12. Can I appeal against a maintenance pending suit order?

12. Can I appeal against a maintenance pending suit order?

Yes.  If the Order is made by a master, either party can appeal to a judge.  If the order is made by a judge, then the appeal should be made to the Court of Appeal. 

Either party can appeal against an order made by master as of right by serving on every other party to the proceedings in which the order was given or made a notice of appeal within 14 days from the date of the order. 

To appeal an MPS order made by a judge, the appellant must first apply for leave (permission) to appeal from the judge who made the order or, if refused, from the Court of Appeal. If leave is granted, the appeal will be heard by the Court of Appeal.  If the Court of Appeal refuses to grant leave, the decision is final and there can be no further appeal on the decision. 

Under section 63A(2) of the District Court Ordinance (Cap. 336), the court must not grant leave to appeal unless it is satisfied that either: 

• the appeal has a reasonable prospect of success; or 
• there is some other reason in the interests of justice why the appeal should be heard. 

Leave to appeal should generally not be granted unless there is a “special reason” why the matter cannot wait until the final ancillary relief stage. A common example of a special reason that might justify an appeal is if the MPS order causes serious hardship to one of the parties. 

Even if an appeal has a reasonable prospect of success, the court may, in its discretion, refuse leave in the interests of proportionality and procedural economy. 

Appeals against maintenance pending suit (“MPS”) orders are generally difficult and rare. Because MPS is a discretionary, interim, and temporary measure, the threshold for interference by an appellate court is very high. 

The court usually encourages parties to focus on preparing for the final resolution of the financial dispute rather than spending disproportionate time and costs challenging interim orders. 

Even if leave is granted, the Court of Appeal will not exercise the discretion afresh or substitute its own view merely because it might have reached a different “rough and ready” figure. 

The Court of Appeal will intervene only if it is firmly of the view that the Family Court has: 

• made an error of law or principle; 
• taken into account irrelevant matters; 
• failed to take into account relevant matters; or 

• been plainly wrong, exceeding the generous ambit within which judicial disagreement is reasonably possible.