Maughan v Wilmot (Rev 1)

An order remains binding unless set aside or varied, even where its jurisdictional basis is disputed. The power to set aside is discretionary and is exercised according to elementary principles of justice. Delay, acquiescence, submission to jurisdiction and unconscionable conduct may justify refusing relief. In family proceedings, FPR 6.1 permits the court, for good reason, to disapply the ordinary rules governing service abroad and authorise service by email. The purpose of service is to bring the proceedings to the defendant’s attention. The existence of the Hague Service Convention does not create an absolute bar to alternative service, although the court should consider why the Convention route is impracticable.

The husband sought to set aside a final child-maintenance order made on 27 February 2013 and all subsequent orders. The original order provided that documents could be served on him by email. He argued, for the first time more than two years later, that service by email while he was in Turkey was impermissible because Turkey was a party to the Hague Service Convention.

The application raised two issues: whether the court should exercise its discretionary power to set aside the orders, and whether the original order authorising email service was legally invalid.

1. Application dismissed. The order of 27 February 2013 and the subsequent orders remained effective.
2. An order is binding until set aside or varied, even where there is doubt about the jurisdiction of the court that made it. Under FPR 4.1(6) and section 31F(6) of the Matrimonial and Family Proceedings Act 1984, the court has a discretionary power to vary, revoke, suspend or rescind its orders.
3. The discretion is governed by elementary principles of justice. Prompt and consistent objection to an order may favour setting it aside. Conversely, delay, acquiescence, acceptance of the court’s jurisdiction and unconscionable conduct make relief unlikely. The husband had waited over two years, had participated extensively in the litigation and had himself used email as his preferred means of communication. He had therefore forfeited the right to challenge the validity of the orders on this ground.
4. In any event, the challenge to email service failed. The purpose of service is to inform the defendant of the contents of the claim and the nature of the case. The modern use of portable electronic devices means that receipt of an email cannot necessarily be assigned to one foreign location.
5. FPR 6.1 applies to service both within and outside the jurisdiction. Its paragraph (b) permits the court to disapply Chapter IV of Part 6 and authorise email service abroad where there is good reason. The Hague Service Convention requires consideration, but does not impose an absolute prohibition on alternative service. Delay or inability to identify the defendant’s location may constitute good reasons.
6. The judge further held that the husband had voluntarily accepted delivery within Article 5 of the Hague Service Convention. There was no sufficient evidence that Turkish law prohibited service by email or post.

The judgment records that the husband had previously sought permission to appeal the original order, but permission was refused by Lloyd LJ on 25 July 2013. This judgment determined the later application to set aside the original order and subsequent orders.