SITTING AT THE
ROYAL COURTS OF JUSTICE
Strand, London, WC2A 2LL |
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B e f o r e :
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M |
Applicant |
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B |
Respondent |
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Mr T Dance (instructed by Payne Hicks Beach) for the Respondent/cross-applicant
Hearing date: 5 June 2025
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Crown Copyright ©
SIR JONATHAN COHEN :
Introduction
The arguments before me
The Law
[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.
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.
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).
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.
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.
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]
… 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.
Can this hearing be used an abbreviated hearing?
[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.
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