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Can A Consent Order Be Set Aside In Financial Proceedings?

In the light of TF v PJ [2014] EWHC 1780 (Fam), Francis Wilkinson, barrister of Field Court Chambers, asks whether an application to set aside is permissible where there has been a change of circumstances which undermines the basis of a consent order – and suggests an answer.

Francis Wilkinson, barrister, Field Court Chambers

Francis Wilkinson, barrister, Field Court Chambers

Paragraph 14.1 of Practice Direction 30A of the Family Procedure Rules 2010 seemed to change the way that Barder applications could be made.  Under the previous rules if there was some major event, unforeseen when the consent order was made, then the person seeking to change the (ancillary relief) consent order had two routes available:  they could apply to set aside the original order or they could appeal it.

As there was no criticism of the judge who had made the original order an appeal often did not seem to fit, and as there was no requirement to go to a higher level of judge, the easier and usually the clearly appropriate route was to apply to the same level of judge to set aside the consent order.

With the advent of PD30A in April 2011 the option of applying to set aside seemed to be removed in many cases.  Paragraph 14.1 states:  "Where a Consent Order has been made by a district judge then the only way of challenging it is by appeal."  It is worth noting that a district judge is mentioned, and the same restriction is not placed on the order of a circuit judge.

This restriction in relation to district judges seemed to some people anomalous when it came into force, because it is of the nature of such cases (if the application is well-founded) that the new hearing is dealing with a very different state of affairs from the one the court was considering when the consent order was made.  If the new circumstances can only be dealt with on appeal and permission for the appeal is not granted, a further appeal is statute barred.  That has the effect that the changed facts are considered once only with no possibility of appeal, save by judicial review.

In case this seems a fanciful set of circumstances, I have been involved in a case with just such a sequence of events.

But now, on 10 April this year, comes TF v PJ [2014] EWHC 1780 (Fam), from the 'pen' of Mostyn J.  By applying rule 4.1(6) of the Family Procedure Rules and the Supreme Court's judgment in Re L and B (Children) [2013] UKSC 8 (reported as Re L-B (Reversal of Judgment) [2013] 2 FLR 859) Mr Justice Mostyn revives setting aside a financial order where 'there has been a supervening change of circumstances which destroys the basis on which the previous order was made' [4].

How does he do it?

Re L-B was a care case.  The order had been made but not sealed, and Baroness Hale (with whom the other SCJs agreed) explored the legal history of there being jurisdiction to change any order before it is sealed – "There is jurisdiction to change one's mind up until the order is drawn up and perfected." [19]  Of course there has to be some rational basis for the change, just as there has to be a rational basis for any judgment or order: "A carefully considered change of mind can be sufficient" [27].

Baroness Hale goes on, however, to consider the case if the order had been sealed.  This part of the judgment, from [32] to [45], is obiter.  In this part of the judgment:

a. The principle is accepted that if proceedings continue after a fact-finding hearing and further facts are apparent, then the judge can change the fact-finding conclusions (following Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17).

b. FPR rule 4.1(6) provides the power for judges to vary case management orders, whether or not they are sealed [37], as long as it is done 'judicially and not capriciously' [38].  That rule simply says that "A power of a court under these rules to make an order includes a power to vary or revoke the order."

c. She says that "In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family." [41]

d. Reasons for and against a judge changing an order in children proceedings are set out [40]-[44].

e. And this section of the judgment concludes with the words "The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it" [45].

In TF v PJ Mostyn J draws some bold conclusions from these cautious remarks by the Supreme Court.  He says:

a. "Although the rule refers to the court having the power to vary or revoke an order made under the rules, the power is not confined only to procedural or case management orders made under the rules." [20] 

b. "[The rule] applies whether in the civil sphere or in the family sphere and, within the family sphere, whether in children proceedings or financial remedy proceedings it applies to final orders." [20]

c. He prays in aid what Thorpe LJ said in Karim v Musa [2012] EWCA Civ 1332, where that judge acknowledged that what he was saying was his side of a 'long standing divergence of opinion' between himself and Ward LJ.  Thorpe LJ there said "In the meantime it is perfectly open to the applicant who seeks to establish a case of non-disclosure to go either by way of appeal to this court or by application to the first instance court, depending on the circumstances of each and every case." [15]

d. He addresses Baroness Hale's comment that 'children cases may be different', concluding that she was not intending to confine her comments to care cases like the one before her, nor indeed to proceedings involving children [22].

Are we to conclude that in Barder cases, where there has been a change of circumstances which undermines the basis of a consent order, an application to set aside is permissible?  Provisionally it is suggested that:

a. Where the judge who made the consent order was a circuit or High Court judge, the answer is 'yes'.

b Where the original order was made by a district judge the answer is 'maybe'.