Roocroft v Ball

The Family Procedure Rules contain no power equivalent to civil summary judgment. The power to strike out a financial remedy application has limited reach and is not engaged merely because the application has no real prospect of success.

A party cannot excuse another party from the continuing duty of full and frank disclosure to the court. Where a consent order is challenged for non-disclosure, the court must determine whether non-disclosure occurred, whether it was deliberate or inadvertent, and whether full disclosure would have produced a substantially different order. Deliberate non-disclosure is presumed material unless the defaulting party proves otherwise. For inadvertent non-disclosure, the applicant bears the burden of proving materiality.

The appellant applied to set aside a consent order made after the dissolution of her civil partnership with the deceased. She alleged that the deceased had materially understated her income and assets. His Honour Judge Barnett dismissed the application at a directions hearing, using his case-management powers because he considered it without merit and doomed to fail.

The appellant challenged both the judge's jurisdiction to dispose of the application summarily and his treatment of material non-disclosure. The central issues were whether the application could properly be dismissed without a fact-finding hearing and whether the judge had applied the correct principles governing disclosure, materiality and the parties' respective burdens of proof.

1. Appeal allowed and application remitted. The judge had in substance given summary judgment, although he described his decision as an exercise of case-management powers. The Family Procedure Rules confer no jurisdiction equivalent to summary judgment under the Civil Procedure Rules. The disposal could not be converted retrospectively into an abbreviated hearing: paras [46]–[48], [72]–[73].

2. The principles in Wyatt v Vince (Nos 1 and 2) [2015] 1 WLR 1228 apply to applications to set aside financial remedy consent orders. Rule 4.4 has limited reach and must be construed without reference to real prospects of success. An application is not an abuse merely because it appears unlikely to succeed. Case-management powers may be used to identify issues and arrange a fair abbreviated hearing, but the parties must receive proper notice and an opportunity to address its scope: paras [44]–[48].

3. Parties owe a continuing duty of full and frank disclosure to each other and the court. That duty applies to negotiations leading to a consent order. A party cannot exonerate the other from it by agreeing to settle despite suspecting incomplete disclosure: paras [51]–[54], [63]–[66].

4. The court must first determine whether non-disclosure occurred and whether it was deliberate or inadvertent. That question will ordinarily require an evaluative assessment of admissible evidence, including oral evidence and cross-examination. An abbreviated determination may be fair where the documentary evidence is effectively unanswerable, but it must still determine non-disclosure and materiality: paras [55]–[60].

5. Deliberate non-disclosure is presumed material. The defaulting party must then prove, on the balance of probabilities, that full disclosure would not have produced a substantially different order. For innocent or inadvertent non-disclosure, the applicant must prove that proper disclosure would have produced a substantially different order: paras [59]–[60].

6. The judge wrongly treated the appellant's knowledge or suspicion that the deceased was wealthy, and her agreement to settle, as effectively fatal. He thereby shifted the burden of investigation to the appellant and failed to determine the fact, extent and nature of the alleged non-disclosure. Mere delay could not justify striking out the application. The case was remitted for directions before a High Court judge: paras [63]–[76].

1. Court of Appeal (Civil Division): The appeal was allowed. The summary dismissal was set aside and the application was remitted for directions before a High Court judge: [2016] EWCA Civ 1009.
2. Family Court at Chester: His Honour Judge Barnett dismissed the appellant's application to set aside the financial remedy consent order and refused permission to appeal.