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A Second Bite at the Cherry..? Applying for a Rehearing in Family Proceedings

Rodney Noon, solicitor, looks at the scope for bringing a family law case back before the first instance court and asking it to ‘think again’.

Rodney Noon, solicitor, Rodney W Noon & Co

Rodney Noon, Solicitor, Rodney W Noon & Co, Harrogate

With effect from April 2013 public funding will cease to be available to the majority of family litigants and it is generally thought that there will be a large number of parties who will therefore feel compelled to represent themselves. Whilst it is possible that (to the profession's considerable chagrin) the public may get along perfectly well without us, the most likely outcome is that practitioners will face a number of clients seeking help after hearings which have failed to produce the hoped for result. Although (at least in the case of final orders) one's thoughts turn primarily to an appeal this may not be the only, or the best, option.

As we all know, appeals are not always a complete solution. Leaving aside the issue of obtaining permission, the court will interfere only where it is shown that the trial judge has (or magistrates have) gone beyond the generous bounds of discretion afforded to the tribunal which has had the advantage of hearing the evidence first hand. It is not enough that (for example) the circuit judge would possibly have taken a different view from the district judge; can you demonstrate that the trial court misapplied the law or was plainly wrong?

The purpose of this article is to look at the scope which might exist for bringing the case back before the first instance court and asking it to 'think again'. Various approaches may be possible and each has its own attractions and bear traps.

Children Act proceedings
In Children Act proceedings, particularly if the advice is sought by the failed applicant, consideration may be given to simply renewing the application. If the client appears to have a viable case but has presented it to the court in a deficient manner so that the court did not have key pieces of information, then 'do it again and do it right this time' may be the best advice. Section 8 orders are (almost) always open to review as the circumstances and needs of the child change with time.

The basis for renewing the application very soon after a substantive hearing must however be made clear. What information was the court not told about? Why not? What is its significance to the case? These details must be made clear on the face of the application to avoid it it being summarily dismissed under rule 4.4 Family Procedure Rules 2010 on the basis that "the statement of case discloses no reasonable grounds for bringing or defending the application".

In the event of such an order being made without the opportunity for a hearing, under rule 4.3(4), whether through the deficient drafting of the application or pressure of work not allowing sufficient judicial reading time, "a party affected by the order may apply to have it set aside, varied or stayed" under rule 4.3(5)(a) and indeed rule 4.3(5)(b) requires this right to be endorsed on the face of the order. Without such an endorsement the order would be defective.

If the application  relates to s 8 proceedings or special guardianship, care must be taken to comply with the often neglected provisions of rule 12.19 FPR 2010 which, of course, prohibits the filing of statements without leave or the 'shoe horning in' of information which a prescribed form such as the C100 does not call for. The court is entitled to ignore such information on the basis of rule 12.19(3).

Where (ostensibly) the same application is made within days of the first being dismissed there is a clear risk of a judge who views this as vexatious litigation giving serious thought to making an order under s 91(14) prohibiting further applications. Worse still if the renewed application were dismissed as being "totally without merit"; this is one strike on the road towards a civil restraint order. It is unlikely that any client will thank their adviser for helping to hang that particular albatross around their neck. This course of action should therefore only be embarked upon where there is clear, relevant and significant information which the client and (if relevant) CAFCASS had failed to bring to the court's attention at the original hearing.

Financial remedy proceedings
The 'try again' approach is unlikely to assist the client who is complaining (for example) that a financial decision has treated them unfairly or where the application was not theirs in the first place. In these circumstances it may be necessary to consider whether the court will allow an application for a rehearing so that all the important details can be raised with the court.

The court has an old power to call a case back for further consideration before the order has been drawn and sealed. The basis for this is set out in Re Roberts [1887] WN 231 and Re Thomas [1911] Ch 389. The first of these decisions provides that, per Kay J:

"where an order had not been drawn up... the judge had a right, if something was brought to his attention which he had not sufficiently considered, to stay the drawing up of the order and rehear the matter before making a final order".

In Re Thomas Warrington J at p396 states:

"It is everyday practice that until an order is passed and entered, the matter can be brought before the judge and if a mistake has been made it can be put right."

This is essentially a mechanism for putting right clear mistakes and for dealing with the situation where the judge says in effect "well, if I had known that, of course I would never have made such an order." A rather plain example might be where the client, on the day after an order in ancillary relief has been made, says "I thought she might have had a pension from the 20 years she worked for the NHS but it was never referred to".

The facts of Re Roberts and Re Thomas are instructive as to the kinds of situation where a matter can be called back. In the first of these decisions an interpleader application had been dismissed. It was subsequently shown that the applicant "had in fact proved his title to the goods". In the second decision the court had approved the sale of land without being aware that it was a sale at a substantial undervalue. At page 395, Warrington J says:

"It is beyond dispute that, if the matter came before me now on the facts which I now know, nobody would dream of asking me to confirm this conditional contract."

This approach is, obviously, only available during a very small window of time between the end of the hearing and the order being sealed. In most cases the client will come for advice clutching the order or (for perfectly sound reasons) we would have said that we really needed all the papers (including the order) before we could offer any reliable advice. In practice this is of no great significance as from around the middle of the twentieth century there has been scope in the court rules to revisit decisions irrespective of whether the order was sealed or not. The decisions are however significant as part of an overview of what must be shown if a rehearing as opposed to an appeal is sought.

For many years the county court had jurisdiction to rehear matters even though it was accepted that the court decided the case correctly on the partial facts available at the time. This was a small and common sense derogation from s70 County Courts Act 1984 (and earlier comparable provisions) which makes every order final and conclusive between the parties.  The final incarnation of this power was to be found in the County Court Rules 1981 Ord 37 r1 which gave the court the power (not found in the Rules of the Supreme Court) to rehear a matter "where no error of the court at the hearing is alleged". This power was available whether or not the order had been drawn and sealed. The court's powers under Order 37 remained available as a supplement to the Family Proceedings Rules 1991 but were not carried forward into the Family Procedure Rules 2010 as Order 37 is not one of the provisions to be found in Schedule 2 to the Civil Procedure Rules 1998.

Notwithstanding the demise of this provision there is help to be found here as to the nature and height of the threshold which must be cleared under the current rules if the court is to be persuaded to rehear a case. The best and clearest explanation of this is to be found in Peek v Peek [1948] 2 All ER 297 where the test to be applied is defined thus:

"Is the allegation which is made against the decision an allegation that the court went wrong on the materials before it, or is it an allegation that the court went wrong because evidence on a vital matter was concealed from the court?" 

In the former case the only recourse would be an appeal whilst in the latter a rehearing of the issue by the original court was possible. The concept of evidence "concealed" was never limited to deliberate or fraudulent concealment.

The power of the court to grant a rehearing is now to be found in rule 4.1(6) Family Procedure Rules 2010. At first glance the provisions of Part 4 of the Rules do not appear particularly helpful on this issue, headed as they are "General Case Management Powers". It is easy to assume that although "a power of the court under these rules to make an order includes a power to vary or revoke the order" this would be confined to case management and timetabling issues rather than substantive orders. Fortunately, the identical provision in the Civil Procedure Rules (rule 3.1(7)) has already been the subject of detailed judicial consideration and there would seem to be no reason why its counterpart in the Family Procedure Rules should not be applied in an identical way.

Considering rule 3.1(7) CPR 1998  in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) Patten J. held at para 7 as follows:

"This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ."

The approach taken by Patten J has since been approved by the Court of Appeal in Collier v Williams and others [2006] EWCA Civ 20 where at paragraph 40 Dyson LJ giving the judgment of the whole court says:

"We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7)."

The effect of Dyson LJ's decision would appear to demarcate the limits of the court's power to allow a decision to be reviewed without an appeal. Later in his decision however Dyson LJ returns to the issue at paragraph 120 where he says:

"In short therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion."

This raises the issue of whether the court can grant a rehearing, not because of evidence omitted at the first hearing, but because of submissions which could have been made on that evidence but which the client in person was not in a position to make.

This possibility was considered by Buxton LJ in Edwards v Golding & Others [2007] EWCA Civ 416 where at para 24 he explains:

"The basis of that jurisprudence is that the jurisdiction under order 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal. As was pointed out in the course of argument, it would be very striking if, taking the words of Patten J literally, new facts could lead to rule 3.1(7) being applied, but that did not apply to a case such as the present, where not new facts but a completely new understanding of the nature of the Master's order was before the judge."

In summary therefore, consideration should always be given to seeking a rehearing when practitioners are consulted by a dissatisfied former litigant in person. Before the court can allow such an application there is an evidential threshold to clear showing that there was some significant factual evidence not made available to the court at the first hearing and which might have had a substantial effect on the decision which the court had to make. Although the decision of Patten J suggests that the facts must be ones not known or available to the client at the date of the hearing it is likely that (at least where the welfare of children is in issue) the rigour of this may be mitigated in family cases. The significance of the evidence must however be correspondingly high.

Where the facts were known to the court but different submissions could have been made there is real doubt as to whether the threshold will be cleared.

What is equally clear is that the first instance court cannot take on the role of its own appellate court and if practitioners are faced with a client who, on reflection, does not feel that they put their case as well as they might have done, or regrets that they were not represented, for them, the only option will be to seek permission (if required) to appeal.