The Court of Appeal has struck out grounds of appeal that sought to challenge, indirectly, a High Court decision confirming that the Circuit Court had jurisdiction to hear a wife’s divorce proceedings. It held that section 39 of the Courts of Justice Act 1936 barred the Court of Appeal from reviewing that decision.
The judgment, delivered by Ms Justice Máire Whelan on 20 December 2022, concerns two appeals brought by the husband in related proceedings about recognition of orders from Pakistan and the children’s welfare. The parties and children are anonymised in the judgment.
The wife began divorce proceedings in the Circuit Court in October 2019, seeking a decree of divorce and related orders. The husband, representing himself, challenged that court’s jurisdiction. In June 2021, Judge Groarke refused his application and held that the Circuit Court could hear the case. The husband appealed that ruling to the High Court.
In December 2021, Mr Justice Jordan dismissed the appeal and affirmed the Circuit Court’s jurisdiction. He concluded that the evidence met the statutory requirement that the applicant had been resident in the relevant jurisdiction for at least one year before the proceedings began.
The husband’s two Court of Appeal notices formally concerned separate recognition and welfare proceedings. But the court found that both also contained grounds and submissions challenging the High Court’s ruling in the Circuit Court appeal. Although the husband had stated that he was not appealing that ruling, the Court of Appeal said the grounds sought in substance to have it reviewed or reversed.
Section 39 makes a High Court decision on an appeal from the Circuit Court “final and conclusive and not appealable”. The Court of Appeal held it had no jurisdiction to entertain the indirect challenge. It ordered that all grounds in the two appeals that sought, in whole or in part, to further contest the High Court’s decision be struck out. The judgment addressed that jurisdictional issue; it did not determine the underlying divorce, recognition or welfare proceedings.
On costs relating to those specific grounds, the court stated its provisional view that no order should be made. It allowed the wife 21 days to file a written submission seeking a different costs order, with the husband entitled to reply within a further 21 days. No final costs order is stated in this judgment.