Court of Appeal (Civil Division) — Summary of Judgment
Factual and Procedural Background
The Appellant and the Deceased married in 1999 and had two daughters. They separated between 2006 and 2008; decree absolute was granted in 2010. The Deceased subsequently married the Respondent in 2012 and they had one daughter.
In September 2021 the Deceased filed an application for financial relief in the earlier divorce proceedings. The primary assets in dispute were three properties referred to in the judgment as three separate properties (the former matrimonial home, a property purchased before the first marriage, and a property purchased after the marriage ended). The district court (the lower court) conducted a final hearing in November 2023 and, in December 2023, made an order providing (in summary) for sale of one property with net proceeds to the Appellant, transfer of the former matrimonial home to the Deceased (with indemnity to the Appellant for mortgage liability), retention of another property by the Deceased, and no order for costs.
The Deceased filed a notice of appeal in December 2023. Permission to appeal was granted and the appeal was listed. The Deceased died intestate in July 2024. No letters of administration had been granted at the time the appeal was heard before the Circuit Judge. The Circuit Judge (sitting in retirement) heard the appeal in March 2025, reserved judgment and, in June 2025, allowed the appeal, set aside the district judge's order and remitted the matter (the judge declined to substitute a fresh order). The Appellant sought and obtained permission to appeal the Circuit Judge's decision to this Court.
Legal Issues Presented
- What powers does an appellate court have where an appellant has died after permission to appeal has been granted, particularly where the deceased died intestate and no one is willing to apply for letters of administration?
- Whether an appeal in family financial remedy proceedings should fail for want of an appellant where no personal representative has been appointed to the deceased's estate.
- Whether, in those circumstances, the appeal court should strike out the appeal (including under FPR rule 30.10 or rule 4.4(1)).
Arguments of the Parties
Appellant's Arguments
- Attorney Brooks and Attorney Fikry submitted that the Circuit Judge had power to determine the appeal on the merits and, if appropriate, to substitute a different order notwithstanding the Deceased's death and absence of a personal representative.
- They argued the Circuit Judge was wrong to refuse substitution and that the decision left the Appellant without effective relief.
Respondent's Arguments
- Attorney Pote and Attorney Cholerton conceded that an appellate court has power to substitute an order despite the death of a party but submitted that on the facts the Circuit Judge was right to decline substitution because the district judge had not resolved the issues of beneficial ownership.
Advocate to the Court's Submissions
- Attorney Tyzack (assisted by Attorney Cullis) advanced submissions on the procedural questions identified by Cobb LJ, including whether the appeal could continue without a personal representative and whether the court had power to proceed or should strike out the appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Stack v Dowden [2007] UKHL 17 |
Principle that legal ownership may equate to beneficial ownership absent contrary evidence. |
Referenced as the starting point relied on by the district judge in treating a property as part of the matrimonial pot. |
| Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22 |
Supreme Court's ruling that financial remedy claims under the 1973/1984 Acts generally create personal rights which end on death, subject to a limited Barder-type exception. |
Held to be central authority; used to delimit the circumstances in which an appeal may proceed after death and to justify leaving wider reform to Parliament. |
| Barder v Caluori [1988] AC 20 |
Principles allowing leave to appeal out of time where supervening events invalidate a fundamental assumption on which an order was based; court may set aside or vary orders in such cases. |
Considered as the historical authority for a limited exception permitting post-death appellate redetermination in certain circumstances; distinguished from the general rule in Unger. |
| Sugden v Sugden [1957] P 120 |
Earlier authority supporting the orthodox view that matrimonial claims do not survive death. |
Discussed as part of the historic line of authorities considered in Unger and Barder analysis. |
| White v White [2001] 1 AC 596 |
Descriptive authority for modern approach to matrimonial financial claims as rights to be considered on their merits. |
Referred to in discussion of whether financial remedy claims amount to causes of action that might pass on death. |
| Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618 |
Contextual authority on the transformative judicial approach to financial remedy claims. |
Referenced in argument about whether such claims are causes of action capable of surviving death. |
| Hasan v Ul-Hasan (Deceased) & Anor (Rev2) [2021] EWHC 1791 (Fam) |
First-instance decision underlying Unger; discussed in the appeal history. |
Cited as the originating High Court decision from which the Unger appeal arose. |
| Purse v Purse [1981] Fam 143 |
Authority that an appellate jurisdiction can in some cases survive death and leave to appeal may be exercisable. |
Relied on in Barder and discussed to show that appellate rights need not automatically lapse on death in all contexts. |
| Maconochie v Maconochie [1916] P 326 |
Earlier passage cited historically regarding abatement; examined and rejected as a general principle. |
Quoted in Barder as an authority whose sweeping statement could not be supported. |
| Smith v Smith [1992] Fam 69 |
Example of a case applying Barder principles to allow redetermination after supervening events. |
Noted as one of the subsequent authorities where courts have redetermined orders after leave under Barder-type principles. |
| Reid v Reid [2004] 1 FLR 736 |
Further authority applying Barder principles. |
Referenced as part of the line of cases where appeals proceeded after supervening events. |
| WA v Estate of HA [2015] EWHC 2233; [2016] 1 FLR 1360 |
Example of post-death redetermination consistent with Barder line. |
Referred to as part of the jurisprudence where appeals proceeded to reconsider orders following intervening events. |
| Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 1324 |
Interpretation that certain statutory powers (s.27(6)) require a subsisting marriage and thus cannot be exercised after death. |
Used in Unger and in this judgment to illustrate statutory construction supporting the orthodox position. |
| Re Amirteymour [1979] 1 WLR 63 |
Authority that an action against a deceased's estate is an action in personam requiring an existing legal person against whom steps can be taken. |
Applied to support the proposition that, in the absence of a personal representative, proceedings cannot be continued. |
| Piggott v Aulton (deceased) [2003] EWCA Civ 23 |
Held that claims can be commenced against an estate without a personal representative but cannot be continued without one. |
Relied on to show that continuation requires appointment of a representative; the estate is not a party with legal personality absent such appointment. |
| Walkley v Precision Forgings Ltd [1979] 1 WLR 606 |
Principle concerning limitation and abuse of process where second claims are issued after primary limitation period. |
Discussed in the context of whether restarting proceedings after appointment of a representative could be an abuse; cited from Piggott analysis. |
| Bourlakova & Ors v Bourlakova & Ors [2024] EWHC 1937 (Ch) |
Discussion of CPR rule 19.12 origins and its applicability. |
Used as background on the origins and scope of CPR rule 19.12. |
| Millburn-Snell & Ors v Evans [2011] EWCA Civ 577 |
Authority on the limited and particular application of CPR rule 19.12 to proceedings already issued. |
Cited to show CPR 19.12's limited scope and that it applies to existing civil claims; contrasted with family procedure. |
| Berti v Steele Raymond [2001] EWCA Civ 2079 |
Observation that CPR 19.12 may be confined to relatively small or straightforward claims. |
Referenced to illustrate situations where courts have permitted prosecution in absence of a personal representative. |
| Leave.EU Group Ltd and another v Information Commissioner [2022] EWCA Civ 109; [2022] 1 WLR 1909 |
The Court of Appeal's inherent jurisdiction to dismiss an appeal where an appellant fails to appear and to hear an appeal in that party's absence. |
Considered and distinguished: applicable to absent existing parties but not to a situation where there is no legal personality for the appellant because no representative has been appointed. |
Court's Reasoning and Analysis
The Court analysed two intertwined lines of authorities: (a) the Barder line permitting appellate redetermination in limited circumstances where supervening events invalidate a fundamental assumption on which an order was based; and (b) the Unger decision which reaffirmed the orthodox rule that financial remedy claims under the Matrimonial Causes Act 1973 (and related provisions) create personal rights and obligations that, as a matter of statutory construction and context, normally end on the death of a party, subject only to limited Barder-type exceptions.
The Court emphasised procedural prerequisites: following death, procedural steps are required to substitute a representative for the deceased so that there is a legal personality able to prosecute or defend the proceedings. Authorities (Re Amirteymour; Piggott v Aulton) establish that an estate without a personal representative is not a party with whom litigation can sensibly proceed. The Civil Procedure Rules contain rule 19.12 to address continuation in some civil claims, but that rule does not apply to family proceedings; the Family Procedure Rules (FPR) govern family cases and contain no equivalent to CPR rule 19.12. The Court considered potential family-rule devices (FPR rule 9.26B to add parties, FPR rule 18.12 to proceed in absence), but found none adequate here where no one was willing or able to act as personal representative.
The Circuit Judge's course—hearing and determining the appeal on its merits despite the absence of any appointed personal representative—was critically examined. The Court concluded that an appeal cannot properly proceed without an appellant with legal personality. The Court considered alternatives available to the Circuit Judge (further adjournment, dismissal, strike out under rule 4.4(1), or exercise of FPR rule 30.10 powers) and concluded that striking out under FPR rule 30.10(1) was the appropriate mechanism because there was a compelling reason: no legal personality existed to continue the appeal.
The Court therefore found the Circuit Judge was wrong in law to proceed to determine and allow the appeal in the absence of any personal representative for the Deceased. Having reached that conclusion, the Court allowed the Appellant's challenge to the Circuit Judge's procedural decision and restored the district judge's order.
Holding and Implications
HOLDING: The Court allowed the appeal on the procedural ground that the Circuit Judge erred in proceeding to hear and allow the appeal in the absence of any personal representative for the Deceased. The Circuit Judge's order allowing the appeal was set aside and the district judge's order was restored.
Implications:
- The Court affirmed that family financial remedy appeals cannot properly proceed where the appellant has died and there is no person with legal personality (no appointed personal representative) to prosecute the appeal.
- The Court held that CPR rule 19.12 (and the limited civil law mechanisms to proceed in the absence of a representative) do not apply in family proceedings; family procedure must be governed by the FPR. The absence of an FPR equivalent to CPR 19.12 means the practical consequence is that, where no representative is appointed, the appeal should be struck out under FPR rule 30.10(1) where there is a compelling reason.
- The Court declined to resolve the broader question whether appellate courts generally have power to substitute different orders on appeal where an appellant dies (the Barder/Unger tension), leaving that issue for a case with fuller argument and participation by a personal representative.
- No novel substantive precedent on redetermination after death was established; the direct practical effect is restoration of the district judge's order and a recommendation that the parties seek alternative routes to resolution and consider administration of the Deceased's estate.
Judges: Judge Baker delivered the judgment with which Judge Yip and Judge Lewison agreed.