CS v ACS & Anor

A final consent order in ancillary relief proceedings is not challengeable only by appeal. The family court’s statutory power to vary, suspend, rescind or revive its orders, together with Family Procedure Rules 2010 rule 4.1(6), permits an application to the first-instance judge where fraud, mistake or material non-disclosure is alleged. The requirement for permission to appeal from a district judge does not make appeal the exclusive route. The final sentence of Practice Direction 30A, paragraph 14.1, which purported to make appeal the only means of challenging a consent order, was ultra vires. A practice direction cannot remove a remedy conferred by statute and rule or recognised by the common law.

The wife applied to set aside part of a 2009 consent ancillary relief order and replace nominal maintenance with substantive maintenance, alleging that the husband had failed to provide full and frank disclosure. The order had been approved by District Judge Peter Greene. The issue before the High Court at a directions hearing was whether the wife could proceed by application to the first-instance court under section 31F(6)(a) of the Matrimonial and Family Proceedings Act 1984 and rule 4.1(6) of the Family Procedure Rules 2010, or whether Practice Direction 30A, paragraph 14.1, required her to appeal with permission. The court also considered whether that practice-direction provision was ultra vires.

1. The application could proceed. The wife was entitled to apply to the first-instance court and did not require permission. Appeal was not the exclusive route for challenging a final consent ancillary relief order.
2. A final consent order may in principle be reviewed where there has been fraud, mistake or material non-disclosure. That principle was supported by L v L [2006] EWHC 956 (Fam), the authorities identified in that judgment, and the higher authority of Jenkins v Livesey [1985] AC 424.
3. Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 gives the family court power to vary, suspend, rescind or revive its orders, including rescinding an order and re-listing the application. Rule 4.1(6) of the Family Procedure Rules 2010 gives an equivalent power. Those powers are general but bounded by finality, the avoidance of two attempts at the same issue and the proper role of an appeal. The guidance in Tibbles v SIG plc [2012] EWCA Civ 518, Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Arif v Zar [2012] EWCA Civ 986 concerned procedural orders and did not establish that family applications relating to final consent orders were barred.
4. The final sentence of Practice Direction 30A, paragraph 14.1, was ultra vires. The power under section 81(1) of the Courts Act 2003 to give directions about practice and procedure could not extend to forbidding recourse to a remedy recognised by the common law and expressly conferred by statute and rule. The practice direction also conflicted with the statute and rule and therefore had to yield. It could be treated as a nullity.
5. The court read Musa v Karim [2012] EWCA Civ 1332, Sharland v Sharland [2014] EWCA Civ 95 and Gohil v Gohil (No 2) [2014] EWCA Civ 274 as confirming the continuing availability of a first-instance application. It distinguished the broader reliance placed on Roult v North West Strategic Health Authority [2009] EWCA Civ 444, which arose in a different personal injury and procedural context.
6. Obiter, the court described clarification of the procedures for reopening financial orders as urgently needed and suggested that primary legislation might be required.

The judgment was a first-instance decision on directions. It records that District Judge Peter Greene approved the consent terms on 27 November 2008 and that the resulting order was dated 28 January 2009. No earlier appellate decision is stated.