WALES/ENGLAND – ‘Unrepentant’ judge grants permission to appeal despite contrary view as to test

Mostyn J applies ‘illogical’ Court of Appeal test


Family Law Week


Mr Justice Mostyn has granted permission to appeal in a case involving s 13 of the Matrimonial and Family Proceedings Act 1984 despite misgivings as to the likelihood of the appeal succeeding.

In BAJ v RRA [2011] EWHC 4070 (Fam) the wife had sought leave to apply for financial relief following a foreign divorce pursuant to s.13 Matrimonial and Family Proceedings Act 1984. The parties were married in Pakistan in October 2008. The husband was working for a Japanese bank in London at the time and was joined in London by the wife in December 2008.  The marriage broke down in November 2010. The husband went to Pakistan and pronounced talaq shortly thereafter. The wife subsequently presented a petition in the Brentford County Court but this was dismissed on proof of foreign divorce.

The former matrimonial home was a house in Wimbledon, purchased for £425,000 with the assistance of a mortgage of £240,000 and £130,000 from the husband’s father (which the husband stated was an investment, but this was disputed by the wife). The wife mounted a claim to a share of the equity in the former matrimonial home and also in relation to certain chattels and jewellery.

Mostyn J stated that the test under s.13 is that the court shall not grant leave unless there is a substantial ground for the making of an order, and recalled that in Agbaje v. Akinnoye-Agbaje [2010] 1 AC 628 Lord Collins explained that criterion by saying that it must be a solid claim.

In his earlier decision of CG v IF [2010] EWHC 1062 (in which he had endeavoured “to insert some intellectual discipline to the exercise” [para 6]) Mostyn J had held that unless the court is satisfied on a probability scale of 50% or more that there would be a substantive award, leave should not be granted. He noted that this approach had been overturned “roundly” by the Court of Appeal in Traversa v Freddi [2011] EWCA Civ 81 and a greater than 50% likelihood of success was not necessary.

Although Mostyn J remained “unrepentant” [para 8] about his views expressed in CG v IF, he was bound by the decision of the Court of Appeal, “however illogical I think it may be” [para 8]. Had he been applying his previous test he would not have granted leave, but applying the Court of Appeal’s test which was simply “to weed out the truly hopeless cases” [para 9] he considered leave should be granted.

Mostyn J concluded by encouraging the parties to settle as the wife’s claims were “if not speculative, are certainly modest in their scale of claim” [para 10].

The applicant appeared in person. Puneet Rai of Thomas More Chambers (instructed by Crescent Law) appeared on behalf of the respondent.

For the judgment and case summary, written by Thomas Dudley of 1 Garden Court, on which this news item is based, please click here.


SOURCE: Family Law Week

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