Consent Orders: Setting Aside or Appeal and Non Disclosure Revisited

The issue of setting aside a Consent Order in the context of non-disclosure was revisited in the recent case of Norman v Norman [2017] EWCA 120.

The case, heard by the Court of Appeal on the 19th of January 2017, with Lady Justice King delivering the approved judgement, was an application for permission to appeal with the appeal to follow if granted.  The issue on appeal was whether notwithstanding that this was effectively the Wife’s third application to set aside an order made in 2005 justice demanded that it should be set aside.  The Court of Appeal refused the Wife’s application and refused permission to appeal.

It is noteworthy that this case was heard on the 19th of January 2017, after the amendments on the 3rd of October 2016 to the Family Procedure Rules by the enactment of the (new) rule 9.9A[1] supplemented by a new para 13 to PD9A[2]

relating to the setting aside of financial remedy orders and (a new) para 4.1B to PD30A[3] in respect of appeals.  However given that the case pre-dated the new rules, as indicated below, the Court considered the procedural issues in relation to the legislation and case law prior to the enactment of the new rules.

Regarding the facts, as the Appellate Court indicated, this case was very fact specific: the parties married in 1993 and had two children, who at the time of the appeal hearing were 22 and 19 years respectively.  The parties had separated in 1998 and as the Court indicated, this was a 5 year marriage.  However, 18 years later litigation was still continuing.

In respect of non-disclosure, Lady Justice King noted District Judge Raeside’s (as she then was) remarks on the 15th of October 2009, namely “it has been a fatal combination; a determined and dogged wife who believes nothing that her former husband tells her; and a husband who feels persecuted by this former wife who hounds him before the courts to the point of illness, and who is less than forthcoming to the wife in terms of his disclosure as a result”[4].

The Appellate Court highlighted the fact that this was not a so called “big money case” and that it was the Consent Order that had been made in January 2005 (“the 2005 Order”) that lay at the heart of the appeal.

At the first directions appointment (“FDA”) in January 2005 the capital needs of the Wife and children had been resolved by the Husband having given the Wife the whole of the equity in the former matrimonial home (“FMH”). The main issue at FDA was the question of ongoing maintenance for the Wife and the term thereof, the Wife having worked until 2002.  It was agreed, which agreement was reflected in a Consent Order, that the Wife would receive maintenance by

way of periodical payments for herself in the sum of £1,000 per month for a period of 5 years. The recital to the Consent Order contained a provision that it was intention of both parties that the Wife would become financially independent from the Husband within 5 years of the date of the Order.   It was also agreed that the Husband would pay a lump sum of £6,000.00 as a contribution towards the wife’s costs.  The Consent Order did not contain a section 28(1A) bar[5].  Accordingly the Wife was entitled to apply for an extension of the five year term.

On the 29th of February 2008, the Wife applied to extend the term of periodical payments.  Following a three day hearing in September 2009, disclosure and oral evidence, DJ Raeside made an order on the 24th of November 2009 (“the 2009 Order”) allowing the Wife’s application for an extension of the term[6] but imposed a Section 28(1A) bar.  The W duly appealed the 2009 Order.  The Wife’s appeal was allowed by His Honour Judge Rylance (“HHJ Rylance”) and by Order of the 26th May 2010 , the term was further extended and the S28(1A) bar removed.  The husband in turn appealed HHJ Rylance’ Order and on the 4th of July 2011 the matter came before the Court of Appeal for the first time.  The Court of Appeal allowed the husband’s appeal:  the 2009 Order was duly re-instated.  The Wife’s application to appeal to the Supreme Court was refused.

As the Appellate Court indicated, proceedings in respect of periodical payments represented but “one thread of the litigation between these parties at the time”[7].

At the September 2009 hearing, the Wife had two further applications which were held over until the conclusion of the substantive variation application. One of those applications was to set aside the 2005 Consent Order in its entirety based on material non-disclosure. The Wife’s application, dealt with on submissions, was dismissed by DJ Raeside giving judgement on the 10th of February 2010 on the basis that although the Wife had established some limited non-disclosure, there was no evidence to show that it was material, nor that its disclosure would have led to the making of a different order.

The Wife duly appealed the 2010 Order and permission to appeal was refused. Although the Wife filed a notice of application seeking an oral renewal of her application for permission to appeal pursuant to CPR rule 52.3(4) that application was not pursued.

On the 28th of November 2011, three months after the Court of Appeal had reinstated the 2009 order in respect of periodical payments, the Wife applied to set aside the reinstated 2009 Order on the basis of material non-disclosure.  The matter came before (the by now) Her Honour Judge Raeside (“HHJ Raeside”) on the 17th of April 2013.  On the 10th of July 2013, HHJ Raeside set aside her own 2009 Order.  The Husband appealed and on the 26th of March 2014, the Court of Appeal held that the judge had made an error in law in setting aside the 2009 Order, which was duly re-instated at the second Court of Appeal hearing for a second time.  The Wife’s application for permission to appeal to the Supreme Court was once again refused.

On the 27th of May 2014, the Wife made a further application to set aside the Consent Order of 2005[8] on the grounds of alleged capital non-disclosure.  On the 13th of March 2015 (“the 2015 Order”) the Wife’s application was dismissed by HHJ Raeside who held that the capital non-disclosure issue had been presented on the same basis when the identical application was heard by her and struck out on the 10th of February 2010.

On the 28th of July 2016, nearly four months out of time, the Wife applied for permission to appeal the 2015 Order.  The matter duly came before the Appeal Court on the 19th of January 2017 (for a third time), nearly 12 years after the making of the 2005 Consent Order.

From the above, it will be noted that the Wife’s case faced the dual hurdle of:

  1. Her further application to set aside the Consent Order of 2005 on the grounds of alleged capital disclosure being dismissed by the 2015 Order and
  2. Her application for permission to appeal the 2015, being 4 months out of time and nearly 12 years after the making of the 2005 Consent Order.

In relation to the issue of non-disclosure, although it was conceded by those representing the Wife that it was accepted that the Wife had had the necessary material which would have allowed her to make out her case of material non-disclosure at the 2010 hearing, she should nevertheless be allowed to reopen the 2005 Consent Order as she now had a “better appreciation”[9] of that material and wished to present the material in a different (and by implication better) way.  At the outset, it will therefore be noted in respect of non-disclosure, this case differed on the facts from the cases of Sharland v Sharland[10] and Gohill v Gohill (No2).[11]

The Court in its analysis[12] dealt with the case under two separate but overlapping lines of argument put forward by the Wife, namely (i) the procedural FPR rule 4.1(6) point[13] and (ii) the Henderson[14] argument and whether the issue of res judicata applied, as referred to in HHJ Raeside’s 2015 judgement.  The Court[15] accepted the submissions on behalf of the Respondent Husband that given that there is no power for a court to set aside an order refusing to set aside an order[16], an application to set aside the 2009 or 2005 Order could only be achieved by:

  1. An appeal 11 years out of time in respect of the 2005 Order and withdrawn in respect of the 2010; or
  2. An application to set aside under FPR r 4.1(6) which should be considered be reference to the guidance in Tibbles.
  3. The Court of appeal refused permission to appeal in respect both lines of argument.  The Court considered the legislation and case-law in respect of consent orders and the issue of setting aside or appealing.

The Court’s conclusions in respect of the FPR r 4.1(6) point which it considered with section 31F(6) of the Matrimonial and Family Proceedings Act 1984

(“MFPA”)[17] are to be found at paragraphs 55 – 68 of the judgement.  The Court concluded, as indicated above, that FPR r 4.1(6) had to be considered in relation to the Tibbles[18] criteria.

The Court’s application to the Henderson principles to the present case can be found at paragraph 69 – 85 of the judgement.  The Court concluded that this was a Henderson case[19], that the “change” in the law in Sharland was of no assistance to the Wife and without it, there was no basis upon which to succeed in any application to set aside any of the orders with which the Court was concerned.[20]

As the Court pointed out, since the 3rd of October 2016 the issue of whether to proceed by way of setting aside or appeal has to be considered now, in light of  rule 9.9A supplemented by the para 13 PD9A for setting aside and para 4.1B to PD30A for appeals (“the new rules”)[21].

However given that this case predated the commencement of the new rules[22], the Court had to consider the law before the commencement of the new rules and deal with the “procedural quagmire” referred to by Sir James  Mumby P in

the case of CS v ACS [2015] EWHC 1005 (Fam)[23] .  The main issue in the CS case was whether it was open to the Wife to proceed by way of FPR rule 4.1(6) to set aside the consent order, or given the wording of the final paragraph of PD30A, para 14.1 and in particular the phrase, “an appeal is the only way in which a consent order can be challenged” whether her only remedy was to appeal.  It was pointed out by Mumby P that “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”[24].

In the CS case, Mumby P raised the issue as to whether the wording of the final paragraph of PD30A was ultra vires, which he found it was[25] and that the Wife was entitled to proceed as she had by way of FPR r4.1(6) and did not require the Court’s permission to do so.

It is interesting to note that in the CS case judgment was handed down on the 16th of April 2015 and at that time, the Supreme Court appeals of Sharland and Gohill had yet to be heard.  This point was made by Mumby P at para 30 of the CS case as follows:  “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 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”.  Furthermore, as Mumby J pointed out, at that time the whole issue was  being considered by a Working Party of the Family Procedure Rule Committee.

Both the Sharland and Gohil judgements were delivered by the Supreme Court on the 14th of October 2015.  It is noteworthy that the “procedural quagmire”[26] issue did not arise directly in Sharland but did in Gohil.

In Sharland, the consent order had not been sealed.  As Lady Hale DP pointed out, the fact that the order had not yet been perfected makes no difference and the principles applicable in this sort of case are the same whether or not the order agreed upon by the parties and the court had been sealed[27].  However,

Lady Hale continued that “the fact that the order had not been sealed means that in this particular case the procedural problem about how such challenges to the final order of a court in family proceedings can be brought does not arise. The trial judge was able to revisit his order:  see Re L-B (children)(care proceedings: power to revisit judgment)[2013] UKSC 8, [2013] 2 All ER 294, [2013] 1 WLR 634[28]Lady Hale went on to point out (obiter) that this and other procedural issues do however arise in the case of Gohil, she referred to the case L and Mumby P’s comments in respect of “ procedural quagmire problem” [29] and Mumby P’s comments and survey of “extensive jurisprudence” in the case of CS.[30]

In conclusion, Lady Hale indicated that it was clear that in cases where procedural issues do arise, an application can either be made by way of an appeal or by way of an application to a first instance judge[31] but that difficult issues remained as to how such an application should be made and referred to the fact that a Working Party at that time was considering the whole issue and that she endorsed the observations of Lord Wilson in para 18 of his judgment in Gohil v Gohil.

In the case of Gohil the consent order had been sealed. The Supreme Court had no difficulty in upholding Moylan J’s decision that given the 2004 order had been obtained by material non-disclosure, it should be set aside notwithstanding the reliance in part on the inadmissible evidence obtained under the 2003 Act[32].  Lord Wilson at para 18 indicated that there was no issue about the jurisdiction of Moylan J to set aside the 2005 Order, noted that the Family Procedure Rule Committee (“the committee”) was at the time considering the issue of setting aside of financial orders and sought to set out helpful observations, which as indicated above, were endorsed by Lady Hale in Sharland.

It is to be hoped that given the introduction of the new rules as from the 3rd of October 2016 following the recommendations of the committee, the “procedural

quagmire” has become easier to navigate in respect of consent orders and the issues relating to setting aside and/or appealing. However, as this case illustrates, practitioners will need to have a very clear view of the relevant legislation and case law.

In summary, when confronted by whether to proceed by way of setting aside or appeal (whether in the case of non-disclosure or otherwise) regarding consent orders, procedurally two main questions need to be considered, namely:

  1. Whether the new rules or old procedural rules apply; and
  2. Whether the consent is sealed or unsealed.
  3. Furthermore, as Lady Justice King points out at para 55 of her judgement, the gap between the Family Proceedings Rules 2010 and the Civil Procedure Rules 1998 in respect of the issue of setting aside, is now an extremely narrow one, given that FPR rule 4.1(6) and CPR rule 3.1 (7) are mirror images[33] of each other and the (continued) application of the Tibbles and Henderson criteria[34].

 

[1]  FPR rule 9.9A (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.

[2] Amended by section 4 of the Family Procedure (Amendment No 2) Rules 2016, and para 13 to PD9A consists of para’s 13.1 – 13.9. Para 13.5 to PD9A indicates that an application to set aside a financial remedy order should only be made when no error of the court is alleged.  If an error of court is alleged, an application for permission to appeal under Part 30 should be considered. The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges. The grounds include (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made.  Para 13.8 of PD9A indicates that the starting point of applications under rule 9.9A is that the order was properly made, a mere allegation is not sufficient and only once the ground for setting aside the order has been established can the court  set aside the order and rehear the original application for a financial remedy.
[3] 4.1B of PD30A specifies: “ The Court should not ordinarily grant permission to appeal where the matters complained of would be better dealt with on an application to set aside a financial remedy order under rule 9.9A. Such an application would be appropriate if the proposed appeal does not in fact allege an error of the court on the materials that were before the court at the time the order was made.  However, by way of exception, permission to appeal may still be given where (i) a litigant alleges both that the court erred on the materials before it and that a ground for setting aside under rule 9.9A exists; or (ii) the order which it is sought to set aside includes a pension sharing order or pension compensation sharing order and the court may be asked to consider making orders under s 40A(5) or 40B(2)(b) of the Matrimonial Causes Act 1973”.
[4] Norman v Norman [2017] EWCA Civ 120, paragraph 5, page 2 of the judgement.
[5] Section 28(1A) of the Matrimonial Causes Act 1974 which reads as follows:  “Where a periodical payments or secured periodical payments order in favour of a party to a marriage is made on or after the grant of a decree of divorce or nullity of marriage, the court may direct that that party shall not be entitled to apply under section 31 below for the extension of the term specified in the order”, ie a “Section 28(1A) bar”. 
[6] From 24th December 2009 to 1st of April 2012
[7] Norman ibid, paragraph 15, page 3.

 

[8] However, it was argued on behalf of the Wife on appeal that although the formal written application related to the 2005 order alone, a late application was made in counsel’s written submissions to set aside the 2010 order which was not recorded as having been adjudicated upon and that the judge was not asked to deal with it subsequently – para 33, page 6 of Norman case ibid.
[9] Paragraph 20, page 4 of the judgement, ibid.
[10] [2015] UKSC 60.
[11] [2015] UKSC 61.
[12] From paragraph 41, page 8 to 17 of the judgement, ibid.
[13] FPR rule 4.1(6) specifying that:  A power of the Court under these rules to make an order includes a power to vary or revoke the order.
[14] Henderson v Henderson  [1843] 3 Hare 100, referred to at para 26 of the judgement ibid and refers to the judgement of Wigram V-C at pp 114-116 as follows: “where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward ...but which was not brought forward, only because they have from negligence, inadvertence, or even accident, omitted part of their case. The plea res adjudicate applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”.  
[15] See para 60 of the judgement, ibid.
[16] Para 45 read with 60 of the judgment, ibid, refers.
[17] s31F(6)  provides that:  “The family court has to vary, suspend, rescind or revive any order made by it, including-
  • power to rescind an order and re-list the application on which it was made,
  • power to replace an order for any reason it appears to be invalid by another which the court has power to make, and
    power to very an order with effect from when it was originally made”.[1] Para 82, page 16 of the judgement ibid.[1] Para 47-50 , pp 9 -10 of the judgement, ibid.
    [18] Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 4 All ER 259, [2012] 1 WLR 2591, referred to at para 51 read with para 54 of the judgement of Norman as follows: “ (In that case) The Court held that 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 required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there has been a material change of circumstances since the order was made; or (ii) where the facts on which the original decision was made were (innocently or otherwise) misstated; or (iii) where there has been a manifest mistake the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly”.

 

[19] Para 82, page 16 of the judgement ibid.
[20] Para 84, page 17 of the judgement, ibid.
[21] Para 47-50 , pp 9 -10 of the judgement, ibid.
[22] para 50 of the judgment, ibid.
[23] CS v ACS and another [2015] EWHC 1005 (Fam) and at para’s 4 -6, in which he refers to his judgment in an earlier case of  L v L  [2006] EWHC 956 (Fam), {2008] 1 FLR  26, para 39 Which concerned a sealed consent order and the Wife applying for the order to be set aside on the basis of lack of full and frank disclosure.
[24] Para 3, of  the judgement ibid.
[25] See para’s 35 and 36 of the judgement, ibid.
[26] Referred to by Mumby P in the CS case see above
[27] Para 37, judgement, ibid.
[28] Para 38, judgement, ibid.
[29] Para 38, judgement, ibid, indicating that in the case of Gohil there are 3 possible routes to overcoming the procedural problem, namely (i) a fresh action to aside the order, (ii) an appeal against the order or (iii) an application to a judge at first instance in the matrimonial proceedings.  The difference is that permission is required for an appeal, and that it may be required long after the time for appealing has expired, whereas th other two routes do not require permission.  A further difference is that an appeal is not the most suitable vehicle for hearing evidence and resolving the factual issues which will often, although not invariably, arise on an application to set aside.
[30] See para’s 38 – 42 judgement ibid.
[31] Para 42, judgement, ibid.
[32] Para 61, judgement, ibid.
[33] Both FPR r 4.1(6) and CPR r 3.1(7) reading as follows: “A power of the court under these rules includes a power to vary or revoke the order”.
[34] Both of which are civil cases.