AM v NW

The parties were married for fifteen years before they separated in 2022. They are in their fifties with applicant (‘husband’) about three years older than the respondent (‘wife’). They have a ten year old child who spends equal time with her parents. Husband continues to live at the former matrimonial home. Unhappily, since their separation the parties have been embroiled in ligation including those relating to their child and latterly their finances.

The financial remedy proceedings came before DJ Nicholson (SiR) (‘the judge’) on 10 March 2025 for a three day final haring. On the first day of the hybrid final hearing the husband attending remotely, renewed his application to adjourn the final hearing. The application was refused after which the H did not or could not participate in the proceedings. The judge proceeded in his absence and made final orders regulating the parties’ finances. There is a dispute about the circumstances leading to the husband not participating in the final hearing with the wife asserting that it was a deliberate choice and the husband stating that it was due to technical difficulties that he was experiencing.The husband now applies to set aside the final order of the judge and the wife applies to enforce its terms.

The relevant body of rules governing the court’s powers, practice and procedure are set out in the Family Procedure Rules 2010 (‘FPR10’). The court must apply these rules consistently with the overriding objective which is set out in Part 1. In summary it provides that the court must deal with cases “justly” which includes the case being dealt with “expeditiously and fairly,” proportionately in accordance with “the nature, importance and complexity of the issues,”“ensuring that the parties are on equal footing,” “saving expense” and allotting to the case “appropriate court resources.”

The court’s wide ranging general case management powers are set out in Part 4 of the FPR10 and among its several specified provisions, include power to:

“4.1

…

(3)

Except where these rules provide otherwise, the court may –…

(c)

adjourn or bring forward a hearing;

…

(k)

decide the order in which issues are to be heard;

(l)

exclude an issue from consideration;

(m)

dismiss or give a decision on an application after a decision on a preliminary issue;

…

(o)

take any other step or make any other order for the purpose of managing the case …

(5)

Where the court gives directions it will take into account whether or not a party has complied with any relevant pre-action protocol.

(6)

A power of the court under these rules to make an order includes a power to vary or revoke the order.

(7)

Any provision in these rules –

(a)

requiring or permitting directions to be given by the court is to be taken as including provision for such directions to be varied or revoked; and

(b)

requiring or permitting a date to be set is to be taken as including provision for that date to be changed or cancelled.”

Part 27 of the FPR10 more specifically addresses court hearings and directions appointments. The provisions of r. 27.3 requires parties to attend court hearings unless the court has permitted them not to do so. In the latter part, r. 27.4 addresses “proceedings in the absence of a party” providing that:

“(1)

Proceedings or any part of them shall take place in the absence of any party, including a party who is a child, if –

(a)

the court considers it in the interests of the party, having regard to the matters to be discussed or the evidence likely to be given; and

…

(2)

Subject to paragraph (3), where at the time and place appointed for a hearing or directions appointment the applicant appears but one or more of the respondents do not, the court may proceed with the hearing or appointment.

(3)

The court shall not begin to hear an application in the absence of a respondent unless –

(a)

it is proved to the satisfaction of the court that the respondent received reasonable notice of the date of the hearing; or

(b)

the court is satisfied that the circumstances of the case justify proceeding with the hearing.

(4)

Where, at the time and place appointed for a hearing or directions appointment, one or more of the respondents appear but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant …”

If, pursuant to the aforementioned rule the court proceeds in the absence of a party, the absent party may apply under r. 27.5 to set aside the judgment or orders made against him/her. The said rule provides that:

“(1)

Where a party does not attend a hearing or directions appointment and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

The provisions of Part 27.5 are relatively new in family proceedings introduced in the FPR10 and mirror the well-established terms of Part 39 of the Civil Procedure Rules (1998). Save for a recent decision by the Court of Appeal in K and D (Children: Sexual abuse findings) [2025] EWCA Civ 263 in which the provisions of r. 27.5 FPR10 was identified as the correct route to challenge a decision that was made in the absence of a party, there are no other authorities in the family jurisdiction and the court is guided by the authorities that have developed in the civil jurisdiction. I will address some of these later in this judgment.

The parties’ relationship post separation has continued to be difficult. The proceedings have been protracted and at times procedurally fraught. Having considered the papers in these proceedings, it is apparent that the court has taken such steps as it could to progress the matter. The broad dispute of the parties is centred around the matrimonial home and a collection of art work, both of which have been and continue to be in the control or possession of the husband.

The first hearing in this matter took place on the 21 August 2023 when the court ordered further disclosure and responses to questions which was intended to make the case ready for the next hearing which was to be a Financial Dispute Resolution Hearing (FDR). The FDR was first listed to be heard on 27 February 2024 but was adjourned to 10 July 2024 due to ongoing issues with disclosure and computation of the assets. The parties did not reach an agreement and the matter was listed for a final hearing commencing on 10 March 2025 for three days. The terms of the order from the July 2024 FDR hearing highlight a number of areas of dispute in the case together with missing or lack of information. The court gave detailed directions including very clear directions addressing the shortfall in disclosure that was ordered at earlier first appointment and adjourned Financial Dispute Resolution Hearing.

The directions also provided for the instructions of a single joint expert (SJE) to value some of the assets including the valuation of the art collection in husband’s possession. The court was clear that if the parties failed to agree to instruct an expert, the final hearing would continue to be heard in the absence of expert evidence. The parties failed to instruct a SJE and at the Final Hearing the only valuation of the art work was one that the husband had provided earlier in the proceedings, in which the same valuer provided a valuation of about £4.5 million for insurance purposes and a valuation of just over £400,000 for other purposes. The higher valuation was relied upon by the judge at the final hearing when reaching his final decision.

The matter came before the court again on 19 February 2025 to consider the husband’s application for a change to the venue of the final hearing. The application was refused but the parties were permitted to attend the Final Hearing remotely. The husband made an application thereafter to adjourn the final hearing and this was considered on the papers and refused on 7 March 2025.

The wife and her legal team were in attendance in the court building for the final hearing. The husband attended remotely and was unrepresented. The husband orally renewed his application for an adjournment and this was once again refused. Thereafter, he did not participate in the hearing. The wife asserts that this was a conscious decision by him to disengage with the hearing and that he disconnected the link to the hearing. The husband denies this and asserts that there was a poor connection and he was cut off. The judge was persuaded to continue with the hearing which he did in the afternoon of 10 March and on 11 March leading to a final order dated 11 March 2025 (the ‘order’).

On 16 April 2025, the husband applied for permission to appeal the order, which I refused on considering the papers as the appeal did not disclose any cause or any prospect of success. The husband, as he is entitled to, requested an oral hearing on his application which was considered by another judge who listed it for a hearing before me. I heard the husband’s application on 21 May 2025 when he was represented. I dismissed his application save in respect of the judge’s decision not to adjourn the matter. It was accepted by the husband that the appeal was not the correct procedural route to challenge the order and that he should be applying to set aside the order. I gave fourteen days in which the husband could make his application together with other directions including a stay of the order for the same period and granting the Husband’s application for an expedited transcript of the March hearing at public expense. Unfortunately, no transcript was previously ordered by the court.

In the meantime, on 25 April 2025 the wife made an application to enforce the terms of the order and this was listed to be heard on 28 May 2025. Given the outcome of the permission to appeal hearing, the wife applied to adjourn the enforcement hearing, which I granted on considering the papers. Subsequently, the court relisted the enforcement application on 3 November 2025.

On 4 June 2025, the husband made his application to set aside the order together with his supporting evidence, this being the last day of the fourteen day period to make his application. On 11 June 2025, the Court served the wife with the application but not the supporting evidence which was later served on the wife by the husband on 1 July 2025. On 6 June 2025, Husband’s application was considered by another Judge who listed the matter to be dealt with alongside Wife’s application on 3 November 2025 at a hearing with a time estimate of 3 hours.

On 27 June 2025, without prior notice to the Husband, the Wife issued an application for an urgent hearing to summarily dismiss the husband’s set aside application and to enforce the terms of the order. After the matter was referred to me, I listed the wife’s urgent application to be heard on 1 July 2025. The hearing was on short notice and after considering the parties’ respective positions that day, I gave further directions and brought forward the husband’s set aside application from 3 November to be heard on 3 July 2025, with a time estimate of three hours. The need for urgency to hear this matter arises due to the Wife submitting that there is a pending application for possession of the former matrimonial home and that there are threats that applications for possession are being made by two creditors who have a charge secured on the property with the first application being listed on 5 August 2025.

I am grateful to both counsel and the wife’s solicitors for their industry and energy in addressing the number of issues that have arisen in this matter and navigating the very difficult and emotive issues in the case with sensitivity. The parties have each filed two written submissions and have made detailed oral submissions about the applications before the court.

With customary careful and detailed analysis, Miss Godfrey-Lockwood points to a number of elements and features of this case marking an impermissible intrusion into the husband’s rights to a fair rial and family life (articles 6 and 8 ECHR respectively). She goes further by submitting that the collective impact of all of these is an even greater intrusion into the said rights. Whilst recognising that the relevant rules apply equally to litigants regardless of whether they are represented or not, the court is tasked with ensuring that the necessary steps are taken to ensure that the parties are on an equal footing and the processes adopted by the court are fair.

She cites a number of examples in support of her submissions. This include, the delivery of a court bundle on the last working day before the final hearing was due to commence, the service of the wife’s positions statement and skeleton argument on the husband on the morning of the final hearing which was thick with information and legal arguments, lack of any weight being given or recognition of the husband’s wish to be legally represented, not addressing the concerns about the husband’s ability to participate remotely with a link that was failing, making little or no effort to re-engage the husband in the court process after his remote link failed, not keeping him informed about what the court intended to do, including proceeding in his absence. the unfairness has resulted in a perverse outcome where the court has effectively endorsed the wife’s open position which is an unsustainable departure from equality and highly prejudicial to the husband.

As a litigant in person the husband cannot be criticised for pursuing the incorrect procedural route to challenge the order. He has acted promptly and the court has already recognised this by giving him the opportunity to correctly apply for an application to set aside the order. He cannot be criticised for a failing of the technology that prevented him participating in the hearing and little effort was made to reengage him. For reasons that are summarised above he has every prospect of success. Therefore, all three limbs of the test under r. 27.5(3) are manifestly satisfied and the order must be set aside.

With equal clarity and careful detailed analysis, Mrs Kavanagh submits that the application by the husband must be considered in the overall context of the case and his conduct leading to the final hearing. She points to a number of examples of the husband not cooperating with the court process, not providing any or adequate disclosure of his financial circumstances, placing the wife at a significant disadvantage and legal expense. The husband has continued to live at the family home to the exclusion of the wife as joint owner and has retained full control of the art collection which is the only other significant matrimonial asset. Despite the length of separation and these proceedings, the wife remains unclear about what remains of the assets and the recent letter threatening possession proceedings serve to illustrate how the husband has excluded her from any dealings or knowledge of the matrimonial assets, which he alone controls.

Mrs Kavanagh continues by submitting that the husband has manifestly failed to meet the three limbs of the test. He has not acted promptly and his email to the court in the morning of 11 March 2025 is a disingenuous attempt to excuse his decision not to engage in the proceedings. Furthermore, he has offered no real reason as to why he left the hearing and his assertion that this was due to technical issues and connectivity with the remote platform is unsustainable in the face of the Judgment and Order of the Final Hearing. Finally, however success is measured in this context, the husband has no prospect of succeeding in circumstances where the overall division of the assets is fair and justified by the evidence that was before the judge.

The acrimony of the parties and the heat in the parties relationship has been a significant barrier to finding finality in this litigation. The husband has had the benefit of legal advice but has at some crucial junctures been a litigant in person. The law and procedural rules cannot be diluted to accommodate the lack of legal representation. However, this is a relevant significant factor when considering the husband’s recent conduct leading to the current applications before the court. Furthermore, it is also clear to me that the breakdown of communications between the husband and the wife’s solicitors has added to unnecessary applications being made to the court and important documents not exchanged. The wife’s application for summary dismissal of the husband’s application to set aside is a vivid example.

The parties are required to attend court hearings unless the court has permitted them not to do so (r. 27.3). The husband clearly attended the first day of the final hearing in the morning of 10 March but not after his application for an adjournment was refused. There is a factual dispute between the parties as to why the husband did not attend the remainder of the hearing. Applications under r. 27.5 are ordinarily heard and resolved on submissions. By their very nature, such applications are not intended to delve into the detail of factual dispute between the parties and hearing evidence on the same. Whilst the door to such a scenario cannot be firmly closed, I am not aware of any authority or case where the court has heard oral evidence of the parties before determining an application under the said provisions. All of the authorities approach such an application on submissions. Furthermore, neither party has suggested that I should hear oral evidence.

By its very nature, lack of attendance at a hearing will cause prejudice to the absent party. To this end, the order of 21 May 2025 provided a mechanism for the husband to obtain an expedited transcript of the March hearing to inform his decision whether to issue his application to set aside the final order and if required, to rely on the same in support of such an application. He was represented by counsel at the May hearing and I am entirely satisfied that he was fully aware of the purpose and function of the court’s directions made at that hearing, not least as some time was spent discussing the issue of funding the transcripts so as to avoid delay. It is most regrettable that the husband failed to make such an application for a transcript in a timely fashion in accordance with my directions. On the afternoon before this hearing he was provided with a note of the relevant parts of the March hearing as prepared by the Wife’s solicitors, which has in turn also assisted the court.

The notes of the hearing produced on behalf of the wife are from two sources, the wife’s solicitor and a paralegal with the latter providing close to a verbatim note of the hearing. The notes illustrate that during the first part of the hearing, the husband was becoming increasingly animated and agitated. Towards the end of this part, he was speaking over the judge who was struggling to hear or understand the husband leading to the judge observing that he would mute the husband if he continued. Shortly after this point the husband disengaged with the hearing by disconnecting his computer from the remote platform. Even allowing for some inaccuracies through misinterpretation or focus of the note taker, it is clear to me that this was in fact what the husband did. This is further supported by the recital on the order of 11 March 2025 in which the judge notes the husband’s disengagement with the process. There is no evidence that supports the husband’s contention that there were any technical issues.

Furthermore, the husband’s criticism of the wife’s solicitor producing these notes late and adding to the cumulative unfairness of the process is misconceived. As the applicant, the husband must provide the evidence that he wishes to rely on and that includes the transcripts of the hearing. He has manifestly failed to do so. The assertion that he believed that this was unnecessary given the listing of his application in November 2025 is in my judgement equally misconceived.

Following the refusal of the husband’s application to adjourn the final hearing and him leaving the hearing, the court emailed the husband to inform him that the judge would resume the hearing at 2 pm and that he should join the remote hearing link he had already used. The husband states that he did not see this email and his next contact with the court was the following morning when he emailed the court enquiring about the hearing. In my judgment this is entirely inconsistent with his assertion that his link suffered technical difficulties. In such circumstances one would expect him to have made several attempts at contacting the court to inform the judge of the issues and to make attempts at rejoining the hearing. There is no evidence of him making any such attempts to contact the wife’s solicitor or the court on 10 March 2025.

Turning to the three limbs of the applicable test, the Court of Appeal in Bank of Scotland v Pereira & Ors [2011] EWCA gave a most helpful guidance that included reference to the court’s previous decision in Regency Rolls Ltd v Carnall [2000] EWCA Civ 379 and noting that the applicant must satisfy all three limbs of the test, only after which the court has a discretion to excise and set aside an order. Lord Neuberger MR did, however, question the limited circumstances in which such discretion would not be exercised if all three limbs of the test are satisfied.

Gibson LJ in an earlier decision of the Court of Appeal in Kirton v Augustus Limited[1996] PIQR 388, albeit by reference to the County Court Rules that have the same terms as r.27.5 FPR10, recognised the purpose of the said rules as one that would enable the court “to correct an injustice if, for some unavoidable reason, a party had not been present at a hearing.” and

“When a party deliberately chooses either to be in court but not to make representations at the hearing, or to depart from court so as to avoid being there when the order is made, I cannotsee how that party can bring himself within the purpose of the rule”

In the present case, it is clear that the husband contacted the court on 11 March 2025. Once he became aware that the court had made a final order, he took reasonable steps to challenge the said order. Whilst he has followed an incorrect procedural route to challenge the judge’s final decision, it is important to note that he was a litigant in person and it would be unreasonable to expect him to possess the technical knowledge to pursue a challenge through the correct procedural route. Balanced against this is his conduct during the hearing, particularly his inaction during the remainder of 10 March 2025. By a fine margin I am satisfied that in the circumstances he acted promptly and has met the requirements of the first limb of the test.

However, for reasons that I have set out above, I do not find that the husband had a good reason for not attending the hearing. He clearly attended the first part of the hearing and as the evidence demonstrates, he made a decision to disengage with the remainder of the hearing. Whilst I take into account the challenges that he faced including service of a detailed position statement or skeleton argument at short notice, in my judgment this is not a good reason for not attending the remainder of the hearing. The degree of his disengagement went far beyond a short emotional reaction to difficult circumstances. Having some time during the late morning and lunch, he could have joined the hearing at 2 pm as directed by the judge. His assertion that he did not see this email until it was too late further illustrates his mindset as a litigant who did not want to engage with the final hearing. Therefore, the husband has failed to satisfy the second limb of the test.

For completeness I will also address the third limb that requires the husband to satisfy the court that he has a reasonable prospect of success at the hearing. The measure of what constitute success is one that can only be assessed in the context of the type of application or action, jurisdiction within which it is brought and the statutory or regulatory provision that has guided the court in reaching its decisions. In the present case, the Matrimonial Causes Act (1973) governs the court’s powers to make orders that regulate the parties financial relationship in the wake of the breakdown of their marriage. The said Act requires the court to take account of a number of factors that are set out in the s. 25, after which the Act bestows upon the court a wide discretion to make orders that are demanded by the justice and fairness in the particular circumstances of a case. The orders that the judge made were based on the evidence that was before him, including the evidence that was adduced by the husband that importantly included the valuation of the art collection. Whilst the terms of the final order are not to the husband’s liking, they are not on any view outside the wide discretion of the court.

The husband has made much criticism of the wife’s solicitors and their conduct together with the contribution to the overall unfairness of the process leading to the final order of the court. I have no doubt that dealing with lawyers as a litigant in person can be daunting. I am equally certain that letters that make threats of seeking cost orders or raising litigation conduct can place a degree of pressure upon the recipient. However, there is nothing that I have found in the conduct of the wife’s solicitors that is open to such harsh criticism. The evidence demonstrates that whilst observing their duties to their client and dealing with complaints by the husband, they have acted in a way that would be reasonably expected for them to have acted. They have tried to engage with the husband who has refused to correspond with them. They have produced court bundles in a timely fashion that the husband has again not responded to. In the circumstances, considering the court’s wide discretion and the conduct of the parties, I do not find that the third limb of the test is satisfied.

If all three limbs had been satisfied, the court will retain a discretion to set aside the order. It is hard to imagine in the circumstances that I have set out above, how the court would exercise its discretion and allow the husband’s application.

For reasons that I have set out above, the applicant husband has failed to satisfy the second and the third limb of the test that is set out in r. 27.5(3)(b) and (c) and I accordingly dismiss his application to set aside the final order dated 11 March 2025. Given fast approaching possession proceedings, I will permit the husband fourteen days from the date of this judgment (3 July 2025) to comply with the terms of the said final order. I adjourn the wife’s application for costs to the next enforcement hearing.

Finally, may I take this opportunity to observe that applications to set aside should be made to the judge who made the order that is the subject of the application. Where this is not possible, a judge of the same tier should hear the application. In the present case neither was achievable in the required timeframe.