DP v DP (Rectification of Orders) (Rev 1)

The court has power under FPR r.4.1(6) to rectify orders made under the Family Procedure Rules 2010, including substantive and final orders and orders made pursuant to the inherent jurisdiction. The power should be exercised cautiously, having regard to promptness, finality, material changes, misstatements of fact and manifest mistakes. Rectification is appropriate only where the court could, and probably would, have made the order in its corrected form at the original time. Jurisdiction to enforce a foreign maintenance order is conferred by the Maintenance Regulation, not by procedural rules or practice directions. Local jurisdiction must be established by evidence of the payer’s habitual residence or assets in the enforcing jurisdiction. Bare assertions and speculation are insufficient.

The wife sought to enforce maintenance obligations contained in a French order made in 2010. In 2017, a district judge registered that order under Council Regulation (EC) No. 2201/2003 (BIIA), using form C69. The order concerned maintenance only, which was excluded from BIIA, and should instead have been dealt with under Council Regulation (EC) No. 4/2009 (the Maintenance Regulation).

The wife applied for rectification of the 2017 order so that it would operate as a declaration of enforceability under the Maintenance Regulation. The issue was whether the High Court had power to rectify the order and, if so, whether the district judge could and probably would have made the corrected order in September 2017. That depended principally on whether the husband was habitually resident in England and Wales or had assets there.

1. Power to rectify. Sitting as a judge of the High Court, the court had jurisdiction to rectify the September 2017 order because it had been made under the Family Procedure Rules, in particular Part 34. FPR r.4.1(6) confers a wide power to vary or revoke orders. That power extends to procedural, substantive and final orders, and to orders made under the inherent jurisdiction. It was therefore unnecessary to invoke the inherent jurisdiction.
2. Applicable principles. The power should normally be exercised promptly and with regard to finality and the undesirability of giving litigants two opportunities to advance their case. Rectification may be justified by a material change of circumstances, a material misstatement or omission of fact, or a manifest mistake in formulating the order. The court must be satisfied that it could, and probably would, have made the order in its corrected form when the original order was made.
3. Jurisdiction under the Maintenance Regulation. The French order required a declaration of enforceability under Article 26 of the Maintenance Regulation. The Regulation itself conferred jurisdiction; the Family Procedure Rules and practice directions governed procedure and did not create jurisdiction. The fact that the application had been presented under BIIA did not prevent the district judge from recognising the order under the Maintenance Regulation if the necessary conditions had been established.
4. Evidence of local jurisdiction. The relevant question was whether, in September 2017, the husband was habitually resident in England and Wales or had assets there against which enforcement could proceed. The addresses recorded in the documents did not establish habitual residence. The evidence did not show that money previously held by solicitors remained available in England, that the pension fund was located there, or that the later tenancy existed in September 2017. A tenancy did not itself constitute an enforceable asset, and speculation about a bank account or other assets was insufficient. Adverse inferences also required an evidential foundation.
5. Disposition. Although the procedural error amounted to a manifest mistake, the court could not be satisfied that the district judge would have made the corrected order. Rectification was declined. The wife remained entitled to apply afresh for registration or a declaration of enforceability, but success would depend on proving habitual residence or assets within the jurisdiction.

First-instance decision. No appellate history is stated in the judgment.