Wilmot v Maughan

An application to vary or revoke an earlier order must be made promptly. Finality, the avoidance of two bites and respect for appeal routes constrain the jurisdiction. In an ordinary case, variation or revocation is generally confined to a material change of circumstances, misstated facts or a manifest mistake in formulating the order. Arguments known or knowable when the order was made will rarely justify reopening it. The court also held, in alternative reasoning, that the Family Procedure Rules 2010 permit alternative service out of the jurisdiction. Rules 6.43 and 6.45 are permissive, but an order must not require conduct contrary to the law of the country of service.

The parties’ financial remedy proceedings followed their divorce and a 2007 consent order. The wife later pursued enforcement proceedings. The husband, who claimed to live and work abroad, challenged orders made from 2013 onwards which permitted service by email and other methods.

Mostyn J dismissed the husband’s deemed application to set aside the orders, reported at [2016] 1 WLR 2200. The husband appealed, arguing that the delayed challenge should have been allowed and that email service was invalid because the Hague Convention on the Service of Judicial and Extrajudicial Documents 1965 provided a mandatory and exclusive procedure. The central issues were the exercise of the power to vary or revoke earlier orders and the effect of the service rules and Convention.

The Court of Appeal unanimously dismissed the appeal.

1. Variation or revocation. Assuming, without deciding, that the first-instance judge had power under rule 4.1(6) of the Family Procedure Rules 2010 and section 31F(6) of the Matrimonial and Family Proceedings Act 1984 to vary or revoke the earlier orders, the application had to be made promptly. Finality, the avoidance of two bites at the cherry and the need not to undermine the appeal process were important considerations. The principles in Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2014] 1 WLR 795, Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Thevarajah v Riordan [2016] 1 WLR 76 applied.
2. The husband’s challenge was plainly too late. There had been no material change of circumstances, misstated facts or manifest mistake in the orders. His case raised legal arguments which were known or knowable earlier. His previous protests did not justify delay, particularly when he had been represented, had notice of applications, or had opportunities to appeal. The orders had also provided alternative methods of service, including service at United Kingdom addresses.
3. Service under the FPR. In alternative reasoning, rule 6.1(b) of the Family Procedure Rules 2010 gave the court power to direct otherwise and to order alternative service, including out of the jurisdiction. Rules 6.43 and 6.45 used permissive language and were not a mandatory and exclusive code. The restriction was that an order could not require conduct contrary to the law of the country where service was to occur.
4. The Hague Convention remained the primary route where a document had to be transmitted abroad for service. The court should first decide whether service was in fact out of the jurisdiction. Alternative service could nevertheless be justified in suitable circumstances, including urgency or facts specific to the defendant. The court did not decide the full effect of the Convention on email service, because that was unnecessary to dispose of the appeal.

1. Court of Appeal (Civil Division) The appeal from Mostyn J’s order was dismissed unanimously.
2. Family Division, Mostyn J The husband’s deemed application to set aside orders made since 2010 was dismissed. The decision is reported at [2016] 1 WLR 2200 and [2016] 2 FLR 1349.