Norman v Norman

The Family Court’s power under the Family Procedure Rules 2010 to vary or revoke an order is general but bounded. An application to set aside must respect finality, avoid giving litigants two opportunities to advance the same case, and protect the integrity of appeals. It should be made promptly and ordinarily requires a material change since the order, misstated facts, or a manifest judicial mistake. The rule in Henderson v Henderson prevents parties reopening matters which belonged to earlier litigation and could reasonably have been raised then. A change in legal perception is insufficient where the applicant merely seeks to deploy previously available material more effectively. An identical application already finally determined may be struck out as not legally recognisable.

The wife sought permission to appeal against HHJ Raeside’s order of 13 March 2015 dismissing her third application to set aside a 2005 consent order in financial remedy proceedings. Her earlier application, based on alleged non-disclosure, had been struck out in 2010. The wife accepted that the material on which she relied in 2014 had been available during the 2009 and 2010 proceedings, but argued that later authority on fraudulent non-disclosure and the court’s powers to revoke orders justified reopening the matter.

The central issues were whether the application could proceed under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 and rule 4.1(6) of the Family Procedure Rules 2010, and whether the modern law of res judicata permitted a further attempt to set aside the 2005 order.

1. Permission refused. The application was the wife’s third attempt to dislodge the 2005 consent order. It was made after substantial delay, and the material relied upon had already been available and used in earlier proceedings.
2. The power under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 and rule 4.1(6) of the Family Procedure Rules 2010 is general but not unbounded. It must be exercised judicially and consistently with finality, the avoidance of repeated attempts to advance the same case, and the need not to undermine appeals. The post-2016 rule 9.9A provides the specific route for setting aside financial remedy orders, but the present application pre-dated that rule.
3. Applying the criteria in Tibbles v SIG plc [2012] EWCA Civ 518, the power could ordinarily be used only where there had been a material change of circumstances, the facts underlying the original decision had been misstated, or the judge had made a manifest mistake in formulating the order. The application also had to be made promptly. Authorities including Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Thevarajah v Riordan [2015] UKSC 78 supported that approach.
4. The rule in Henderson v Henderson [1843] 3 Hare 100 applied. The wife had no new material or special circumstance. Her proposed change in legal presentation did not concern the issue in the earlier proceedings. The burden discussed in Sharland v Sharland [2015] UKSC 60 would arise only if fresh fraudulent non-disclosure were first established.
5. An application may be struck out under rule 4.4(1) of the Family Procedure Rules 2010 where it is not legally recognisable or constitutes an abuse of process. The repeated application fell within that description. Financial difficulty did not justify a more liberal approach because the wife had been represented by counsel at the earlier contested hearing.

Permission to appeal was refused. The judgment was permitted to be cited notwithstanding that it concerned a refusal of permission.

• Court of Appeal (Civil Division) refused permission to appeal against the order of 13 March 2015.
• Guildford County Court dismissed the wife’s application to set aside the 2005 consent order and made a limited civil restraint order.