Roger Bird assesses major changes in family cases proposed by the government


The question of appeals from the orders of district judges in ancillary relief cases has always been thorny. The essential problem is as follows.


Twenty-five years ago, many of the more involved applications for ancillary relief in county courts were dealt with by circuit judges. Over the past 20 years or so, district judges have come to deal with virtually all ancillary relief applications, including many difficult and big-money cases, and circuit judges have increasingly faded out of the picture. Cases of real difficulty, or great value, have been transferred to the High Court so that there has been no real role for circuit judges in this field.


Family affair: DCA has issued a consultation on appeals

The result has been that most circuit judges have lost their expertise in this area of law. This has presented a difficulty for them. In county courts, they hear appeals from district judges and so deal with sometimes complex cases where they accept that district judges are the experts and they no longer have any hands-on experience.

This has led to injustice, in that some appeals, which should have been allowed, have not been allowed because the appellate judge feared to venture into unknown territory, and other appeals, which should not have been allowed, have been allowed for reasons which practitioners have regarded as eccentric.


A related problem has been the form of the hearing. Under the (now obsolete) County Court Rules, which survived the advent of the Civil Procedure Rules 1998 (CPR) to apply to family cases, the hearing took the form of a rehearing. Therefore, in theory, the appellate judge could hear the whole application again. This was contrary to the principles for appeals established by the CPR, which do not permit a second hearing as of right and require an appellant to show where the lower court has gone wrong.


In an effort to bring about root-and-branch reform, the Department for Constitutional Affairs has now issued a consultation paper on appeals in family proceedings. The paper relies on the work done by the President's Ancillary Relief Advisory Group (PARAG) and the Family Appeals Review Group, and adopts the recommendations made by those groups. Assuming that the response will be favourable, new rules will come into force in April 2005.


The first change proposed is that an appellant requires permission to appeal when the decision to be appealed is an ancillary relief (or related) order, a financial order made under schedule 1 of the Children Act 1989, or a costs order arising out of any of those proceedings. The application for permission will have to be made to the district judge at the conclusion of the hearing. Where permission is not granted, or the application is made out of time, an application will be made, without notice, to the Family Division judge.


This is a radical change. Until now, parties have had the unfettered right to appeal; now it will be necessary to demonstrate, not just that the litigant is dissatisfied with the order, but that he has a reasonable prospect of success.


The second change is that the provisions of CPR part 52 (with the exception of rules 52.3(1) and 52.12) will apply to all these appeals. The significance of this, apart from the formal requirements as to notice of appeal, filing of documents and so on, is that rule 52.11 applies. This provides that every appeal will be limited to a review of the decision of the lower court unless the court considers that, in the circumstances of the individual appeal, it would be in the interests of justice to hold a rehearing. Unless it orders otherwise, the appeal court will not receive oral evidence or evidence that was not before the lower court. The appeal court will allow an appeal where the decision of the lower court was wrong or because of a serious procedural or other irregularity.


This is a significant change in principle. It may represent the way in which many appeals have been dealt with until now, but this has been a more or less informal arrangement, and the principle and the procedure are now clear beyond doubt. Provided the district judge has correctly exercised his discretion, and no new evidence of a compelling nature which could not have been available at the original hearing has come to light, the appeal court will not interfere with the order of the lower court.


The route of appeal is dealt with in the draft Destination of Appeals - Family Proceedings Order 2004, paragraph 2 of which provides that an appeal in an ancillary relief application will lie to a judge of the High Court. However, other appeals, for example on procedural issues, will continue to lie to the circuit judge.



The consultation paper also makes proposals for changes in the costs rules relating to ancillary relief, again based on the work of PARAG. It proposes that the general principle that costs follow the event should no longer apply, and that the practice of writing 'Calderbank letters' should cease. Family cases differ from other forms of civil litigation, being more a misfortune falling on both parties rather than the result of a decision to sue someone. It is also difficult to identify clear winners and losers, nor is it often desirable to try to do so.



The proposed general rule is that there would be no order as to costs. The parties would have to file a statement of costs (in a revised Form H) to enable the court to assess their reasonable costs as part of their needs or liabilities. The court would retain the power to make an order for costs at any stage of the proceedings if it considered it appropriate because of the unreasonable conduct of a party in relation to the proceedings. Litigation misconduct of various sorts may be condemned in costs.


Without prejudice letters would no longer be relevant, though the court may take an open offer into account when deciding whether or not a party has acted unreasonably. However, it must be emphasised that merely to beat an open offer, or exceed one's own open offer, would not result in an order for costs; it would be necessary to show that the open offer made by the unsuccessful party was so outside the limits of possible orders that the court could have made as to amount to plainly unreasonable conduct.


In line with the CPR, the court may also decide whether it was reasonable for a party to raise, pursue or contest a particular allegation and make a costs order limited to that issue.


District Judge Roger Bird sits at Bristol County Court and High Court District Registry