3rd March 2017
Application for permission to appeal an order dismissing a previous application to set aside a consent order made in 2005, following a similar refusal in 2010.
Facts:
- The parties were married in 1993, separated in 1998 and the husband filed his divorce petition in 2003. There are two children of the marriage.
- In the 18 years since the parties separated, there has been substantial litigation. A consent order was made in 2005. Since then, there has been two previous appeals to the Court of Appeal relating to the 2005 order and the wife’s variation application in 2009.
- In 2015, HHJ Raeside made an order which dismissed the wife’s application to set aside the 2005 consent order. The application was made on the same basis as the identical application in 2010, which was subsequently struck out on the basis that the non-disclosure found was not material.
- The wife applied for permission to appeal the 2015 order for the following reasons:
- The husband’s non-disclosure amounted to fraud.
- Following Sharland v Sharland [2015] UKSC 60 in 2015, the burden of proof had changed in relation to fraudulent non-disclosure. The 2010 judgment had been unable to account for this.
- This was a material change in circumstances, and therefore the appeal was not blocked by res judicata, under Henderson v Henderson [1843] 3 Hare 100.
- This was indicated by the modern approach in Arnold v National Westminster Bank plc [1991] 2 AC 93, where a challenge on a relevant issue was permitted if not brought forward at the earlier time.
- The wife could not with ‘reasonable diligence’ have put the case in this fashion in 2009. A ‘poor person’ should have the benefit of a more liberal interpretation of the Henderson limitations than a litigant in funds.
- Additionally, section 31F(6) MFPA 1984 and FPR 2010 rule 4.1(6) gave the court an unconstrained power to revoke or vary previous orders.
Held:
- The argument regarding an impecunious litigant was not considered as the wife was represented by counsel at the fully contested hearing in 2010.
- It was noted that applications to set aside financial remedy orders will be governed by rule 9.9A. However, this application was made before the 2010 rules, and was therefore governed by rule 4.1(6).
- There is no unconstrained power for a court to set aside an order refusing to set aside an order. The order could only be set aside by appealing either the 2005 or 2010 orders, or by making an application to set aside the original order under FPR rule 4.1(6) which should be considered by reference to the guidance in Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] 1 WLR 2591.
- An application to set aside pursuant to rule 4.16(6) could only be made following a prompt application where:
- There had been a material change of circumstances since the order was made;
- The facts on which the original decision had been made were misstated;
- There had been a manifest mistake of the part of the judge.
- A change in the law was not a material change in circumstances in this sense, as it did not relate to the issue in the case. As it did not, the wife had no basis on which to challenge the order.
- A change in the law also cannot constitute a ‘special circumstance’ for the purposes of Henderson, or a ‘highly relevant event’ for the purposes of W could only rely on Sharland if it was shown that she should be allowed to rely on material available to her at a previous hearing, but be allowed to deploy it more effectively.
- There was no adequate explanation for the delay, this was the wife’s third bite of the cherry, and the wife’s approach undermined the concept of appeal considering both the delay and that she abandoned her original appeal. Allowing the wife to reopen her case would not have achieved justice between the parties and therefore the appeal was dismissed.
- Permission was given to cite the judgment, despite it being a refusal of permission to appeal, as it established a new principle or otherwise extended the present law.
