Neutral Citation no. [2001] NIFam 15
Ref:     
GILF3454

 
Judgment: approved by the Court for handing down
Delivered:
21.06.2001
(subject to editorial corrections)

 

 
 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
FAMILY DIVISION
 
 ________ 
 
BETWEEN:
 
BRIGID ANNE MAGINN
 
Petitioner; 
 
-and-
 
GERARD MAGINN
 
Respondent.
 
 ________ 
 
GILLEN J
 
            This matter comes before the court on foot of an Order made on 6 March 2001 by Master McReynolds that “this application shall be transferred to the Family Judge pursuant to Rule 2.66 of the Family Proceedings Rules (Northern Ireland) 1996 for directions and review as to readiness at the earliest opportunity”.  It was agreed by the parties that the phrase “as for readiness” meant “as to the appropriate procedure to be adopted in this matter and the appropriate forum in which it is to be heard.”  
Background
            On this preliminary matter, there really appears to be no issue between the parties and the approach of counsel has been broadly similar.  The issues on this hearing had been progressively narrowed so that it was only necessary to hear in extenso from Mr Long QC who appeared on behalf of the respondent with Miss Gregan.  Miss Creighton appeared on behalf of the petitioner.  The relevant facts in this case are very few, but the legal issue complex.  I had the advantage of a careful skeleton argument prepared by Miss Gregan and Mr Long QC which helpfully sets out the factual background to the issue which now exercises the court:
“The petitioner issued an application for ancillary relief by way of summons dated 30 April 1998.  The matrimonial assets and issues in the case were agreed as follows:
 
(1)        The former matrimonial home situated at 5 Stockman’s Lane, Belfast valued at £79,950 on 22 July 1999 with no mortgage.
 
(2)        The respondent’s pension with Gardner Merchant Ltd with a transfer value of £15,383.
 
(3)        The petitioner’s savings of approximately £5,000.
 
(4)        The petitioner’s income of approximately £5,000 per annum.
 
(5)        The respondent’s income of approximately £12,000 per annum.
 
(6)        Financial Provision Order dated 25 November 1994 in favour of the petitioner for nominal maintenance.
 
On 27 January 2000 the parties signed a matrimonial agreement.  That was made an order of the court by Master McReynolds on the same date.
 
Summary of settlement
 
(a)        The matrimonial home at 5 Stockman’s Lane, Belfast to be transferred into the sole of the petitioner.
 
(b)       In consideration of this transfer, the respondent to receive a sum of £19,000 representing 25% of the net equity.
 
(c)        The respondent to retain his pension and the nominal maintenance order to be discharged.
 
(d)       The terms of the agreement were in full and final settlement of all claims, which either party may have had against the other.
 
The settlement had been on the basis that the petitioner wanted to retain the matrimonial home.”
 
            The succeeding events may well be a source of disagreement at the hearing.  The case made on behalf of the respondent is that he became aware that the former matrimonial home had been placed on the market for sale prior to it being transferred into the sole name of the petitioner at an asking price of £89,950.  The case to be mounted by the respondent is that the petitioner had obtained two valuations.  One for her own use and one for the court.  Accordingly the respondent’s solicitor, by correspondence dated 29 March 2000 advised the petitioner’s solicitor that the respondent intended to make an application to re-open the matter in light of the fact that the house had been placed on the open market for sale and that the petitioner had allegedly misrepresented the position.  The respondent’s position was confirmed by way of further letter to the petitioner’s solicitor dated 12 April 2000.  The respondent then mounted an application to the Legal Aid Department for legal aid to be granted to re-open the agreement.  On 4 August 2000, the petitioner issued a summons before the Master requesting:
(a)        An order requiring the respondent to sign and execute all such documents as may be necessary so as to comply with and effect the terms of the order of the Master dated 27 January 2000.
(b)       Further and in the alternative that the Master do order that the said documents in any conveyance be executed by such person as the court might nominate for that purpose in place of and instead of the respondent.
(c)        Such other order as this honourable court deems meet.
(d)       The costs of the application.
            The respondent issued a summons dated 25 October 2000 which was amended with the leave of the Master on 6 March 2001 to ask for:
(1)        An order staying the implementation and/or enforcement of the terms of the agreement entered into and signed by the parties on 27 January 2000 and the order of the Master made by consent on the same date pending the hearing of the application.
(2)        An order setting aside the agreement entered into and signed by the parties on 27 January 2000 and the Order of the Master made by consent on the same date on the grounds that the petitioner misled the respondent and this honourable court, that she failed to disclose material information, that she fraudulently misrepresented her financial position and that there was a mutual mistake between the parties.
(3)        An order re-opening the application for ancillary relief made by the petitioner by way of summons dated 30 April 1998.
(4)        Such other order and/or relief as this honourable court deems meet.
(5)        Costs.
            Both the petitioner, by way of an affidavit swore on 31 July 2000 and the respondent by way of an affidavit sworn 24 October 2000 have set out their cases in extenso.
            When the matter came before the Master, she then referred it to this court in the terms which I have set out at the commencement of this judgment.
The statutory background
(1)        The Rules of the Supreme Court (Northern Ireland) 1980 Order 58 Rule 1 provides:
“(1)-(1)            …. except as provided by Rules 2 and 3, an appeal shall lie to a judge in chambers from any judgment, order or decision of a Master ….
 
…
 
(3)        Unless the court otherwise orders, the notice must be issued within five days after the judgment, order or decision appealed against was given or made and served not less than two clear days before the day fixed for hearing the appeal.”
 
            Accordingly it would be open to the parties in this case to apply for leave to appeal out of time in the circumstances where the period of five days has now long expired.  
(2)        Under the County Court Rules (Northern Ireland) Order 25 Rule 20, there is a provision as follows:
“20-(1)            Where in any case it is shown to the satisfaction of the judge that a decree has been obtained by fraud, misrepresentation, surprise, mistake or other irregularity, … the person against whom the decree was obtained may in accordance with this rule apply for and obtain a hearing or re-hearing.”
 
However Order 25 Rule 20 does not apply to a matrimonial cause and accordingly does not apply to ancillary relief as in this instance.  In any event obviously these Rules are not relevant to the present hearing since these proceedings are not in the County Court.
Accordingly if the statutory route is to be followed, in this particular instance the only avenue open to the respondent is by way of appeal.
The question then arises as to what other avenues are open to the respondent.  A procedure which may be adopted by someone who wishes to challenge a consent order is to mount a fresh action.  In the case of an agreement, the claim for example may be for a rescission of the agreement and any conveyance entered into under the agreement (Cresswell –v- Potter 1978 1 WLR) on the same grounds.
            These avenues were not adopted in this instance.  Instead an application has been made by way of a summons before the Master to set aside the agreement in the terms I have set out. 
            It seems that the genesis of this approach is to be found in the judgment of Ormrod LJ in Robinson –v- Robinson (1982) 1 WLR 786.  In that case the wife had applied to the Court of Appeal by amended notice of motion to set aside orders relating to ancillary relief consequent on a divorce and a consent order thereafter made by a High Court judge.  Ormrod LJ dealt with the procedure to be adopted in such cases in the following terms at page 786:
“There is no doubt that both the Court of Appeal and the judge at first instance have jurisdiction in the situation with which we are faced in this case, where the application is to get aside a final order.  Lord Diplock said so in De Lasala (1980) AC 546-561:
 
‘Where a party to an action seeks to challenge, on the ground that it was obtained by fraud or mistake, a judgment or order that finally disposes of the issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment or order to a higher court or by bringing a fresh action to set it aside.’
 
There are many references in the books to separate access to set aside a judgment on the ground of fraud.  In the Family Division, as has been said many times, this power to set aside final orders is not limited to cases where fraud or mistake can be alleged.  It extends, and has always extended to cases of material non-disclosure …. A distinction has to be drawn between the restrictions imposed by the Matrimonial Causes Act 1973 on varying lump sum orders or property adjustment orders which cannot be varied and the power to set aside an order which has been obtained by fraud or mistake or by material non-disclosure.  The essence of the distinction is that the power to vary usually reflects changes of circumstances subsequent to the date of the order, whereas the power to set aside arises when there has been fraud, mistake or material non-disclosure as to the facts at the time the order was made.  From the point of view of convenience, there is a lot to be said for proceedings of this kind taking place before a judge at first instance, because there will usually be serious and often difficult issues of fact to be determined before the power to set aside can be exercised.  These can be determined more easily, as a rule, by a judge at first instance.  Moreover, he can go on to make the appropriate order which we cannot do in this court.  I think that these proceedings should normally be started before a judge at first instance, although there may be special circumstances which make it better to proceed by way appeal.”
 
            The facility of this procedure was developed in Re C (Financial Provision: Leave to appeal) (1993) 2 FLR 799, sub nom Re C (Re hearing: procedure).  This was an application to set aside an order made by a district judge on the ground that it was obtained as a consequence of material non-disclosure.  Citing the judgment of Ormrod LJ in Robinson’s case, Thorpe J (as he then was) said at page        :
“He does not there say explicitly the method by which proceedings should normally be started before a judge at first instance, but I am in no doubt at all that his meaning was that there should be started by issue of summons.  Manifestly the possibility of recommencing litigation at first instance by fresh writ was open on the decision of De Lasala, but what was submitted was that that was not appropriate in the Family Division, where proceedings are not commenced by writ but by originating summons or by simple summons in existing proceedings.  So, on the face of it, if orders made in ancillary relief by a judge of the Division may be reinvestigated by the issue of a summons, the same procedure should be available to orders made by a district judge sitting in the registry.  After all, the district judge has exactly the same statutory powers and responsibilities and it is a matter of practice whether a case is allocated to a district judge or to a judge of the Division for the purposes of a final hearing.  But the decision of Mr Justice Ward in the case of B-T .. led the applicant in this case not to issue a simple summons before the district judge who had made the last order in the case but to proceed by way of appeal, for which of course leave was required since it was years out of time.  That decision is one which was preceded by a great deal of research by the judge and it is manifestly a very erudite judgment.  But I think it is important that the facility established by the judgment of Ormrod LJ in Robinson –v- Robinson should not be eroded.
 
I am in no doubt at all that if an order made by a judge of the Division has been secured by some vitiating factor, then the aggrieved party can re-open the proceedings by the issue of a judge’s summons for which no leave is required.”
 
I pause at this stage only to observe that I find the comments of Thorpe J (as he then was) completely convincing.  Principle and pragmatism combine to persuade me that this is an appropriate means of proceeding in cases of this kind.  In addition to the authority of Robinson upon which the judge relied, I venture to suggest there is merit in two further points, both of which were helpfully raised before me by Mr Long QC in support of Thorpe J’s approach.  First, this is a procedural matter.  There is a power inherent in the court to control its own proceedings conducted by officials of the court such as Masters, as delegates of the judges.  Master McReynolds was acting as a delegate in exercising the jurisdiction which belonged to the High Court: cf Section 60(1) of the 1978 Judicature Act.  (See in Re Weir and Higgins Application (CA) 1998 NI 338 at page 352).  
Secondly, I believe there is merit in the argument that the advent of the Human Rights Act has underlined the need to ensure that a citizen is not denied or unreasonably delayed in obtaining access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953).  In Johnston –v- GoreWood & Company 2001 2 WLR page 72 at page 118D Lord Millett said:
“It is one thing to refuse to allow a party to relitigate a question which has already be decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously be adjudicated upon.  The latter (though not the former) is prima facie a denial of the citizen’s right of access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the protection of human rights and fundamental freedoms (1953).  While therefore the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.”
 
            Drawing an analogy with this case, if a consent order has been made as a result of misrepresentation, then the innocent party should be in a position to speedily relitigate and not be denied an original opportunity to ventilate all the issues.  It seems to me that it is at least arguable that to be obliged to go through the appeal process which may not be particularly appropriate to a detailed analysis of the issues or to be obliged to launch a fresh action may be to unjustifiably delay that person the access to a hearing as originally envisaged.
            Subsequent to Re C, a number of other authorities endorsed the use of that procedure.  In Benson –v- Benson(deceased) 1996 1 FLR 692 the subject of the dispute was a consent order made in a County Court in circumstances where the wife concerned had unexpectedly died.  The husband brought proceedings to vary the consent order seeking to appeal out of time and at the same time issued a writ in the Queen’s Bench Division to set aside the consent order inter alia.  All the proceeding were consolidated and transferred to the Family Division of the High Court for determination.  Bracewell J specifically adverted to the procedure laid down in Robinson –v- Robinson and Re C.  At page 697 she said:
“The case of Robinson –v- Robinson also involved material non-disclosure and the wife made what might be called a belt and braces application in that she made two applications:
 
(1)        An action in the Queen’s Bench Division to set aside; and
 
(2)        An appeal to the Court of Appeal.  …
 
The Court held that although the original order was vitiated by non-disclosure, there would have to be a further hearing by a Family Division judge since the Court of Appeal was not in a position to determine the merits.  Ormrod LJ conceded that this was inconvenient and postulated that most cases should normally be started at first instance which would by way of summons (sic).”
 
            I pause to observe that I am not sure that Ormrod LJ did precisely state that the procedure should be way of summons but I am respectfully concur with Bracewell LJ and Thorpe J in Re C in concluding that this must have been what was meant.  Bracewell J went to say at page 697E:
“It was this consideration by Ormrod LJ which prompted Thorpe J in Re C to propound that if an order made by a judge of the Division has been secured by a vitiating factor then parties could re-open the proceedings by issue of a judge’s summons for which no leave is required.  He specifically referred to fraud and to an absolute right to bring the injustice to the judge at the trial without any filter by way of application for leave ….  The route suggested by Thorpe J is undoubtedly an attempt to simplify complex procedures.”
 
            A similar approbation of the approach in Re C is to be found T –v- T (Consent order: procedure to set aside) (1996) 2 FLR 640.
            The approach adopted in Re C by Thorpe J has received academic approval in a number of leading text books including:
(a)        The Family Court Practice 2001 Part III paragraph 52.3 where the author states:
“In relation to an a consent order, consideration must be given to whether the matter should be referred to the judge who heard the matter for a rehearing rather than to appeal.  This seems to be the preferred course in relation to orders made as a result of fraud, mistake or material non-disclosure or where there has been a new event to invalidate the basis of the order (see Re C(financial provision: leave to appeal) 1993 2 FLR 799 and Benson –v- Benson (Deceased) 1996 1 FLR 692).  This route is the more appropriate where there are issues of fact to be determine or a substitute order is made.”
 
This approach has therefore the imprimatur of this distinguished publication notwithstanding the doubts cast on it by Ward LJ in Harris –v- Managhan (1997) 1 FLR 205 to which I will presently turn.
(b)       Duckworth, 5th Edition, Matrimonial Property and Finance at pages 343/344.
(c)        David Salter and Simon Bruce 3rd Edition (Matrimonial Consent Orders and Agreements) where at page 171 the author states:
“It is submitted that the procedure envisaged by Thorpe J in Re C should be followed.  A summons should be issued before the judge or the level of judge who tried the original matter or who made the consent order.  ….  We have seen how Thorpe J envisaged that a case may have to be transferred up to a different level of judge if the complexity so warrants.”
 
(d)       Rayden and Jackson on Divorce in Family Matters 17th Edition paragraph 50.86 note 1 where the author states:
“If an order made in financial relief proceedings has been secured by some vitiating factor such as fraud, the aggrieved party can re-open the proceedings by the issue of a summons for which, unlike an appeal made out of time, no leave is required; the facility of the procedure established by the judgment of Ormrod LJ in Robinson –v- Robinson …. should not be overlooked; thus where it is proposed to apply to set aside an order made by a District Judge on the ground that it was obtained as a consequence of material non-disclosure it is not necessary if an application be made for leave to appeal the order out of time: it is sufficient to issue a summons seeking the appropriate leave.  As a matter of practice, the District Judge will then transfer that sum as to a High Court judge for hearing.”
 
The procedural route however considered appropriate in Re C (ante) has been called into doubt in Harris –v- Manahan(ante).  In that case an application had been brought to set aside a consent order on the grounds that it was vitiated by bad legal advice proffered by solicitors acting on behalf of the applicant.  The consent order had been made in the County Court in England.  The matter was transferred to the High Court where it was sought to determine whether the ground of bad legal advice permitted the re-opening of a consent order. In the course of the judgment of Ward LJ, he said at page 217:
“In Re C, Thorpe J, as he then was, took a pragmatic approach to problems of this kind … the parties before Thorpe J took the appeal route when they could perhaps have applied for a rehearing by the district judge who would not appear to have been in error.  But they had to go through the hoop of seeking an extension of time does not appear to me to be a serious obstacle because it gives the court a chance to filter out the hopeless case before the expense of a full blown contest is incurred.  Whilst I am ordinarily totally sympathetic to practicality overcoming technicality, nevertheless where the rule sufficiently provide the remedy, as they do, I see no justification for importing ad hoc procedures.  Thorpe J, as he then was, has far greater experience of these matters than I do and his judgement commands respect but I venture to think that the extension he proposed goes further than is necessary.”
 
            Since then the parties have been unable to uncover any further judicial comment on this criticism of the approach of Thorpe J.  Rayden and Jackson on Divorce and Family Matters 17th Edition update at paragraph 50.86 note 1 after quoting Ward LJ, adds by way of editorial comment:
“It would appear to have been overlooked that in fact Re C was following the procedure established by the Court of Appeal in Robinson –v- Robinson.”
 
For my own part in the absence of a definitive ruling by the Court of Appeal, I consider it appropriate to follow the procedure adopted in Re C.  Harris –v- Manahan was of course dealing with the procedure operating in the County Court in England which provided a remedy by way of rehearing which is not available in this instance.  In terms I do not believe that the rules sufficiently provide an appropriate remedy in this instance which distinguishes it from Harris –v- Manahan.  Other than an appeal out of time and a fresh action, the applicants in this case can turn only to the procedure adopted in Re C.  I consider therefore that the circumstances in Harris –v- Manahan are distinguishable from that which obtains in the present case and accordingly I find the approach adopted in Re C to be a compelling one.  I therefore conclude that the procedure adopted by the applicant in this instance namely a summons to set aside the Order is appropriate.
            Two other matters merit comment by me:
(1)        I share the view of Bracewell J in Benson –v- Benson (ante) expressed at page 130A:
“By reason of the existence of the various procedures which have been judicially approved and considered in different cases a would be appellant cannot be criticised for choosing one rather than the other, although I would not wish for my part to encourage the commencement of fresh actions in the Queen’s Bench Division.  But with that caveat, I am of the opinion that a litigant must choose whichever route he considers most appropriate and until the various procedures are unified the choice is that of the litigant.”
 
            In my view therefore it is open to litigants to choose whichever avenue they consider to be procedurally appropriate in the particular context of the case in question.
(2)        Under Order 32 Rule 12 of the Rules of the Supreme Court (Northern Ireland) the Master has power to refer a matter to a judge.  The order reads:
“12-(1)                        A Master may refer to a judge any matter which he thinks should properly be decided by a judge, and the judge may either dispose of the matter or, after or without hearing the parties, refer it back to the Master, with such directions as he thinks fit.”
 
            Nothing that I say in this case is intended to fetter the discretion of the Master to act in accordance with this order.  In the circumstances set out in Re C (ante) Thorpe J said at page 801:
“Obviously in practice these cases, if they are to be re-opened become complex and difficult and usually involve an investigation not just of credit but also of integrity and, accordingly, are appropriately listed before a judge of the Division.  So in practice if the order is made by the District Judge the reinvestigation is likely to be before a judge of the Division.  But that seems to me not to be of necessity and principle but simply out of practicality and recognition of the practice that an issue that depends upon findings of credit and integrity is, ordinarily speaking, assigned to a judge of the Division.”
 
            I do not consider that the practice suggested by Thorpe J in the context of Re C will be an inflexible rule.  The Master in each case must look at the particular circumstances and the allegations made.  The Master must then exercise her discretion under Order 32 and in doing so will obviously take into account whether or not the kind of factor suggested by Thorpe J in Re C is present in any particular case.  I therefore consider that it is appropriate that the Master should consider the particular summons in this case and, without any assistance from me, make a determination as to whether or not in her opinion the case falls within Order 32, Rule 12.  The parties have indicated to me that this process has not yet been considered by the Master and I therefore remit the matter back to her for that to occur.  Whilst it may well be that in light of the comments by Thorpe J she will consider that the factual determination of this summons should be assigned to a judge, nonetheless I consider the proper procedures must be observed before this can be done.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
FAMILY DIVISION
 
 ________ 
 
BETWEEN:
 
BRIGID ANNE MAGINN
 
Petitioner; 
 
-and-
 
GERARD MAGINN
 
Respondent.
 
 ________ 

J U D G M E N T
O F
GILLEN J
 ________