CA-2024-001698 - [2025] EWCA Civ 1136

This is the second occasion on which this court has considered an appeal against an order made by Cohen J, sitting in the Family Division, on 8 November 2019 in proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’).

By the order under appeal, Cohen J:

The wife’s first appeal from that order came before this court in January 2021 (King, David Richards and Moylan LJJ). The judgment in that first appeal is reported as Potanina v Potanin [2021] EWCA Civ 702; [2022] Fam 23 (hereafter ‘Potanina (CA1)’). This court allowed the wife’s appeal against the order summarised at §2(i) above; this had the effect of re-instating the original grant of leave. The court made clear that the appeal at that time had “been limited in its scope”, and the court expressly regarded it as “unnecessary to consider whether the judge was wrong in refusing leave when he reconsidered the application” under Part III of the 1984 Act (see Potanina (CA1) at [88]) (i.e., the order summarised at §2(ii) above). The court expressed no views as to the merits of the substantive application under the 1984 Act (Potanina (CA1) also at [88]).

The husband successfully appealed the Court of Appeal’s order to the Supreme Court. The judgments of that court are reported at Potanina v Potanin [2024] UKSC 3; [2024] AC 1063 (Lord Lloyd-Jones, Lord Leggatt and Lady Rose; Lord Briggs and Lord Stephens dissenting) (‘Potanina (SC)’). The Supreme Court remitted the wife’s appeal against the order summarised at §2(ii) back to this court by its order of 31 January 2024 (and see also Potanina (SC) at [108]).

Until now, the appeals in this case have focused upon the procedure which Cohen J had adopted when determining the wife’s original application for leave under Part III (January 2019), the husband’s application to set aside that grant of leave (October / November 2019), and upon the court’s correct approach to an application for set-aside. This appeal focuses upon the threshold test for leave, and specifically whether Cohen J was wrong, by his order of 8 November 2019 (see §2(ii) above), to refuse the wife’s renewed application for leave to bring a claim under Part III of the 1984 Act.

For the reasons set out more fully below, I conclude that Cohen J was indeed wrong to refuse the wife’s application for leave. I propose that the appeal be allowed and his order set aside.

In advancing the case from here, I do not regard it as either necessary or proportionate to remit the wife’s application to the Family Division for re-determination: see §109 to §116 below. I am satisfied that on the evidence which was before Cohen J in November 2019, the wife had demonstrated that she had substantial ground for making the application; she should have been granted leave.

Accordingly, I would grant the wife leave to make her application under Part III of the 1984 Act, and direct that the application returns to the Family Division for further case management.