Setting aside a consent order
MAP v RAP  EWHC 4784 (Fam), Mostyn J (3 December 2013) http://www.bailii.org/ew/cases/EWHC/Fam/2013/4784.html shows how muddled the law can become – as between substantive law, procedure and practice guidance – if judges do not remind themselves where law shades into subsidiary legislation, and subsidiary legislation into guidance and judicial obiter dicta.
In this case the application was to set aside a matrimonial financial consent order. The law is provided for by Senior Courts Act 1981 s 17(1) (see below) as explained by Gohil v Gohil (below; decided since December 2013). FPR 2010 r 4.1(6) has nothing to do with the process; nor does any other subsidiary legislation immediately apply. As will be seen application to set aside is by appeal out of time (s 17(1)); or perhaps, as suggested by the Court of Appeal in Gohil, it may be that a separate application (perhaps under FPR 2010 Part 19) can be issued by the party seeking to set aside.
The background to the case was that, after a marriage of nearly thirty years, a wife claimed that she had consented to a financial order at a time when she lacked capacity to do so. She applied for permission to appeal to set aside the order. Mostyn J found that her appeal as to capacity was arguable and gave permission accordingly. If that appeal succeeded then the order would be set aside. Two areas were of concern to the court: the set aside procedure and capacity in the context of the case. Both points have since been considered by the Court of Appeal and Supreme Court respectively since December 2013.
However the judge made comments on aspects of the law which may be regarded as misleading, and therefore justify review here. He seems to treat Supreme Court authority as the opposite of what it said; and overlooked Court of Appeal (as explained below in relation to Re L-B and Roult).
Law, procedure and guidance
Mostyn J makes no reference to statute law; yet SCA 1981 s 17 provides for ‘applications for a new trial’ (and see commentary in Family Court Practice (the Red Book)) as follows:
17 Applications for new trial.
(1)Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.
(2)As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.
This section governs set aside applications, as Ward J painstakingly explained in B-T v B-T  2 FLR 1, save where – as was the case in 1990 – Matrimonial Causes Rules 1977 made provision for county court appeals. In procedural law terminology a ‘new trial’ is to what the set aside issue is addressed: an applicant wants his/her order set aside so that a fresh trial of the issue originally resolved by the order (whether a consent order, as here; or following a contested hearing) can be arranged. And one of the disposals of an appellate court is to ‘set aside… any order’ or to ‘order a new trial or hearing’ (CPR 1998 r 52.10(2)(a) and (c)). Application to set aside and the related forms of appeal permission applications are explained in Family Court Practice (the Red Book) Part 1 at Procedural Guide E6.
Power to revoke a case management order
FPR 2010 r 4.1(6) under the heading ‘Court’s case management powers’ provides: ‘(6) A power of the court under [FPR 2010] to make an order includes a power to vary or revoke the order’.
The question of whether any jurisdiction under CPR 1998 r 3.1(7) (from which r 4.1(6) is directly derived) disposed of by the Court of Appeal in Roult v North West Strategic Health Authority  EWCA Civ 444. At para  Hughes LJ reviewed the meaning of CPR 1998 r 3.1(7) and whether or not it could be treated as giving the court power to set aside its own order:
 … If [r 3.1(7) could be used to set aside a court’s own order], it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments…. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part.
Especially said Hughes LJ was this so in the case of a settlement reached with the benefit of full and skilled advice. ‘The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’
Lady Hale confirmed this view in the Supreme Court in Re L-B (Reversal of Judgement)  UKSC 8,  2 FLR 859 as follows:
 Both [CPR 1998 and FPR 2010] make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and r 4.1(6) of the FPR. This may be done either on application or of the court’s own motion: CPR r 3.3(1), r 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which required the courts to led to the decisions in In re St Nazaire Company (1879) 12 ChD 88, [where the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judge’s orders]. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.
Notwithstanding that Lady Hale (though not in terms) follows Roult Mostyn J seems to derive a conclusion – ‘a challenge to findings of fact’ – which bears little relation to what she says (though he does not actually cite the passage in Re L-B to which he refers):
 …..Moreover, in the decision of the Supreme Court of Re L-B (A Child)  UKSC 8, FPR 2010 r 4.1(6) was confirmed by Lady Hale as being the procedure by which a challenge to findings of fact would be made. And so it seems to me on that extended definition of the rule this application could quite properly be fought at first instance rather than by way of appeal.
He then goes on to cite a practice direction as ‘standing in the way’ of his perception of a Supreme Court finding (though still without reference to Roult (above) of which he was aware since it is referred to by Gloster LJ in ‘Cart v Cart’ to which he makes reference in para  below):
 … The only obstacle standing in the way of that are the terms of Practice Direction 30A para.14.1 which states:
“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged”.
And it is for this reason that the wife seeks to challenge this order which is described as being by consent by means of an appeal.
The reference to para 14.1 cannot stand in the way of the law; though in fact the final sentence of the paragraph (without citing it) accords with s 17(1).
Mostyn J then holds – to this extent he proceeds according to SCA 1981 s 17(1); though he cites the practice direction as authority for his finding – that an appeal was the correct route for Mrs MAP to follow:
 I am of the view that the appeal route is mandatory in respect of a consent order made by a district judge where there is no real challenge to the validity of the consent order per se. So, for example, if a challenge is being made under the famous case of Barder v Barder, then it seems to me that the Practice Direction fully applies and the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal called Cart v Cart.
Appeal or a separate application
Since MAP v RAP the Court of Appeal have considered the set aside procedure in Gohil v Gohil  EWCA Civ 274 (at paras - and -); but then concluded that in Gohil itself the jurisdictional issue did not directly arise since they refused Mrs Gohil’s appeal. Obiter the court suggested that an applicant may only either (1) seek to set aside on appeal (s 17(1) above; B-T v B-T  2 FLR 1); or (2) apply by fresh action (de Lasala v de Lasala  AC 546; Robinson v Robinson (Disclosure) (1983) 4 FLR 102 perhaps under FPR 2010 Part 19).
In any case, said McFarlane LJ, there must be a staged process (at para ) in relation to non-disclosure applications:
- ‘Gateway evaluation’: a judicial consideration of whether there is evidence to justify hearing a set aside application. The Ladd v Marshall  1 WLR 1489 guidelines (was there credible evidence which could not have been before the court below etc) would provide ‘sensible structure to evaluate any fresh material’.
- The Livesey test: this involves assessment by the court, in the light of such admissible evidence as there is and by the ‘standard and the burden of proof applicable to a finding of fraud’ (1) whether there had been non-disclosure and, if so, whether (2) ‘it had been material to the proceedings that had been previously determined’ (see eg Sharland v Sharland  EWCA Civ 95).
In MAP v RAP the issue on which set aside would be decided was Mrs MAP’s capacity. For that she has permission to appeal – that is, in effect, permission to seek to set aside the order. The subject of capacity and its basis for setting aside an order must await another day.
The statutory position is clear: an application proceeds by appeal under SCA 1981 s 17(1) (and see Roult: a set aside application cannot go back to the judge who made the original decision). It may be that application can be made by fresh application.
Post-script: at para  Mostyn J refers to ‘Cart v Cart’ as follows:
 … the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal – called Cart v Cart  EWCA Civ 1006.
That was a case in which I represented the husband appellant; and as Mostyn J correctly says, Gloster LJ refused permission to appeal so the case is authority for nothing. It is true to say that Gloster LJ referred to FPR 2010 r 4.1(6) in the following terms:
 It cannot be said that, in relation to his ground relying upon an alleged Barder event, Mr Cart was not appealing at all, but rather asking the county court to set aside its own order pursuant to FPR 2010 r 4.1(6); and that, accordingly, all that Mr Cart was doing was seeking permission to appeal the refusal to do so by the county court. Not only does Barder itself make it clear that the correct characterisation of the process is an appeal; but also this court has made it clear in Roult v North West Strategic Health Authority [(above)] that, in circumstances where it is alleged that a subsequent unforeseen event has destroyed the assumption on which an order has originally been made, it is not appropriate for the original court to exercise its powers under CPR 3.1(7) (the CPR rule providing that a judgment or order may be set aside).
Lest it be thought that Mr Cart may have suggested that r 4.1(6) applied, I can assure anyone who is remotely interested in this relatively narrow subject: I would not have suggested it to Gloster LJ (she raised it herself). I have studied the point exhaustively over the past three years and I am well aware of what the Court of Appeal had said in Roult.