BT v BT (Rehearing: Procedure)
| Jurisdiction | England & Wales |
| Judgment Date | 1990 |
| Date | 1990 |
| Court | Family Division |
WARD, J
Procedure – application to set aside order – material non-disclosure – rehearing – right to apply to court of first instance when no error of court was alleged – meaning of "no error" – difference between practice of High Court and county courts – whether court's powers different as between final and interlocutory orders – husband applying to set aside consent order for settlement of property – whether application was application for a rehearing or for a fresh action.
The parties were married in 1975. There was one child of the family who was born in June 1979. In November 1979 the marriage broke down and the husband left. In 1983 the wife petitioned for divorce in a county court and sought both lump sum and periodical payments for herself and the child. The cause was transferred to the principal registry but was always treated as pending in the county court. A decree nisi of divorce was granted in May 1984 and was made absolute in March 1985. The application for ancillary relief was delayed by orders for discovery and eventually set down for hearing in April 1986. Negotiations at the door of the court led to a consent order under which the husband was to pay £15,000 to a trustee to be held on trust for the child, the trustee to be at liberty to purchase any real property. The object of that agreement was to avoid the lump sum being reduced by the operation of the Law Society's charge. In addition the consent order required the husband to make periodical payments for the child. The order stated that the parties' claims for financial provision should be dismissed and that neither party should be entitled to make any further application for financial provision.
Subsequently it became known to the husband that the wife had formed an attachment with another man in 1985 and had given birth to his child in March 1986 (a month before the consent order), and that they had married in February 1987.
As a result, in March 1987 the husband gave notice of his intention to apply to a registrar for an order setting aside the consent order for the payment of the lump sum of £15,000 on the ground of material non-disclosure. Before the hearing of a summons for directions the wife issued a notice of application applying for the husband's application to be dismissed or struck out as the court had no jurisdiction to make the order sought by the husband. In June 1989 a registrar ordered that the wife's application be dismissed and that the husband's application should be transferred to the High Court.
[1990] FCR 654 at 655
In the High Court it was submitted on behalf of the wife that as the order for ancillary relief finally disposed of the issues raised between the parties the only ways of challenging it were by way of appeal to a higher court or by bringing a fresh action to set it aside because the registrar had no jurisdiction to rehear an order made by himself or a fellow registrar. On behalf of the husband it was submitted that, as the order was interlocutory, the registrar did have power to rehear it. Alternatively, it was submitted, a fresh action could be begun by writ or originating summons and that the notice of application should stand as such an originating summons or originating application in the county court.
It was agreed that there appeared to be differences between the procedures to set aside an order for ancillary relief on the ground of material non-disclosure depending upon whether it was a registrar's order or a Judge's order, whether made by consent or not, and whether it was a county court or a High Court matter. Accordingly, the issue was what form an aggrieved respondent should apply to set aside an order on the ground of material non-disclosure.
Held –
Registrars(1) Where a registrar of the High Court or a county court was authorized under any Act or rules of court to deal with any proceedings, his powers were the same as those of the Judge. His powers to review by way of rehearing any final order made by himself or a fellow registrar were subject to the same limitations as those governing the Judges of the court in which he was sitting.
The position in the High Court(2) Generally Under certain old procedures there were limited powers for a Judge in matrimonial causes to rehear a matter which he or a fellow Judge had decided. By statutory provisions in 1873 and subsequent years, all appeals went to the Court of Appeal but applications for a rehearing in matrimonial causes were to be made to a Divisional Court. By r 46 of the Matrimonial Causes Rules 1924 the jurisdiction of the Divisional Court in this respect was limited to the power to rehear a cause when no error of the court was alleged. The position was now governed by the Supreme Court Act 1981. By s 16 of that Act all appeals still went to the Court of Appeal. By s 17 all applications for a new trial were to be made to that court except where rules of court provided otherwise. No rules had been made to enable an application for ancillary relief to be made. By r 54 of the Matrimonial Causes Rules 1977 an application for a rehearing when no error of the court was alleged should be made to a Judge, but this related to a rehearing of the cause only. The current position was, therefore, that a Judge or registrar of the High Court had no power to review by way of rehearing any final order which he or a fellow Judge or registrar had made; and this applied even when an order had been obtained by fraud or misrepresentation: Preston Banking Company v William Allsup [1895] 1 Ch 141; MacCarthy v Azard [1933] 2 KB 417; it also applied where the application was based on the grounds of fresh evidence: Re Barrell Enterprises [1973] 1 WLR 19.
(3) "No error of the court" Rule 54 of the Matrimonial Causes Rules 1977 contained the following provisions:
"(1) An application for a rehearing of a cause tried by a Judge alone (whether in the High Court or a divorce county court), where no error of the court at the hearing is alleged, shall be made to the Judge.
(8) Any other application for rehearing shall be made by way of appeal to the Court of Appeal."
[1990] FCR 654 at 656
The terms of the rule made it quite clear that there was a demarcation line between applications under para (1) for a rehearing made to the Judge and any other application under para (8) for a rehearing made to the Court of Appeal. The rule was intended to give to the Judge the right to order a rehearing in cases in which the parties themselves would not in the ordinary course be entitled to the Court of Appeal. Consequently, the phrase "no error of the court at the hearing" was intended to exclude all cases where an aggrieved party might seek to challenge a decision by the ordinary general procedure of the Court of Appeal: see Prince v Prince [1950] P 71 and the Cases referred to therein. The cases left open the question of principle of whether or not deception of the trial Judge by suppression of material facts was or was not the antithesis of his going wrong on the material before him. However, the preferred view today might be that the object of the rule was to enable the court to ensure, as far as possible, that there should be a trial of the real issue between the parties before permitting an appeal to the Court of Appeal. Such a view was consistent with the views expressed in Robinson v Robinson [1982] 1 WLR 786; MacCarthy v Azard [1933] 2 KB 417; Vint v Hudspith (1885) 29 Ch D 322; and Re Edwards' Will Trust [1982] 1 Ch 30; and with the reservations about the use of appeals expressed in Hip Foong Hong v H Neotia & Co [1918] AC 888 and Jonesco v Beard [1930] AC 298.
(4) Challenging an order Where a party wished to challenge a judgment or order on the ground that it was obtained by fraud or mistake, the only ways of doing it were by way of appeal to a higher court or by bringing a fresh action to set it aside: de Lasala v de Lasala [1980] AC 546. In the Family Division an order could also be challenged on the ground of material non-disclosure: Robinson v Robinson [1982] 1 WLR 786. Further, a fresh action was not necessary to set aside a consent order made in that Division as it could be challenged by way of appeal: de Lasala v de Lasala (above); Thwaite v Thwaite [1982] Fam 1; and Jenkins v Livesey [1985] AC 424. Despite the observations of Ormrod, LJ in Robinson v Robinson [1982] 1 WLR 786 at p 786H, there were procedural difficulties in applying to a Judge at first instance for a rehearing: see H v B (formerly H) [1987] 1 WLR 113. These difficulties could be overcome if the Matrimonial Causes Rules provided that in any case where full and frank disclosure had not been given, whether fraudulently or innocently, an application for a rehearing should be made to the Judge, preferably the one who made the order.
(5) Final and interlocutory orders The court had no power to vary or set aside its own final order. Different considerations might apply to an interlocutory order, which was one where the court had continuing power to vary its terms, as distinct from making orders in aid of enforcing those terms under a liberty to apply: see de Lasala v de Lasala [1980] AC 546 at p 561D. A lump sum or property adjustment order was a final and not an interlocutory order. Authority for the court's power to discharge an interlocutory order could be found in Mullin v Howell (1879) 11 Ch D 763; Ainsworth v Wilding [1896] 1 Ch 673; and Allsop v Allsop (1981) 11 Fam Law 18. There were contrary views in Prestney v Colchester Corporation (1883) 24 Ch D 376 and Lewis v Daily Telegraph Limited [1964] 2 QB 601; and these seemed to express the preferable view, certainly in so far as the interlocutory order decided matters of right between the parties. The case of Allsop (above) could be regarded as exceptional and limited to a decision that the court had power to set aside its own order where the parties consented to its doing so or where the facts were not in dispute and the...
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