CS v ACS & Anor

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 “An appellant or respondent requires permission to appeal … as provided by Practice Direction 30A”. He submits that if any part of PD30A is ultra vires “then the effect is to change the operation of the rules themselves.”

Mr Brunsdon Tully’s submissions do not sit very comfortably with the provisions upon which he relies, each of which pre-supposes that there is an appeal. The final sentence of PD30A, para 14.1, in contrast, is concerned with an entirely different question, namely whether some other form of procedure is permissible. Similarly, FPR 30.1(1) provides that “The rules in this Part apply to appeals to … (a) the High Court; and (b) the family court.” FPR 30.3 defines “appellant” as meaning “a person who brings or seeks to bring an appeal”. I am not here concerned, at least directly, with an appeal, for the whole point is that the wife does not bring or seek to bring an appeal. Contrary to Mr Brunsdon Tully’s submissions, the provisions to which he draws attention merely serve to emphasise how little the final sentence of PD30A, para 14.1, actually fits in with either the scheme or the detailed provisions of FPR Part 30.

Mr Brunsdon Tully’s sheet anchor is the decision of the Court of Appeal in Roult v North West Strategic Health Authority [2009] EWCA Civ 444, [2010] 1 WLR 487. That was a personal injury case where a final order had been approved by the court on the basis that the claimant would live in a local authority group home. Subsequently, it was decided that he would live, at greater cost, in privately obtained accommodation with privately engaged carers. The question arose as to whether the judge had power to re-open his order under CPR 3.1(7). The Court of Appeal held that he did not.

Mr Brunsdon Tully relies upon what Hughes LJ, as he then was, said in para 15:

“I agree that in its terms the rule is not expressly confined to procedural orders … It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.”

It is to be noted that Hughes LJ had earlier (paras 11-14) considered the ancillary relief cases, observing (para 13):

“What is certain is that this jurisdiction in family cases, whatever it may precisely be, can owe nothing to CPR r 3.1(7). That rule was not in existence at the time of most of the cases, and had no precursor in the RSC. More importantly, the CPR have never applied to family proceedings: see CPR r 2.1(2). Moreover CCR Ord 37, r 1 provides in the county court an explicit power to rehear a case which does not exist in the High Court.”

Mr Brunsdon Tully submits that, since FPR 4.1(6) is identical to CPR 3.1(7), there is no reason why the principle spelt out by Hughes LJ should not apply equally in family cases. In particular, he says, there can be no question of the final sentence of PD30A, para 14.1, being ultra vires, for all it does is to bring the limited class of case to which it applies into line with the true meaning and effect of CPR 3.1(7), and thus of FPR 4.1(6), as explained in Roult.

He adds three supplemental submissions. First, he submits that the final sentence of PD30A, para 14.1, does not encroach on the right of a litigant to apply to the court or on the substantive legal remedies available to a litigant if material non-disclosure is proved; it merely stipulates the procedural route, namely appeal, under which all these remedies are available. I cannot accept that: it encroaches upon the right of a litigant to apply to the court without first obtaining permission. Secondly, he submits that the power of the family court to exercise its powers under section 31F(6) is not fettered, either by FPR 4.1(6) or by the final sentence of PD30A, para 14.1, because an appeal from a district judge sitting in the family court lies to another judge, either a Circuit Judge or a judge of the High Court, of the family court. This, however, as Ms Sharghy and Mr Hubbard point out, overlooks the fact that the powers conferred by section 31F(6) of the 1984 Act include powers to “vary, suspend [or] rescind” any order. Thirdly, he submits that the final sentence of PD30A, para 14.1, which is the relevant provision in issue here, is not the rule that imposes the requirement that the litigant can proceed only with permission, and in any event a permission requirement is not a fetter or encroachment on the court’s powers such as to lead to a conclusion that the final sentence of PD30A, para 14.1, is ultra vires. The first part of this is, with respect, legal sophistry: since any appeal requires permission, a provision that challenge can only be made by way of an appeal is, in its effect, a provision imposing a requirement that the litigant can proceed only with permission. I have already said that I do not accept the argument that the final sentence of PD30A, para 14.1, does not fetter or encroach on the rights of the litigant or, consequently, on the powers of the court.

In response, Ms Sharghy and Mr Hubbard submit, by reference to more recent authorities, that Mr Brunsdon Tully reads more than is warranted into Roult. They submit that the final sentence of PD30A, para 14.1, purports to abrogate what they say is a long-established and indeed recently recognised right to challenge, at first instance, and without being subjected to any sort of prior filter by way of application for leave (see Re C (Financial Provision: Leave to Appeal) [1993] 2 FLR 799, 801), an order such as the one I am concerned with here. They submit that this right is recognised by both section 31F(6) and FPR 4.1(6). They point to Binks v Securicor Omega Express Ltd [2003] EWCA Civ 993, para 8, and Brennan v ECO Composting Ltd [2006] EWHC 3153 (QB), [2007] 1 WLR 773, para 28, as showing that in case of conflict between a rule and a practice direction, the practice direction must yield to the rule.

At this point I need to examine the more recent authorities.

In Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 1 WLR 2591, Rix LJ, with whom Etherton and Lewison LJJ agreed, surveyed the jurisprudence, including Roult and the decision of Briggs J, as he then was, in Kojima v HSBC Bank plc [2011] EWHC 611 (Ch), [2011] 3 All ER 359, to which Ms Sharghy and Mr Hubbard drew my attention. Based on that survey, Rix LJ set out various conclusions (para 39) of which I draw attention to the first three:

“(i)

Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR r 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.

(ii)

The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

(iii)

It would be dangerous to treat the statement of these primary circumstances, originating with Patten J and approved in this court, as though it were a statute …”

It will be noted that the Court of Appeal was not there concerned, as it had been in Roult, with an appeal from a final order.

The approach in Tibbles was replicated in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795, para 44, another case involving a procedural rather than a final order. In Arif v Zar and anor [2012] EWCA Civ 986, another case involving a procedural order, Patten LJ said this (para 27):

“far from being unrestricted, the power of the court to vary or revoke one of its own orders is ordinarily limited to cases where there has been a material change of circumstances since the order was made or the original order can be shown to have been based on misstated facts or material non-disclosure. In most other cases the finality of the court’s orders has to be respected and the proper way of challenging the order is by way of appeal.”

I next consider two ancillary relief cases in which the point arose. The first is Musa v Karim [2012] EWCA Civ 1332, which was an appeal against a final ancillary relief order in a case where what was alleged was serious non-disclosure. It was submitted that appeal was not an available remedy in such a case. That submission was rejected. Thorpe LJ said (para 15):

“it is perfectly open to the applicant who seeks to establish a case of non-disclosure to go either by way of appeal to this court or by application to the first instance court, depending on the circumstances of each and every case.”

Morgan J agreed with Thorpe LJ. Sullivan LJ, while agreeing that an appeal lay, preferred to leave the wider question open.

The second case, also in the Court of Appeal, is Gohil v Gohil (No 2) [2014] EWCA Civ 274, [2015] Fam 89. Although it needs to be read in the context of a longer passage in his judgment (paras 57-61), with which both Arden and Pitchford LJJ agreed, it suffices to quote a very short extract (para 57) from what McFarlane LJ said:

“The jurisdiction of a court in family proceedings to set aside a final order for financial provision, whether following a trial or a consent order, as a result of material non-disclosure was confirmed by the House of Lords in Jenkins v Livesey [[1985] AC 424]. It has very recently been reaffirmed by this court in Sharland v Sharland [2014] EWCA Civ 95, [2014] 2 FLR 89 (Moore-Bick, Briggs and Macur LJJ).”

The position in which I find myself, sitting at first instance, is one of some delicacy. In none of Musa v Karim, Sharland v Sharland or Gohil v Gohil (No 2) does there appear to have been any consideration of either the final sentence of PD30A, para 14.1, or of the line of cases running from Roult to Arif. Moreover, in both Sharland v Sharland and Gohil v Gohil (No 2) the Supreme Court has given permission to appeal, though the appeals are yet to be heard. I should add (see below) that the whole issue is currently being considered by a Working Party of the Family Procedure Rule Committee.

I conclude this survey of the authorities with reference to two decisions of Mostyn J.

In MAP v RAP [2013] EWHC 4784 (Fam), paras 20-21, having referred to PD30A, para 14.1, Mostyn J continued:

“20

I am of the view that the appeal route is mandatory in respect of a consent order made by a district judge where there is no real challenge to the validity of the consent order per se. So, for example, if a challenge is being made under the famous case of Barder v Barder, then it seems to me that the Practice Direction fully applies and the appeal route is the only available route …

21

I believe that it is right also to characterise an appeal which is based on non-disclosure as being one that falls on the side of the line where an appeal is the appropriate route, although I accept that two views could be taken as to whether the fact of non-disclosure if proved in fact destroys any consensual element to the order under attack.”

In In re F (A Child) (Return Order: Power to Revoke) [2014] EWHC 1780 (Fam), [2014] 1 WLR 4375, a children case, Mostyn J considered the ambit of FPR 4.1(6) and, amongst various authorities, the decisions in Roult, Tibbles, Musa v Karim and Gohil v Gohil (No 2). He concluded (paras 20-21) that FPR 4.1(6) applied to final orders and that it permitted an application to be made where there had been non-disclosure. Seemingly, however (para 11), he treated the final sentence of PD30A, para 14.1, as a valid exception to FPR 4.1(6).

In the light of this survey of the authorities, I conclude that the decision in Roult will not bear the weight of the argument that Mr Brunsdon Tully seeks to derive from it. In common with Mostyn J in In re F, I read the decisions of the Court of Appeal in Musa v Karim, Sharland v Sharland and Gohil v Gohil (No 2) as demonstrating that FPR 4.1(6) continues to permit what had long been established, namely that an application such as the one being made here by the wife can be made to the judge at first instance.

What then of the final sentence of PD30A, para 14.1? In my judgment, and with all respect to the makers of PD30A, it was ultra vires their powers. And if that is so, then I can without more ado say so and treat it as a nullity: compare General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272, where, in the course of ordinary proceedings in the Queen’s Bench Division, CPR rule 48.7(3) was held to be ultra vires. (I make clear that I refer to this case, which was very different from the present case, not in support of my conclusion that the final sentence of PD30A, para 14.1, was ultra vires but only as to the procedural consequences which flow from such a finding.)

There are essentially two reasons which lead me to this conclusion. First, and whatever the exact ambit of the phrase “practice and procedure” in section 81(1) of the 2003 Act, it cannot in my judgment extend, as here, to a provision purporting to forbid a litigant to have recourse to a form of remedy long recognised by the common law, let alone to a remedy expressly conferred by both statute (section 31F(6) of the 1984 Act) and rule (FPR 4.1(6)). Secondly, there is, for the reasons given by Ms Sharghy and Mr Hubbard, a conflict between, on the one hand, the statute and the rule and, on the other hand, the practice direction, which requires the latter to yield to the former.

It follows, in my judgment, that the wife is entitled to proceed as she has and that she does not require the permission of the court to do so.

More than 25 years after Ward J’s first complaint, too little has yet been done to remedy matters. The continuing complexity of the law is exemplified by the necessarily detailed analysis of the point by the editors of Financial Remedies Practice 2015, paras 4.5-4.17. The continuing lack of clarity is illustrated by my analysis in this judgment. It is profoundly unsatisfactory that the courts should still have to take up so much of their time and their litigants’ resources dealing with such matters. The final Report of the Financial Remedies Working Group, 15 December 2014, expressed the view (para 13) that “clarification of the procedures for re-opening first instance orders in financial remedy proceedings is required” and said that it “would strongly support amendments to the Family Procedure Rules for that purpose.” I doubt that anyone could possibly disagree. Remedial work is now a matter of pressing urgency, unless we are complacently to condemn another generation of litigants to a procedural maze which is a discredit to family justice. I add only this. The Working Party may wish to consider the extent to which these problems are capable of solution by either Rule or Practice Direction. It may be that primary legislation is required.