BF v LE

An application to set aside a financial remedy order is not an alternative to an appeal. Alleged lack of capacity or procedural unfairness caused by absent participation directions will ordinarily concern an alleged error of law and should be raised by appeal.

There is no automatic requirement to quash a decision because participation directions were not made. The court must assess whether there was a serious procedural irregularity, whether the absence of measures caused unfairness or a breach of natural justice, and whether the decision was unjust. The assessment is fact-sensitive, including the issues being tried and the relevance of the alleged vulnerability to the outcome.

The appellant challenged a financial remedy order made after proceedings concerning the parties’ former matrimonial home. She had previously appealed the order, but permission was refused. She later applied to set aside the order, alleging that she lacked capacity and that the court had failed to make participation directions despite allegations of domestic abuse.

A district judge refused the set-aside application. The appellant sought permission to appeal out of time. The central issues were whether the complaints belonged on an appeal rather than a set-aside application, whether the delay should be excused, and whether the alleged absence of capacity or participation directions made the earlier decision unjust.

1. Permission and delay. Permission to appeal was granted because there was a compelling reason to hear issues concerning very late challenges based on capacity and participation directions. The appeal was nevertheless dismissed. Applying the three-stage approach in Denton v White [2014] 1 WLR 3296, the delay of at least 16 months was serious and significant, the reasons given were inadequate, and the fairness of the case did not justify reopening proceedings after the matrimonial home had been sold and the respondent had arranged his financial affairs.
2. Set aside or appeal. A decision allegedly made when a party lacked litigation capacity, or allegedly made in breach of natural justice because participation directions were absent, involves an alleged error of law or procedural irregularity. Such matters should be raised by appeal rather than under the limited set-aside jurisdiction in FPR 9.9A. They were known to the appellant when the earlier appeal was pursued.
3. Capacity. Capacity is decision-specific. Mental disorder, anxiety or stress does not itself establish incapacity. The Mental Capacity Act 2005 creates a presumption of capacity. A later expert report directed to capacity to sign an order on one date did not establish incapacity during an earlier hearing or while giving evidence. The district judge was entitled to conclude that the evidence did not rebut the presumption.
4. Participation directions. FPR Part 3A imposed a proactive duty on the court to consider whether vulnerability was likely to diminish the quality of a party’s or witness’s evidence and whether directions were necessary. The absence of a request by a represented or unrepresented party did not remove that duty.
5. Effect of non-compliance. Failure to consider or make participation directions does not automatically invalidate a decision. The court must examine the particular issues, the alleged vulnerability, the effect of the missing measures, and whether the outcome was unjust. Here the domestic-abuse allegations were not issues for determination because conduct had been excluded, and the order for sale was a standard and predictable financial remedy outcome. No breach of natural justice affecting the result was established.

1. District Judge Parry: made the substantive financial remedy orders in September and October 2019.
2. HHJ Rowland: refused permission to appeal against the order on 24 January 2020.
3. District Judge Solomon: refused the later application to set aside on 9 September 2020.
4. High Court (Family Division): granted permission to appeal out of time for a compelling reason but dismissed the appeal.