Financial remedy appeals after an appellant’s death: no personal representative means no properly constituted appeal; strike out under FPR r 30.10

Case: Kanabar v Kanabar Neutral citation: [2026] EWCA Civ 582
Court: England and Wales Court of Appeal (Civil Division) (Lewison LJ, Baker LJ, Yip LJ)
Date: 15 May 2026
Appeal from: Family Court at Nottingham (HH Judge Rogers (sitting in retirement)), which had allowed an appeal from District Judge Birk

1. Introduction

This Court of Appeal decision addresses a procedural problem that is likely to recur in financial remedy litigation: what an appellate court should do when an appellant to a financial remedy order dies intestate after permission to appeal has been granted, and nobody is willing (or able) to obtain a grant of letters of administration so as to represent the deceased’s estate.

The underlying dispute was between the deceased former husband (“H”), his first wife (“A”), and H’s widow (“B”). The substantive litigation concerned three properties and (crucially for the earlier stages) contested beneficial ownership arguments said to involve third parties. However, the Court of Appeal ultimately decided the case on jurisdiction and procedure: whether there was any legally recognised appellant capable of prosecuting the appeal before HHJ Rogers, and what the correct disposal was once it became clear there was not.

2. Summary of the Judgment

The Court of Appeal allowed A’s appeal on the procedural ground that, because H died intestate and no letters of administration had been granted, there was no person with legal personality authorised to act for H’s estate. As a result, the appeal before HHJ Rogers was not properly constituted and should not have proceeded on the merits, even with the agreement of A’s counsel and B (then unrepresented).

The court held that the correct course (once an adjournment was refused as futile) was to strike out the appeal using FPR r 30.10 (identical in terms to CPR r 52.18), because the absence of any legally recognised appellant amounted to a compelling reason. The court restored District Judge Birk’s original financial remedy order.

The court declined to determine broader, difficult issues about the appellate court’s powers to substitute a new financial remedy order after a party’s death (discussed in light of Barder and Unger), because those questions did not need to be decided once the appeal was disposed of for want of a properly constituted appellant.

3. Background and Procedural History (condensed)

  • H and A married in 1999, separated between 2006–2008, divorced in 2010; H later married B (2012) and had a child with B.
  • In 2021, long after divorce, H applied for financial relief in the original divorce proceedings.
  • District Judge Mason directed a potential third-party intervention concerning beneficial interests in three properties.
  • District Judge Birk later refused the intervention and proceeded to a final hearing (Nov 2023).
  • District Judge Birk made a final financial remedy order (Dec 2023), including sale of one property and transfer/retention arrangements.
  • H appealed; permission to appeal was granted.
  • H died intestate (July 2024). No administrator was appointed at the time of the circuit judge appeal.
  • HHJ Rogers refused a further adjournment, nevertheless heard the appeal on the merits despite no personal representative, allowed it, and set aside the district judge’s order without substituting an alternative.
  • A appealed to the Court of Appeal. An advocate to the court was appointed at Cobb LJ’s direction to address the procedural questions.

4. Issues

4.1 The central procedural issue

Where a financial remedy appellant dies intestate and no personal representative exists, can the appeal proceed (and be allowed) notwithstanding the absence of any legally recognised appellant? If not, how should the appellate court dispose of the appeal?

4.2 The “power to substitute” issue (left unresolved)

If an appeal is properly constituted (i.e., with a representative party) and succeeds after a party’s death, does the appellate court have power to substitute a different financial remedy order, and on what conceptual basis, given the Supreme Court’s reaffirmation in Unger that the 1973 Act creates personal rights ending on death (subject to the limited Barder exception)?

5. Analysis

5.1 Precedents and authorities cited, and how they shaped the result

(a) Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22 (“Unger”)

Unger was central to the discussion but not determinative of the outcome. The Court of Appeal used it primarily for two propositions:

  • Orthodoxy reaffirmed: claims for financial relief under the Matrimonial Causes Act 1973 (and Part III of the 1984 Act) are generally personal rights and obligations that end on death, and cannot be pursued against the estate, subject to the limited Barder line of authority.
  • Procedural survival is conditional: although the “proceedings survive” in a procedural sense, that is only “so long as a suitable representative party is appointed to act on behalf of the estate” (as HHJ Rogers had noted). The Court of Appeal’s key move was to treat the absence of a representative not as a mere procedural irregularity but as a jurisdictional/practical impossibility: without a person recognised by law, there is no appellant at all.

Importantly, the Court of Appeal did not use Unger to decide the “power to substitute” question; it treated that as a conundrum for a future case with proper representation on both sides.

(b) Barder v Caluori [1988] AC 20 (“Barder”)

The court relied on Barder for two analytically distinct points:

  • Appeal continuity in principle: Lord Brandon’s observations (including endorsement of Purse v Purse) support the idea that an appeal need not lapse merely because a party dies; rather, “procedural steps have to be taken to substitute another party for the party who has died.”
  • But substitution is essential: the Court of Appeal treated this as reinforcing the requirement of a representative, not as permitting the appeal to proceed without one.

The decision also framed (without deciding) the modern debate: whether appellate redetermination after death is confined to Barder-type events or is a more general incident of appellate jurisdiction (especially given FPR r 30.11(1), that the appeal court has the powers of the lower court).

(c) Sugden v Sugden [1957] P 120; and the older “abatement” line

The judgment situates the case against the historic view (derived from a long line including Sugden v Sugden) that matrimonial financial claims do not survive death. Although that orthodoxy was not directly applied to dispose of the appeal, it formed part of the interpretive backdrop to why Unger treats post-death financial remedy adjudication as exceptional.

(d) Purse v Purse [1981] Fam 143

Cited via Barder to show that statutory appellate rights can continue notwithstanding death, but only with substitution of a proper party so the appellate process can function lawfully.

(e) The “legal personality” requirement: Re Amirteymour [1979] 1 WLR 63 and Piggott v Aulton (deceased) [2003] EWCA Civ 23

These were decisive. The Court of Appeal extracted the core civil-procedure principle that:

  • Proceedings in personam require a defendant (or appellant/respondent) with legal personality.
  • An “estate” is not a legal person; absent personal representatives, proceedings may be issued but cannot be continued.

Arden LJ’s formulation in Piggott v Aulton (deceased) that “The estate of a deceased person is not such a party” anchored the conclusion that HHJ Rogers could not treat the appeal as “properly constituted.”

(f) CPR rule solutions that do not exist in the FPR: CPR r 19.12 and the family/civil divide

The court’s reasoning was sharpened by a structural point: CPR r 19.12 (allowing a claim to proceed without a personal representative, or appointing one) is a civil rule that does not apply to family proceedings. The judgment traces why: the FPR are a separate procedural code; there is no longer a “CPR/RSC/CCR apply subject to family rules” gateway like the old Family Proceedings Rules 1991 r 1(3).

This is practically important: what might be curable in civil litigation by representation orders is not straightforwardly available in financial remedy appeals, making the absence of a personal representative more stark.

(g) Dismissal for non-attendance distinguished: Leave.EU Group Ltd and another v Information Commissioner [2022] EWCA Civ 109; [2022] 1 WLR 1909

The court accepted that appellate courts can dismiss appeals for failure to attend, but treated that as applying to an existing party who defaults, not to a situation where the “appellant” is legally non-existent.

5.2 The Court’s legal reasoning on the procedural disposal

(1) No grant of administration = no authority to act

The court drew the executor/administrator distinction: executors may in some contexts act before probate; administrators derive authority only from the grant. Here, H died intestate and no letters of administration had been granted at the relevant time, so nobody had authority to conduct litigation on behalf of the estate.

(2) The “absent party” tools are not a substitute for legal personality

The court rejected the idea that provisions allowing proceedings to continue in a party’s absence (e.g., s.31F(7) of the Matrimonial and Family Proceedings Act 1984; FPR r 18.12) could justify proceeding when the “party” has died and is unrepresented. Absence is different from non-existence.

(3) Agreement of the attending participants cannot confer jurisdiction

HHJ Rogers proceeded partly because A’s counsel did not seek advantage and B wanted finality. The Court of Appeal held that such agreement could not cure the defect: there must be an appellant with legal personality.

(4) Adjournment may be possible, but here was rationally refused; therefore proceedings had to end

The Court of Appeal accepted that an adjournment to permit a grant of representation could have been ordered, but HHJ Rogers had made clear findings (delay already significant; no steps taken; low prospect of change) and refused to adjourn. Once that refusal stood, the court had to end the appeal rather than decide it on the merits.

(5) Strike out under FPR r 30.10 is the correct mechanism

The Court of Appeal rejected strike out as “abuse of process” under FPR r 4.4(1)(b), considering it inapt on these facts. Instead, it held:

  • FPR r 30.10(1)(a) permits the appeal court to strike out an appeal notice.
  • FPR r 30.10(2) requires a “compelling reason.”
  • The absence of any person able to pursue the appeal (no legal personality) is a compelling reason.

The remedy was thus procedural finality: strike out the appeal and restore the district judge’s order.

5.3 Impact and significance

(a) A clear practice rule for family appeals: representation is indispensable

The decision establishes a concrete procedural principle for financial remedy appeals: if an appellant dies intestate and no personal representative exists, the appeal cannot proceed on the merits. The court should consider adjournment to enable representation; if that is not viable, the appeal should be terminated—here, by striking out under FPR r 30.10.

(b) Highlights a procedural lacuna in the FPR

By emphasising that CPR r 19.12 has no FPR equivalent, the judgment underscores that family proceedings lack a ready-made representation-order pathway when estates are unrepresented. The court did note (without deciding) the theoretical possibility of using FPR r 9.26B (adding/removing parties) in an estate-representation role, but also noted the absence of authority and, crucially, the absence of any willing person in this case.

(c) Narrows the practical scope for “merits-first” problem-solving by judges

The case is also a cautionary note against well-intentioned pragmatism. HHJ Rogers’ “proportionate route through the procedural maze” was held unlawful because it treated a non-existent party as able to litigate. Future courts will be less able to “grasp the nettle” by deciding the merits where legal personality is missing.

(d) Leaves open (and flags) the “Unger/Barder conundrum” for a properly constituted case

The Court of Appeal deliberately left unresolved whether, once an appeal is properly constituted by substitution, an appellate court can substitute a different financial remedy order after a party’s death outside the strict Barder context. That question remains live, with substantial practical stakes given the interaction with the Inheritance (Provision for Family and Dependants) Act 1975 and the limitation of former-spouse claims under s.14 where divorce preceded death by more than 12 months.

6. Complex Concepts Simplified

6.1 “Letters of administration” and why they mattered

When someone dies intestate (without a will), the estate is administered by an “administrator” appointed by the court via a grant of letters of administration. Until that grant is issued, nobody has authority to sue or be sued (or appeal) in the name of the estate. That is why the appeal could not lawfully be prosecuted in H’s absence.

6.2 “The estate has no legal personality”

An “estate” is a collection of assets and liabilities; it is not a person. The court needs an actual party (a personal representative) to be bound by orders, give instructions, and bear costs consequences. Without that, the litigation cannot properly continue.

6.3 Why “proceeding in absence” rules did not help

Rules allowing a court to proceed when someone does not attend assume the party exists but is not present. Death ends the natural person’s personality, and without substitution there is no legal person to stand in their place.

6.4 Strike out vs dismissal

“Dismissal” is often used when an existing appellant fails to attend or comply. Here, the court preferred “strike out” under FPR r 30.10 because the problem was not default but the absence of any legally recognised appellant, which is a compelling reason to strike out the appeal notice.

6.5 The “Barder event” (in brief)

A “Barder event” is an exceptional supervening event occurring shortly after a financial remedy order which invalidates the basis on which it was made, justifying permission to appeal out of time and (in some later cases) redetermination. The Supreme Court in Unger treats this as a limited exception to the general rule that financial remedy jurisdiction ends on death.

7. Conclusion

[2026] EWCA Civ 582 lays down a practical and important procedural rule for financial remedy appeals: an appeal cannot be heard on its merits where the appellant has died intestate and no personal representative exists; the appeal is not properly constituted. If an adjournment to obtain representation is not appropriate, the proper course is to strike out the appeal notice under FPR r 30.10 for compelling reason.

The court restored the district judge’s order and declined to decide wider questions about the appellate court’s powers to substitute a new order post-death, leaving those issues for a future case where an estate is properly represented and full adversarial argument is available.