MAP v RAP

A consent order may be invalid where a party lacked capacity to enter the compromise, even if the other party and the court were unaware of that incapacity. A challenge based on withdrawal of consent or incapacity concerns the validity of the order and may be brought under Family Procedure Rules 4.1(6), rather than by appeal under Practice Direction 30A. Actual consent must exist when the order is made. General unfairness alone is not a valid basis for challenging a consent order.

The applicant sought permission to appeal out of time from a financial consent order made by a district judge. She alleged that she lacked capacity when the compromise was formed and when the order was made, that consent had been withdrawn, and that the order had been made without the court knowing of her psychiatric illness and request for delay. She also alleged duress, non-disclosure, inadequate advice and general unfairness.

The central issues were whether the proposed grounds were arguable and whether the challenge should proceed by appeal or by an application to revoke the order.

1. General unfairness and non-disclosure. The complaint that the agreement was generally unfair was not a valid basis for challenging a consent order. The alleged non-disclosure was too weak to be arguable.
2. Capacity. A compromise entered into by a person who in fact lacks capacity is invalid, even where the lack of capacity was unknown to the opposing party and the court. The reasoning in Dunhill v Burgin was applied by analogy from civil proceedings. The policy of protecting vulnerable litigants supported the same approach in financial remedy proceedings.
3. Capacity standard. Applying the approach in Bailey v Warren, capacity to approve a compromise requires insight into the compromise, an ability to instruct solicitors to advise on it, an understanding of that advice, and an ability to weigh it. The evidence made the issue of capacity strongly arguable and suitable for trial.
4. Procedural route. Family Procedure Rules 4.1(6), which permits an order to be varied or revoked, provided the appropriate route where the challenge was that there had been no true consent, because consent had been withdrawn or because a consenting party lacked capacity. Practice Direction 30A para.14.1 required an appeal for challenges to the substance or continuing validity of a consent order, such as a Barder v Barder challenge or, generally, non-disclosure. It did not prevent an application to revoke an order where the asserted defect was the absence of genuine consent.
5. Actual consent had to exist when the order was made. The wife’s letter requesting delay and alleging duress made withdrawal of consent arguable. Permission was granted on the capacity and withdrawal-of-consent grounds. The notice of appeal was treated as an application to revoke the order under Family Procedure Rules 4.1(6), to be heard at first instance. A further hearing was provisionally listed in case revocation succeeded.

First-instance decision on an application for permission to appeal out of time. The notice of appeal was deemed to be an application to revoke the consent order under Family Procedure Rules 4.1(6).