MA v ROUX

Applications to set aside financial remedy orders under FPR 9.9A are subject to the court’s full case-management powers. The court may strike out or summarily dispose of an application where appropriate, including by considering whether it has a real prospect of success.

The restriction identified in Wyatt v Vince applies to applications for final financial remedies, where the court must consider the statutory matters under section 25 of the Matrimonial Causes Act 1973. It does not prevent summary determination of a set-aside application under the later Rule 9.9A and PD9A. The Court of Appeal’s decision in Roocroft v Ball was distinguishable because it pre-dated those provisions.

The wife appealed from Judge Reardon’s refusal to strike out or otherwise summarily determine the husband’s application to set aside a consent financial remedy order. The husband alleged material non-disclosure concerning money received by the wife from her family after separation.

The first-instance judge considered herself unable to strike out the application because of Wyatt v Vince and Roocroft v Ball. The appeal raised whether the introduction of FPR 9.9A and PD9A, paragraph 13.8, had altered that position and whether a set-aside application could be summarily determined by reference to its prospects of success.

1. Appeal allowed. The court had power to strike out or summarily dispose of an application to set aside a financial remedy order made under FPR 9.9A. The matter was referred back for further consideration.
2. When considering such an application, the court may have regard to all matters in FPR 4.4(1)(a)–(d). It is not subject to the same restriction as applies to an application for a final financial remedy order under Wyatt v Vince. The court may therefore consider whether the set-aside application has a real prospect of success.
3. PD9A, paragraph 13.8 expressly confirms that the court has a full range of case-management powers, including, where appropriate, striking out or summarily disposing of a set-aside application. Those powers may be exercised by reference to the application’s prospects of success.
4. The judge was bound by the Court of Appeal’s interpretation of Wyatt v Vince in Roocroft v Ball. However, the later introduction of FPR 9.9A and PD9A meant that Roocroft could be distinguished in the present context.
5. The husband’s application was not frivolous, hopeless or ill-founded. The court expressed no view on whether the wife had acted dishonestly. Money received after separation may nevertheless be relevant to the parties’ needs and may, where necessary, be taken into account despite its non-matrimonial character.

• High Court (Family Division): appeal from Judge Reardon’s refusal to strike out or summarily determine the husband’s set-aside application allowed.
• Family Court at East London: application to strike out or otherwise dismiss the set-aside application refused on 22 August 2023; reasons given on 23 August 2023.