CS v ACS and Another
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 16 April 2015 |
| Neutral Citation | [2015] EWHC 1005 (Fam) |
| Date | 16 April 2015 |
| Court | Family Division |
| Docket Number | Case No: FD07D06111 |
[2015] EWHC 1005 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: FD07D06111
Ms Pegah Sharghy and Mr Mark Hubbard (instructed by Starke & Co Family Law) for the Applicant
Mr Matthew Brunsdon Tully (instructed by Stephen Rimmer LLP) for the First Respondent
The Second Respondent appeared in person
Hearing date: 27 February 2015
Sir James Munby, President of the Family Division:
On 27 November 2008, District Judge Peter Greene sitting in the Principal Registry of the Family Division approved the terms of a consent order finally disposing of ancillary relief proceedings between the applicant wife (the petitioner in the suit) and the respondent husband. The resulting order is dated 28 January 2009 and was sealed on 29 January 2009.
By application notice dated 14 October 2013 the wife applied for an order "to set aside paragraph 9" of the Order of 28 January 2009 "and to substitute the nominal maintenance order in paragraph 7 with one of substantive maintenance." The wife's statement in support dated 14 October 2013 makes clear that the basis of the application is her allegation that the husband failed to provide full and frank disclosure. Particulars of that allegation are set out in Particulars of Non-Disclosure dated 24 September 2014. Nothing turns for present purposes on the details.
The matter came before me for directions on 27 February 2015 and to determine the question whether, as Ms Pegah Sharghy and Mr Mark Hubbard submitted on her behalf, it was open to the wife to proceed as she had or whether, as Mr Matthew Brunsdon Tully on behalf of the husband submitted in reliance upon PD30A, para 14.1, her only remedy was to appeal. The reason why this technical and seemingly arid point is of practical importance is, of course, that while permission is required to pursue an appeal, permission is not a pre-requisite to an application of the kind made by the wife.
It is clear that a final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure: see L v L [2006] EWHC 956 (Fam), [2008] 1 FLR 26, para 34, referring to the relevant authorities.
As I mentioned in that case (para 37):
"There is an extensive jurisprudence analysing the means by which such applications can be brought before the court … Much of this jurisprudence is both complex and, particularly where what is sought is to challenge a consent order made by a district judge, confusing and confused. It is, I venture to suggest, yet another area where there is a pressing need for legislative clarification and simplification. As Bracewell J pointed out in Benson v Benson (Deceased) [1996] 1 FLR 692, at 606, Ward J (as he then was) had commented as long as 1989 in B-T v B-T (Divorce: Procedure) [1990] 2 FLR 1 that the various procedures were unsatisfactory and cumbersome, yet, as she dryly observed, 'the difficulties persist'. That was in 1995. In 2002 in S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1, [2002] 1 FLR 992, at para [11], the same judge observed that the law was in 'a most unsatisfactory state'. It is now 2006 and little has been done, and nothing effective, to remedy matters."
I described it (para 39) as a "procedural quagmire".
I concluded (para 38) that:
"it suffices to say that where it is sought to challenge a consent order in ancillary relief proceedings it is, or may be, possible to do so by one or more of the following:
(i) a fresh action to set aside the consent order;
(ii) an appeal;
(iii) an application to the judge at first instance".
The availability of the first of these remedies is well-established by authorities at the highest level: see Jonesco v Beard [1930] AC 298 and, in relation to ancillary relief, de Lasala v de Lasala [1980] AC 546, 561. The second of these remedies – appeal – requires no elaboration. The third arises either under rules of court – when Ward LJ was considering the point in Harris v Manahan [1997] 1 FLR 205, the relevant rule was Order 37 rule 1 of the County Court Rules 1981 – or seemingly under the general jurisdiction of the court: see Robinson v Robinson (Practice Note) [1982] 1 WLR 786 and Re C (Financial Provision: Leave to Appeal) [1993] 2 FLR 799. The approach in Robinson was endorsed recently in Gohil v Gohil (No 2) [2014] EWCA Civ 274, [2015] Fam 89, paras 57–61.
The "extensive jurisprudence" to which I referred included the important judgment of Ward LJ, as by then he had become, in Harris v Manahan [1997] 1 FLR 205. Having painstakingly traversed the quagmire, Ward LJ suggested that the Family Proceedings Rules Committee might usefully look again at the matter. He "tentatively" made certain suggestions (page 218), one being that "the appeal route is discouraged where rehearing [by the judge at first instance] is more appropriate."
Recently, some steps have been taken to remedy matters.
First, section 31F(3) of the Matrimonial and Family Proceedings Act 1984 (as inserted by the Crimes and Courts Act 2013) provides that:
"Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties."
However, section 31F(6) provides that:
"The family court has power to vary, suspend, rescind or revive any order made by it, including –
(a) power to rescind an order and re-list the application on which it was made,
(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c) power to vary an order with effect from when it was originally made."
Rule 4.1(6) of the Family Procedure Rules 2010, which is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, provides that:
"A power of the court under these rules to make an order includes a power to vary or revoke the order."
So the family court (by virtue of section 31F(6)(a) and FPR 4.1(6)) has a general power to "rescind" or "revoke" an order. The power although general is not unbounded: see Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 1 WLR 2591, and Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795, para 44. Central to the issue before me is the extent of the power.
So far so good.
The second change arises in this way. Appeals to the family court, and from the family court to the High Court, are regulated by FPR Part 30. FPR 30.3(1)(a) provides that permission to appeal is required where the appeal is from a district judge. FPR Part 30 is supplemented by PD30A – Appeals. PD30A para 14.1, headed 'Appeals against consent orders' provides that:
"The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged" (emphasis added).
The issue before me relates to the passage I have emphasised. The reason why the point is of practical importance is, as I have mentioned, that while permission is required to pursue an appeal, permission is not a pre-requisite either to an action to set aside or, more importantly, to an application pursuant to section 31F(6)(a) and/or FPR 4.1(6).
Mr Brunsdon Tully takes his stand on PD30A, para 14.1. He points to Financial Remedies Practice 2015 where the editors, who include both Sir Peter Singer and Mostyn J, suggest (para 4.8) that the old cases suggesting that such applications could be made at first instance "are all now overreached" and (para 30.97) that "that single short sentence in PD30A had rendered otiose a great deal of sterile case law". In previous editions the editors had added "This long overdue reform is much to be welcomed." Mostyn J has expressed similar views judicially (see below).
Ms Sharghy and Mr Hubbard point to the more sceptical view expressed by the editors of Dictionary of Financial Remedies, 2015 edition, page 65, where, after saying that "There is an element of confusion about the appropriate way of launching an application of this nature", they opine that "the most likely solution" is an application under FPR 4.1(6).
Following the hearing it occurred to me that there might be a question as to whether the final sentence of PD30A, para 14.1, was ultra vires. On 21 March 2015 I sent counsel a draft judgment setting out my preliminary conclusion that it was ultra vires. I invited counsel to make any further submissions they wished. Both Mr Brunsdon Tully and Ms Sharghy and Mr Hubbard availed themselves of the opportunity.
The power to make Practice Directions in relation to family proceedings is conferred by section 81 of the Courts Act 2003. Section 81(1) confers power to make directions as to "practice and procedure". Section 81(2A) provides that directions as to the practice and procedure of any relevant court in family proceedings "may provide for any matter which … may be provided for by Civil Procedure Rules." As Mr Brunsdon Tully points out, PD30A was made by the then President of the Family Division in accordance with Schedule 2 to the Constitutional Reform Act 2005 and approved by the Parliamentary Under Secretary of State.
Mr Brunsdon Tully submits that PD30A is "embedded" in FPR Part 30. He points to FPR 30.1(4), which provides that "This Part is subject to any … practice direction which sets out special provisions with regard to any particular category of appeal", to FPR 30.2, which provides that "All parties to an appeal must comply with Practice Direction 30A", and to FPR 30.3(1)(b), which provides that...
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