Profoundly unsatisfactory

Divorce|April 21st 2015

I remember many, many, years ago when I was a young articled clerk (now known as a ‘trainee solicitor’) being asked by my Principal to research how to go about reopening a case. I’m afraid I can’t recall the details, but I do recall that the subject was enormously complex and I got the answer wrong, despite consulting an expert about the matter. As the case CS v ACS & Another demonstrated last week, little has improved over the thirty-odd intervening years.

Procedurally at least the case should have been relatively straightforward. A consent order had been made, setting out an agreed financial/ property settlement. However, nearly four years after the order was made the wife alleged that the husband had failed to make full disclosure of his means, and she therefore applied to the court for one paragraph of the order to be set aside and for a nominal maintenance order in another paragraph to be replaced with an order for ‘substantive’ maintenance.

The difficulties arose because of a “procedural quagmire” relating to how orders may be re-opened, including the possibilities of the original order being set aside, the order being appealed and an application being made to the original judge.

However, here the husband argued that the wife was not allowed to proceed as she had and that her only remedy was to appeal. This may seem an academic distinction, but the practical importance was that the wife would require the court’s permission to appeal, whereas permission was not required to pursue an application of the kind that the wife had made.

The matter went before the President of the Family Division, Sir James Munby. Before him there was considerable complex technical argument that ultimately, and to my mind remarkably, turned upon whether a sentence in a paragraph of a practice direction was ultra vires (see the last definition in this post), in other words, whether the makers of the practice direction had the power to include that sentence.

I don’t propose to go into the detail of the argument, but the offending sentence was the second sentence in paragraph 14.1 of Practice Direction 30A, which deals with appeals. The sentence reads: “An appeal is the only way in which a consent order can be challenged.” Obviously, if that were the case then the husband’s argument would succeed. However, it occurred to the President that the sentence might be ultra vires. He therefore invited counsel to make submissions upon the point, which they did. After considering those submissions in detail, the President decided that the sentence was ultra vires. Accordingly, an appeal was not the only route available to the wife, and she was therefore entitled to proceed as she had, without requiring the permission of the court.

The President concluded his judgement by lamenting the fact that, despite judges pointing out the difficulties many years ago, the procedures for reopening first instance orders in financial remedy proceedings had still not been clarified. He said: “It is profoundly unsatisfactory that the courts should still have to take up so much of their time and their litigants’ resources dealing with such matters … Remedial work is now a matter of pressing urgency, unless we are complacently to condemn another generation of litigants to a procedural maze which is a discredit to family justice.

As with, I’m sure, all family lawyers, I agree entirely. To be wasting the court’s precious time with such esoteric arguments in the twenty-first century is a nonsense. It is imperative that rules should be clear and simple, particularly in these times of so many litigants in person. It would also help to make life simpler for trainee solicitors…

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