Abuchian v Khojah

Leave under Part III of the Matrimonial and Family Proceedings Act 1984 should be set aside only where the claim is plainly unmeritorious or the respondent can demonstrate a clear knock-out blow. The leave stage does not require a merits assessment showing that success at trial is more likely than not. Unless it is obvious that the applicant will fail at one or more statutory hurdles, factual and merits issues should ordinarily be left to the substantive hearing. Minor errors, omissions or inaccuracies in the supporting material will not justify setting aside leave unless they materially undermine the grant. Once leave is granted and the statutory hurdles are otherwise met, the court must apply uniform justice without differentiating between applicants by nationality or the foreign origins of their dispute.

The respondent husband applied to set aside leave granted ex parte by Sir Peter Singer on 28 July 2014 under Part III of the Matrimonial and Family Proceedings Act 1984. The wife sought financial relief following the parties’ divorce under Saudi Arabian law. The husband alleged material non-disclosure, misleading submissions, lack of candour and errors concerning the parties’ residence, ownership of a London property and related proceedings. He argued that leave should be set aside finally, without reconsideration at the substantive stage. The central issue was whether those matters amounted to the clear case required to displace the grant of leave.

1. Applicable threshold. The court adopted the guidance in Agbaje v Akinnoye-Agbaje [2010] UKSC 13, and the explanation given in Traversa v Freddi [2011] 2 FLR 272. The statutory filter is intended to exclude plainly unmeritorious claims. It does not require the applicant to show a better than even chance of obtaining substantive relief.
2. Set-aside applications. Under section 13 of the Matrimonial and Family Proceedings Act 1984, a set-aside application should succeed only where the respondent can demonstrate a clear knock-out blow, or where it is obvious that the applicant will fail at one or more of the subsequent statutory hurdles. The court should not conduct a rigorous evaluation of all matters reserved for trial. Where factual issues remain, the application should proceed.
3. Uniform justice. If leave is granted and the hurdles imposed by section 16 are surmounted, the court must apply uniform justice. It is impermissible to apply different standards because the parties are Arab, Saudi, Lebanese or otherwise connected with a foreign jurisdiction.
4. Application to the alleged defaults. The omitted investor-visa application would not have altered the grant of leave. The alleged failure concerning the Baker & McKenzie letter was not remotely a knock-out blow. Minor inaccuracies concerning Sir Paul Coleridge’s comments, the Land Registry proceedings and the husband’s ownership of the property were immaterial to the leave question. The property evidence in any event raised an arguable agency or nominee issue, described as akin to the circumstances in Prest v Petrodel.
5. The five criticisms, individually and collectively, did not approach the required threshold. The application to set aside leave was dismissed.