(Instructed by Nikki Ruparelia Imperia Law)
Summary
What are the powers of an appellate court in circumstances where the appellant has died intestate, no one is willing to apply for letters of administration, but the appellant, when alive, was granted permission to appeal against a financial remedies order?
In Kanabar v Kanabar [2026] EWCA Civ 582, the Court of Appeal provided a clear answer. The appeal should be struck out under FPR rule 30.10, with the necessary compelling reason being the lack of legal personality able to pursue the appeal. Due to the lack of letters of administration, the appellant’s estate had no representative. There was, therefore, no effective appellant.
The lack of a legal personality provided a relatively straightforward answer to the question. However, if there had been letters of administration, and, hence, a representative for the appellant’s estate, a more vexed issue would have arisen as to whether an appellate court can, after allowing an appeal, substitute a different order where one of the parties has died, or whether such a redetermination is limited to Barder (change of circumstances) cases. Baker LJ’s judgment, whilst not supplying an answer to this question, provides a rich discussion around this thorny issue.
Andrew Pote of 42BR, represented the second respondent. Andrew led Nigel Cholerton of No. 18 Chambers and was instructed by Nikki Ruparelia of Imperia Law.
Background
The husband (H) and his first wife (A) married in 1999. They subsequently separated. H thereafter married his second wife (B). H then filed an application for financial relief in respect of his first marriage. A financial order was made by DJ Birk.
H applied for permission to appeal DJ Birk’s order. Permission was granted. However, after permission to appeal was granted, H, sadly, died.
The appeal was nonetheless heard in spite of H’s death. HHJ Rogers allowed H’s appeal and set aside the first-instance financial order. He decided to make no substituted order due to unresolved computational issues. He observed, but for H’s death, the next step would have been to remit the matter for rehearing. However, he recognised that the consequences of the death, may result in A’s claim being no longer capable of pursuit.
A filed a notice of appeal against HHJ Roger’s order. Permission was granted by Cobb LJ (as he then was). B was joined as a respondent to the appeal. Although B had applied for letters of administration, they had not yet been granted.
A was given permission to appeal on four grounds:
Ground 1: The court erred in not striking out the appeal in circumstances where H had died and none of those who would benefit from the success of the appeal were willing to administer his estate. The court therefore found against a vulnerable respondent in favour of a deceased appellant in the face of non-engagement from those who sought to benefit from the appeal.
Ground 2: The court was wrong to allow the appeal on the basis of assertions of beneficial interest that were improperly pleaded and would inevitably have failed.
Ground 3: The court was wrong to find that the district judge misapplied the law in respect of non-matrimonial property in circumstances where she rightly considered that she had to distribute that property to meet needs.
Ground 4: In the alternative, having allowed the appeal, the court was wrong not to substitute a different order, thereby leaving the appellant with almost nothing from the marriage, and with no clear remedy under 1975 Act. The court should have made what provision for W it could in the circumstances.
The Court Of Appeal’s Decision
Ultimately, the appeal succeeded on Ground 1. Grounds 2 and 3 were not addressed due to the significant prospect of further hearings. Ground 4 received significant discussion, but given the appeal having succeeded on Ground 1, an answer was left to a decision where the issue falls for definitive determination.
Ground 1
The Court of Appeal allowed A’s appeal on the basis that an appellant was not in existence due to the lack of letters of administration. Therefore, Baker LJ considered that the right course of action for the appeal judge would have been to strike out the appeal under FPR 30.10 on the basis that there being no legal personality able to pursue the appeal amounted to “a compelling reason” under FPR 30(10)(2).
The court had considered various potential procedural workarounds but rejected them all:
CPR rule 19.12 (“Death”) provides for the possibility that where a person who had an interest in a claim has died, and there is no personal representative, the claim can proceed in the absence of a personal representative of the deceased. However, this route was rejected on two grounds: the rule is limited to “relatively straightforward” claims. This was not one of them. More fundamentally, CPR rule 19.12 does not apply to family proceedings.
FPR rule 9.26B provides that the court can add or remove parties. It was considered whether the court may have the power to appoint a person to represent a deceased’s estate. However, whilst there is no authority for using the power in this way, this was not an option because no party was willing to take on the responsibility of representing H’s estate.
Section 31F(7) of the Matrimonial and Family Proceedings Act 1984 and FPR rule 18.12 both provide the court with the power to proceed in the absence of a party. However, these provisions were of no assistance because H was not merely absent, he was non-existent.
Therefore, as above, Baker LJ considered that the correct approach would have been for HHJ Rogers to strike out the appeal under FPR 30.10 on the basis that there was no legal personality able to pursue the appeal.
Ground 4 - A Difficult Question
Due to the lack of an appellant, the court did not need to answer a difficult question posed by Ground 4: if there had been a representative for the appellant’s estate and the appeal had succeeded, would the appellate court have had the power to substitute a different order?
This is a thorny issue which has never been expressly addressed. The Supreme Court in Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents) [2023] UKSC 22 provides that a financial claim cannot be pursued after the death of one of the parties and where no final order has been made because the relevant statutory provisions create personal rights and obligations which can only be adjudicated between living parties.
However, following Barder v Calouori [1988] AC 20 the court can set aside a financial remedy order if one party’s unexpected death invalidates the basis of the original order. Moreover, on a Barder appeal or set aside application, the court can also (perhaps surprisingly, given Unger) substitute a different order notwithstanding the death of one of the parties.
It therefore remains to be seen whether an appellate court can substitute a different order where one of the parties has died in a non-Barder case. The court left this question to a decision where it falls for definitive determination and where the court has the benefit of full arguments on both sides. However, it is clear that this question will need to be addressed, and as Baker LJ suggested in his judgment, the forthcoming government consultation on matrimonial financial and cohabitation law may provide such an opportunity.
Kanabar v Kanabar [2026] EWCA Civ 582 judgment
(The above Case note was provided by Will Foulkes).
