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England and Wales Family Court Decisions (High Court Judges)


You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> M v B [2025] EWFC 182 (25 June 2025)
URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2025/182.html
Cite as: [2025] EWFC 182

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Neutral Citation Number: [2025] EWFC 182
Case No: BV17D35062

IN THE FAMILY COURT
SITTING AT THE
ROYAL COURTS OF JUSTICE

Royal Courts of Justice
Strand, London, WC2A 2LL
25/06/2025

B e f o r e :

SIR JONATHAN COHEN
____________________

Between:
M
Applicant
- and -

B
Respondent

____________________

Mr R Todd KC (instructed by Elite Law) for the Applicant/cross-respondent
Mr T Dance (instructed by Payne Hicks Beach) for the Respondent/cross-applicant

Hearing date: 5 June 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 25 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    SIR JONATHAN COHEN

    SIR JONATHAN COHEN :

    Introduction

  1. The parties, whom I shall call the husband (H) and the wife (W) were married in 2002. In 2017 proceedings were instituted for divorce and financial remedy orders.
  2. On 13 September 2018 the parties entered into a consent order under which H was to pay lump sum orders totalling some £5.5m to W in three annual instalments. In default, interest was to run and until payment there was to be security and spousal periodical payments.
  3. In 2020 H issued an application to set aside the order. The bundle presently before me does not contain the application, but I am told that it was made under the so-called Thwaite jurisdiction on the basis that the order was still executory and that H had suffered a material adverse change of circumstances. This flows from the case of Thwaite v Thwaite [1982] Fam 1, [1981] 2 FLR 280. The matter was due to be heard by me in June 2021 but before the hearing commenced the parties reached an agreement whereby the sum payable by H to W was reduced by approaching £2m.
  4. On 6 November 2024 H applied again to vary or discharge the orders and to remit arrears on the basis that the 2021 order remained executory and that by reason of a further adverse change of circumstances he was unable to pay the sums that were due by the agreed date of February 2023. He had paid a significant part of the sum due but there remained a substantial outstanding balance.
  5. In return, W issued an application to strike out H's application pursuant to FPR 4.4 (1) (a) or (b) Family Procedure Rules 2010.
  6. On 25 February 2025 His Honour Judge Hess allocated the Thwaite application and the strike out application to me, setting out that at this hearing it is intended that I should determine the strike out application and, if applicable, give further directions for the progression of the Thwaite application.
  7. I heard argument on 5 June 2025 from Mr Dance on behalf of W and Mr Todd KC on behalf of H. I gave my decision on that day and the parties were then able with judicial assistance to agree directions. This judgment sets out why I did not strike out the Thwaite application.
  8. It is apparent from the short introduction that the circumstances of this case are highly unusual. The parties entered into an agreement nearly 7 years ago. The 2021 consent order which reduced the sum agreed in 2018 was made against the background of the collapse of H's business. He says now that the failure of its new owners to progress to an IPO so as to permit him to realise the value of his shareholding provides grounds for him to argue that his circumstances have suffered a significant change since 2021 so as to make it inequitable for the court not to vary the order.
  9. W disputes that new events have taken place since 2021 and that H was aware at the time that an IPO might not take place.
  10. No suggestion is made that W's actions have led to the order not being implemented.
  11. W points also to the fact that H's application was made some 20 months after the payment under the 2021 became due. The order only remains executory because of H's breach.
  12. These are points of substance but they are not determinative in themselves of an application to strike out.
  13. The arguments before me

  14. W expressly parked her argument over the continued controversy in family law circles as to whether Thwaite does in fact present a freestanding jurisdiction to set aside and vary an executory order. Mr Dance on her behalf accepted that a strike out application was not the time to seek a judgment determining that controversy. He says that the merits of H's applications are so poor that the court should be able to see that it is without any substance.
  15. In particular, he stresses that it cannot operate to aid a judgment debtor who is in wilful default of a court's order in circumstances where there is no wrongdoing alleged against the party seeking to enforce the order.
  16. Mr Todd KC argues that the court has no jurisdiction to summarily strike out H's application.
  17. The Law

  18. It is not necessary in this judgment to enter into the debate over the existence of a Thwaite jurisdiction and whether it establishes that a lower threshold than a Barder event suffices to give the court jurisdiction to vary an order which is executory. Neither is it necessary at this stage for the court to determine whether or not an absence of fault on the part of the party seeking to enforce is fatal to an application to vary made by the party in default.
  19. I need to go no further back than the decision of the Court of Appeal in Roocroft v Ball [2016] EWCA Civ 1009, [2017] 2 FLR 810.
  20. The background to that case was that the appellant applied to set aside a consent order on the basis that a litigant who had died intestate had been guilty of material non-disclosure. The estate tried to strike out the application. The judge refused to strike out the application but instead used his case management powers under the FPR and dismissed the application which he regarded as being without merit and doomed to failure. The Court of Appeal allowed the appeal and remitted the matter for a new hearing.
  21. Before the court, the arguments as to whether or not the principles enunciated in Vince v Wyatt [2015] UKSC 14, 2015 1 FLR 972 applied equally to an application to set aside a consent order in financial remedy proceedings as to an application for the making of a financial remedy order. In Vince v Wyatt the Supreme Court had held that the absence of a summary judgment procedure under the FPR 2010 prohibited a strike out of a financial remedy application.
  22. The reasoning of the court in Roocroft v Ball can be seen at paragraphs 43 – 45 which read as follows:
  23. [43] Mr Todd reminds the court that Wyatt v Vince was concerned with a strike out application in the context of a full ancillary relief claim. The present application is not therefore, he submits, subject to the same imperatives as are imposed by the application of s 25 of the Matrimonial Causes Act 1973 (MCA 1973) (matters to which the court is to have regard in deciding how to exercise its powers) as was the wife's application in Wyatt v Vince. Whilst that is undoubtedly the case, in his speech at para [27] Lord Wilson said:

    '… Although the power to strike out under r 4.4(1) extends beyond applications for financial remedies, for example to petitions for divorce, no doubt it is to such applications that the rule is most relevant …'

    [44] It follows that the rule, and therefore Lord Wilson's observations, apply equally to an application to set aside a financial remedy order on the grounds of material misrepresentation/non-disclosure as to an application for financial remedy.

    [45] The following matters can therefore be drawn from Wyatt v Vince for the purposes of the present case:

    (i) The principles enunciated in Wyatt v Vince apply equally to an application to set aside a consent order in financial remedy proceedings as to applications for the making of a financial remedy order.
    (ii) The court's power to strike out an application pursuant to r 4.4(1) of the FPR 2010 is of 'limited reach' and has to be construed without reference to 'real prospects of success', it follows that an application is not an abuse of process for the purposes of the FPR 2010, r 4.4(1)(b), simply by reason of the fact that it has no real prospect of success.
    (iii) An application has 'no reasonable grounds' for the purpose of the FPR 2010, r 4.4(1)(a), if it is not legally recognisable in the sense that it is incoherent or the applicant has remarried.
    (iv) There is no summary judgment procedure under the FPR 2010. That does not however mean that the court is constrained from exercising its case management powers to direct there to be some form of abbreviated hearing following a provisional evaluation of the issues.
  24. The argument before me therefore became focused on the effect of FPR 9.9A and PD 9A 13.8 which were inserted into FPR by SI 2016/901.
  25. The timing of this introduction was almost simultaneous with the judgment in Roocroft. This is set out in the judgment of Roberts J in AB v CD [2022] EWFC 116. Paragraph 72 reads as follows:
  26. 72. The change effected by the introduction of FPR PD9A para 13.8 came into effect at the beginning of October 2016. Roocroft v Ball (above) had been heard in the Court of Appeal on 5 July 2016 prior to the implementation of the rule change. There is no reference in the judgment to any argument on this point. The legal arguments advanced on that occasion through counsel, quite properly, were focussed on existing law and procedure. Judgment was reserved and handed down by the Court of Appeal on 14 October 2016 shortly after the start of the new legal term. The new rule had then been in effect for less than two weeks. It had no retrospective effect and was not in force when the original decision was made and/or when the appeal against the trial judge's decision was heard. Accordingly, we do not have the benefit of any consideration by the Court of Appeal in relation to how the words in para 13.8 "summarily dispose" should be construed in the context of a strike-out application.

  27. It is clear that Roberts J and Francis J in Ma v Roux [2024] EWHC 1917 (fam) came to differing conclusions on this issue.
  28. The crux of the reasoning of Roberts J in AB v CD is to be found at paragraph 78 which reads as follows:
  29. 78. In the light of the foregoing and, in particular, the provisions of para 13 of FPR PD9A (procedure to be applied in applications to set aside a financial remedy), and para 13.8 in particular, I find myself unable to agree with Mr Elliott QC's submission that "the FPR does not make provision for summary judgment".  That said, I accept that the combined body of case law represented by the decisions of the Supreme Court in Vince v Wyatt, the combined appeals of Gohil and Sharland, and the Court of Appeal's decision in Roocroft v Ball accurately frames the approach in law, as opposed to procedure, which this court, like every other, must apply.  There is no legal basis upon which I can subject H's claim to set aside the 2016 consent order to a "real prospects of success" test in the context of the present strike-out application.  (Emphasis added). Beyond that, it is clear that the court is entitled, pursuant to the wide discretion mandated by para 13.8 of FPR PD 9A, and positively encouraged, through application of the overriding objective, to conduct its enquiries and reach its conclusions within the context of "some form of abbreviated hearing following a provisional evaluation of the issues" (per King LJ at paras 45 and 58 of Roocroft v Ball), a fortiori in circumstances where the same or very similar allegations of non-disclosure have already been fully considered and tested in cross-examination at a previous hearing, (per Lord Neuberger in Gohil, paras 52 to 54 and 56).

  30. Roberts J then dealt with the merits of the application in an abbreviated hearing which lasted 3 days, inclusive of the time dealing with the court's jurisdiction to strike out.
  31. Francis J, on the other hand, came to a different view in January 2024 in the case of Ma v Roux. His conclusions are to be seen at paragraph 46-48 which read as follows:
  32. 46. At the outset of this judgment, I stated that the issue before the court is as follows: This case today is concerned with whether the court has the power to strike out an application to set aside a consent order in financial remedy proceedings. Put another way, is there a power of summary determination of such an application in financial remedy proceedings? Or is the power to strike out limited to the category simply of legally unrecognisable claims?

    47. In my judgment, the appropriate test to be applied in such cases is as follows:

    1. When considering whether to strike out an application to set aside a financial remedies order made under FPR 9.9A, the court may have regard to all matters set out in FPR 4.4(1)(a) to (d) and is not constrained in the same manner that an application to strike out an application for a final financial remedies order is, pursuant to Wyatt v Vince [2015] UKSC 2015. This means when exercising its powers under 4.4(1)(a) the Court may consider whether the application has a real prospect of success.

    2. The Court retains its full range of case management powers as set out in the PD9A para. 13.8 which includes, where appropriate, the power to strike out or summarily dispose of an application to set aside a financial remedies order made under FPR 9.9A and these powers may be exercised with reference to [real] prospects of success.

    48. Applying that test to the facts of this case, I find myself here in a position that will really result in disappointment for both parties. I agree with Mr Fairbank's interpretation of the legal position. I agree that the position is now different from that which pertained when the Court of Appeal considered the position as they did in Roocroft v Ball. I have already said that I think, with the greatest respect, I might have come to alternative conclusion about that but that is irrelevant as that I am bound by a decision of the Court of Appeal. However, I am dealing here with the interpretation of new Rules and a new Practice Direction that did not exist at that time and so I find that am entitled to say that these new Rules and this new Practice Direction are different; and that, accordingly, I agree with Mr Fairbank's assertion that the judge erred in law by not distinguishing Roocroft v Ball on the basis that FPR 2010, Rule 9.9A and PD 9A came into force after Roocroft v Ball was decided and there is no reference to those provisions therein.

  33. I therefore have to consider whether the effect of FPR 9.9A as supplemented by the practice direction means that Roocroft v Ball can be distinguished. Paragraph 9.9A reads as follows:
  34. 9.9A Application to set aside a financial remedy order

    (1) In this rule –

    a) 'financial remedy order' means an order or judgment that is a financial remedy, and includes –
    i) part of such an order or judgment; or
    ii) a consent order; and
    b) 'set aside' means –
    i) in the High Court, to set aside a financial remedy order pursuant to section 17(2) of the Senior Courts Act 1981 and this rule;
    ii) in the family court, to rescind or vary a financial remedy order pursuant to section 31F(6) of the 1984 Act.

    (2) A party may apply under this rule to set aside a financial remedy order where no error of the court is alleged.

    (3) An application under this rule must be made within the proceedings in which the financial remedy order was made.

    (4) An application under this rule must be made in accordance with the Part 18 procedure, subject to the modifications contained in this rule.

    (5) Where the court decides to set aside a financial remedy order, it shall give directions for the rehearing of the financial remedy proceedings or make such other orders as may be appropriate to dispose of the application.

  35. The rule does not in itself cast any light on whether or not the court has a power to summarily dispose of an application. That is only to be found at PD 13.8 which says as follows:
  36. In applications under rule 9.9A, the starting point is that the order which one party is seeking to have set aside was properly made. A mere allegation that it was obtained by, eg, non-disclosure, is not sufficient for the court to set aside the order. Only once the ground for setting aside the order has been established (or admitted) can the court set aside the order and rehear the original application for a financial remedy. The court has a full range of case management powers and considerable discretion as to how to determine an application to set aside a financial remedy order, including where appropriate the power to strike out or summarily dispose of an application to set aside. If and when a ground for setting aside has been established, the court may decide to set aside the whole or part of the order there and then, or may delay doing so, especially if there are third party claims to the parties' assets. Ordinarily, once the court has decided to set aside a financial remedy order, the court would give directions for a full rehearing to re-determine the original application. However, if the court is satisfied that it has sufficient information to do so, it may proceed to re-determine the original application at the same time as setting aside the financial remedy order. [emphasis added]

  37. Mr Todd KC argues that a power to strike out cannot be given by a practice direction which has never been scrutinised by the legislature in a way that the rules would have been. He says that FPR 9.9A does not in fact give the court any powers to strike out. A practice direction cannot create a power not provided elsewhere in the rules. In support he relies on LU v Liverpool City Council [2005] EWCA Civ 475, a case concerning the Costs Practice Direction.
  38. At paragraph 48, Brooke LJ, giving the lead judgment, said this
  39. … Practice Directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

  40. Francis J was not referred, so far as one can tell, to the decision of Roberts J nor to the particular point set out above.
  41. I am not comfortable with the notion that a practice direction can have the effect of overtaking the decision of the Supreme Court as interpreted by the Court of Appeal.
  42. I do not agree with Francis J that there is scope for the court to analyse on a summary basis the prospect of success of an application in the absence of a hearing, however abbreviated it might be.
  43. Further, I would do the parties no favours if I was to exercise my discretion and strike out the application on a summary basis, bringing with it the probability of an appeal and yet further delay and uncertainty. Far better for them that I deal with the matter by way of an appropriate abbreviated hearing.
  44. Can this hearing be used an abbreviated hearing?

  45. I have considered whether I can use this hearing as an accelerated and abbreviated hearing. It is a tempting course and would save the parties both time and money. However, I must take cognisance of paragraph 48 of Roocroft where King LJ stated as follows:
  46. [48] In my opinion the appellant is right to characterise the decision as 'summary judgment', and accordingly a course for which the judge had no jurisdiction under the rules. In my judgment, the outcome cannot be salvaged by applying the nomenclature of 'abbreviated hearing' to what took place at the directions hearing. If a cross-check is needed it can be gained from a consideration of what is in fact the proper approach to be adopted by the courts when faced with an application to set aside on the grounds of material non-disclosure. If an abbreviated hearing is to be appropriate and fair not only must proper notice be given to the parties allowing them the opportunity to make submissions as to the issues to be considered and the form such a hearing should take, but it must be shown to have satisfied the requirements of Sharland v Sharland [2015] UKSC 60, [2015] 3 WLR 1070, [2015] 2 FLR 1367 (Sharland) and Gohil v Gohil [2015] UKSC 61, [2015] 2 FLR 1289 (Gohil) discussed below.

  47. There seem to me to be a number of problems which make it impractical and/or unfair for me to use this hearing in that way:
  48. i) The order of HHJ Hess set out earlier set up this hearing to deal with the strike out and directions. It might be thought unfair to rush a party into such a hearing;

    ii) W has not yet filed any evidence;

    iii) The bundle does not include the parties' statements prepared in 2020 or 2021 in anticipation of the 2021 hearing and which will provide important evidence as to the circumstances of H at the time;

    iv) The limitations of time. This case is listed for one day and the whole of the morning was occupied with the debate about jurisdiction. There is simply not time to conduct such a hearing.

    Directions

  49. It is agreed that W will file a response to H's statements with a very short reply by H if so advised. The 2020 missing documents are to be provided. There is to be no oral evidence unless otherwise ordered. The case is to be listed for a 2 day hearing before me, with an allowance for judicial reading at the outset and with a written judgment to follow.

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