Justice Act 1999 s 56(1) deals only with alternative destinations of appeals (now see Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011, which is made by the Lord Chancellor in ‘exercise of the powers conferred by section 56(1)') and does not affect the question posed by this note.

 Taking the ordinary wording of s 77(1), as applied by Rickards, it leaves the question of whether a refusal (eg of a consent order) is a ‘determination' in accordance with s 77(1). If it was held so to be in Rickards (albeit that there it related to permission to appeal), the same principle in law would appear to apply to any refusal. This would be the case also of a consent order.

 The argument may be re-inforced - in slightly more mundane terms - by reference to FPR 2010 Part 18. A financial remedy consent order has to be made by the special procedure in FPR 2010 r 26. All other family proceedings consent orders are made under r 18.9(1)(b) which does not appear to contemplate refusal by the court of an agreed order (Part 18 does not give a right to set aside or vary a refusal to make a consent order).

 Finally, under FPR 2010 Part 30 - as was not the case in 1990 - the appellant will require permission to appeal from the district judge and, failing that, from the judge; and at the permission stage the district judge might be expected to give a reasoned decision as to why the order was refused.

 David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

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