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«| enquiries | +44 (0)203 178 5668 BREAKING AND SETTING ASIDE FAMILY COURT CONSENT ORDERS Public Policy There is a public ...»

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Public Policy

There is a public policy in all litigation, but especially in family law litigation, about finality, conclusion

and certainty. Judges constantly testify to the importance of parties knowing that there is an end to the

dispute and to the litigation.

Lord Wilberforce in Ampthill Peerage case (1976) 2 WLR 777:

“It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question. How otherwise could a man's life be planned?

This policy has been in statutory form for over a century; This principle of finality of determination is, of course, but one strand in a more general fabric. English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods.

Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.

The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents

further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so:

these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally

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But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.”

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In addition, the whole direction of the conduct of family law dispute resolution over the past 25 years has been to encourage settlements, agreements and a conciliatory approach. This was the SFLA/resolution Code of Conduct in the early 1970s which still applies today and with even greater force. It is now embodied in the Law Society Family Law Protocol.

It is only rare and exceptional cases which require a final hearing. Cases might be exceptional because of the facts, because of conflicts of evidence, because of the disputed area of law; only exceptional cases like these that should reach that final stage. Too many cases go to a final hearing or close to a final hearing when they should be settled.

Family law directly encourages settlement by allowing for/providing for the making of consent orders.

The vast majority of financial disputes on relationship breakdown are settled by consent orders.

Therefore lawyers need good knowledge about making consent orders. See the separate notes on the law, practice and procedure of making a consent order.

However the very public policy which encourages finality also discourages appeals and applications to set aside. This is especially on issues of consent orders. Nevertheless, there are genuine cases, exceptional cases, where the consent order is no longer fair and just. It is necessary for another order to be made which is fair and just. Public policy has made the obtaining of this new order hard, procedurally complex, urgent and precise. It is only in these narrow circumstances that public policy will allow any review of the finality of litigation. These notes set out the procedure and law on the breaking of a consent order.

An example was T v M (2013) EWHC 1585 in which only four months after a final order, admittedly after a contested hearing rather than a consent order, and after the wife had given oral evidence on three of the four days of the hearing, the husband applied to vary the maintenance order. The appeal was dismissed by Coleridge J who endorsed the comment of Bennett J in the case of Rose v Rose (2003) EWHC 505 (Fam): " …it is absolutely essential in ancillary relief cases that the court should be able to put a stop to applications seeking to reopen matters already decided by a court, whether by consent or after a contested hearing, if the court is satisfied that no useful purpose will be served by reopening the matter."

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Strictly, there cannot be an appeal as there are no decided issues of fact or law or merits. It is therefore necessary to attack the basis of the order itself. This is often in one of several categories, which can overlap

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Having said that strictly there can be no appeal, in practice:

 for events arising after the consent order was made, apply for leave to appeal out of time using normal appeal methods and procedures  for events arising at or before the time of the original consent order including going to the basis of the circumstances at the time of the original consent order, apply to set aside the original order, including applying to the same court as made the original order.

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For the procedure, take care to differentiate between appeals and applications to set aside. Be very quick in making the application after receiving instructions. Consider the case law carefully as there are conflicting judicial opinions on appropriate procedure and see below. As a matter of practice, applications under Barder should be listed before a judge, and not a district judge.

Many solicitors rarely find themselves appealing court orders. It is therefore invariable good and wise practice to look up the relevant procedure each time and work closely with the specialist bar, which is much more frequently involved in appeals including aspects of procedure. Moreover there is a perception that the procedures for appeal change not infrequently and are also very technical.

New provisions and procedures in respect of appeals are now set out in Rule 30 Family Procedure Rules 2010 and PD 30A. See guidance by Mostyn J in NLW v ARC (2012) EWHC 55.

If the time for appealing has expired, the permission of the court is required for the appeal to set aside the consent order to proceed out of time. The application for a rehearing is also restricted by a time limit so the permission of the court to extend time will be required if the application is to proceed. Great care, caution and diligence, as well as some speed, is required.

In practice, applications to set aside or to appeal a consent order arise in issues of non-disclosure, supervening events, change in value of assets and death. These are considered under separate headings.

Non-Disclosure In the making of consent orders, it is a difficult balance knowing when to stop investigating disclosure and when to settle. Nevertheless, there are cases where it is clear that one party has not given proper disclosure, but on which the other has reasonably relied in settling. In such circumstances, is it appropriate that the consent order should be set aside? What sort of non-disclosure should give rise to setting aside?

The original authority is Jenkins v Livesey (1985) AC 424 HOL. The wife failed to disclose, even to her own lawyers, an intention to marry. The court set aside the consent order. See also Robinson v Robinson (Disclosure) (1983) FLR 102. In passing, it might now be that the issue of intention to remarry may not be so crucial and see below.

In Vickary (1992) 2 FLR 271 the husband disclosed assets of £430,000 and did not mention negotiation to sell shares which sold for £2.8 million. Order set aside.

See Thompson (1991) 2 FLR 530, below.

In Rose (2003) 2 FLR 197, a case settled at FDR stage. There was possible evidence of the wife's continuing affair and purchase of a property with her boyfriend which the husband used as an attempt to set aside the FDR agreement and consent order. The court held that he should have raised it at the FDR and in any event it was unlikely to change the outcome. The Court of Appeal stated that not every non-disclosure will allow a set aside. Only if it will make a “substantial difference” to the order actually made that a case for setting aside can be made.

This was the rationale for the surprising decision in Sharland (2014) EWCA 95. There was a consent order but it became quickly obvious that the husband had not given full disclosure and indeed had made fraudulent misrepresentation of his financial circumstances. It was for a substantial amount of assets. Nevertheless whilst strongly condemning the husband and by a 2 - 1 majority the Court of Appeal did not set aside the consent order as they held that the award to the wife with the new disclosure would not have been substantially different had the court been aware of the facts. It is understood the case may be going to the Court of Appeal

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The hurdle is “substantial difference” and not just any difference. This is a patent policy decision by the family courts to discourage applications to set aside for relatively minor nondisclosure. Nevertheless it is very harsh when the nondisclosure has clearly been so intentional and deliberate. As stated at the outset, public policy is against applications to set aside. There is an imperative for finality and the parties in knowing of finality. There is certainly a risk on costs.

However the courts have also stated that there is a difficulty because it is not possible to vary a lump sum order or have a second lump sum, other than on variation of maintenance.

It is also necessary to make the application quickly and soon after the consent order or discovery of the nondisclosure. In the case of Rose, a delay of one year in making the application was “wholly unreasonable” In Mahon (2008) EWCA 901, the husband appealed an order providing the wife with £9m from a disclosed asset base of £10.5m. The parties, who were South African, were married for 23 years during which children of 22, 19 and 12 had been born. The husband, who was said to have behaved less than well during the proceedings, breaching orders for maintenance pending suit, moving assets belonging to the wife out to South Africa and cashing in policies, had moved back to South Africa where he lived with his new partner. The Court of Appeal held that the Judge had been entitled to infer that the husband had substantial hidden assets. There was no proposition of law that the court must attempt to quantify undisclosed or hidden assets or even be satisfied that assets exist which directly relate to the award made. Were it to be otherwise, “the less which a husband disclosed, and thus the more blank the page upon which the judge was expected to write his judgment, the less….would the judge be entitled to draw adverse inferences” (23).

Behzadi (2008) EWCA 1070 involved Iranian nationals who had lived in England since their marriage in

1975. Whilst the matrimonial home and investment property were located in this jurisdiction, the wife also owned properties in Iran, some of which were inherited and which she purported to transfer to the three children of the marriage although the court held that they were in fact still owned by the wife. She failed to comply with interlocutory orders and failed to disclose four properties in Iran, whilst the court found that she may have other property and significant cash resources which had not been disclosed.

At first instance Hedley J awarded the husband 47% of the assets and made a costs order against the wife as a result of her litigation conduct. On appeal, the court held that it was for the wife and not the court to establish that the value of her property in Iran was not realisable. The sharing principle extended to all of the parties’ property, albeit less so to non-matrimonial property, and the trial judge’s order was within the range of reasonable discretion. If the trial judge had overestimated the value of the wife’s resources (and therefore over-provided for the husband), the wife had only herself to blame.

In I v I (2009) 1 FLR 201, the husband did not disclose on the day of the FDR that he was in negotiations for a new employment nor that he had actually agreed terms or those terms. In his existing employment he was receiving bonuses which were increasing. The case settled. When he came home from the FDR, a contract of employment was waiting for him. He said nothing. He resigned his job 11 days later and within a month started a new job. The wife applied to set aside. It was held that the husband had breached his obligation to provide full and frank disclosure. However the disclosure of the job negotiations were still at an uncertain stage at the time of the FDR and had not made any difference to the terms of the order agreed. The husband was under no duty to disclose the prospect of a significantly larger bonus with his potential new employers unless they had provided him with information as to the actual likely amount of the bonus or he had other specific information. The wife had not established that had the negotiations been disclosed, the FDR would have been adjourned to await the outcome. The vast majority of practising solicitors would almost certainly have expected to be told on the day of the FDR if such a change was in prospect, and would then have adjourned to find out more information. Compare for instance the good practice on disclosure of

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