Old Case Law to Construe a New Rule
Set aside: a new rule for financial relief proceedings
By David Burrows
It cannot often be that you need a seventy-year old case to construe a brand new statutory provision; but the recent addition of rule 9.9A to the Family Procedure Rules 2010 (application to set aside a financial remedy order) makes such a demand: see Peek v Peek  P 46 (pdf);  2 All ER 578 (PDA Div Ct: Lord Merriman P and Wallington J).
The new rule applies to matrimonial financial relief proceedings with effect from 3 October 2016. Rule 4 of the Family Procedure (Amendment No 2) Rules 2016 (SI 2016/901) has incorporated rule 9.9A into FPR 2010 and regulates applications to set aside orders or judgments in financial relief proceedings. The new rule applies only to financial relief proceedings. Save for divorce etc orders (FPR 2010 r 7.28 provides a procedure for “rescission” of matrimonial and civil partnership decrees absolute), setting aside of other family proceedings orders are not covered. (The set aside jurisdiction was touched upon in this blog, but mostly with caveats about legal professional privilege, in Panama papers: take legal professional privilege and a little iniquity…)
Grounds for set aside of financial relief orders
There is one negative, and somewhat inscrutable, ground for setting aside a financial order: that “no error of the court is alleged” by the applicant: FPR 2010 r 9.9A(2). This term is derived from old divorce proceedings rules (eg rule 36 of the Matrimonial Causes Rules 1947, as explained in a divorce case, Peek v Peek  P 46). The rule construed in Peek v Peek was reproduced in the same terms in rule 2.42 of the Family Proceedings Rules 1991:
Application for re-hearing
2.42—(1) An application for re-hearing of a cause tried by a judge alone (whether in the High Court or a divorce county court) where no error of the court at the hearing is alleged, shall be made to a judge.
Rule 2.42 has been replaced by “rescission” in FPR 2010 r 7.28 which deals with how a divorce etc order “may be set aside (rescission)” (this is the terminology of the heading of the rule though in the rule there is no reference to “set aside”); and the “no error” concept was retained in the now redundant County Court Rules 1981, Ord 37, r 1(1). A ground which is expressed in a negative immediately causes a difficulty, since by definition a ground must be positive and proof of a negative is almost impossible. The concept can be explained by reference Lord Merriman in Peek at 60:
It seems to me that the real point is this (bearing in mind that the question whether error is alleged is a question of substance and not a question of form, as I said earlier in this judgment): 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?
The President is distinguishing between circumstances where the court is said to be “wrong” (in appeal terms: see CPR r 52.11(3)(a), when the complainant’s remedy is an appeal) and “wrong” because the whole picture (eg full information about a child or financial circumstances – or about adultery and desertion, in Peek) was not presented to the court. In the latter instance the “error” is that the court was prevented by one or other party from making a fully informed decision. These comments in Peek were affirmed by Ward J in B-T v B-T (Divorce: Procedure)  2 FLR 1, 18 (as they had been by the Court of Appeal in Peek v Peek  66 TLR (pt II) 503). And so matters rest today as the new rule comes into operation.
The application and costs upon it
The set aside application is made in the “proceedings in which the financial remedy order as made” (FPR 2010 r 9.9A(3)) by the FPR 2010 Part 18 procedure (r 9.9A(4)) which requires an applicant to state the order sought and – “briefly” – reasons for it (FPR 2010 r 18.7(1)). Thus, for example, the applicant will need to set out the reasons for, and background to, the original order and the material change of circumstances now showing that the court was in “error” because of what it was not told (see Peek v Peek (above) per Lord Merriman at 60). We do not yet know whether a practice direction is to be issued to expand r 9.9A(3).
Specific provision is made to exempt financial relief proceedings in the High Court from the requirements that a set aside application can only be on appeal (Senior Courts Act 1981, s 17; FPR r 9.9A(1)(b)(i)); and affirms that the term set aside, and thus this procedure, is intended to apply in the Family Court to orders for rescission under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (FPR r 9.9A(1)(b)(ii)).
As to costs on any r 9.9A application: for the avoidance of doubt, FPR 2010 r 28.3 is amended (a new r 28.3(9)) to affirm that such application is not “financial remedy proceedings” under the FPR 2010 r 28.3 costs rules. Application for costs can therefore be made on a set aside (r 9.9A) application (and see Baker v Rowe  EWCA Civ 1162;  1 FLR 761). If a set aside is ordered, the court may reserve any final order till the re-hearing; but the comments of Lord Neuberger in Gohil v Gohil (No 2)  UKSC 61;  AC 849, para 44; and see DB Family Law, Sharland, Gohil – set aside: Lord Neuberger sums it up as to the onus of establishing materiality may provide a guide as to where the line between an immediate order and costs reserved should be drawn.
Set aside and other family proceedings
Apart from divorce etc and financial relief proceedings (FPR rr 7.28 and 9.9A) no family proceedings orders have specific procedural provision made for applications to set aside. If matters which should have been brought to the court’s attention at the time of the hearing but were not – for example in domestic abuse or children proceedings – application will have to be made to set aside on general principles. This was touched upon by Lady Hale in In Sharland v Sharland  UKSC 60;  AC 871 at paras 40 and 41 and by Lord Wilson in Gohil v Gohil (No 2)  UKSC 61;  AC 849 at para 18. In the High Court this must be by an appeal (Senior Courts Act 1981, s 17; and see Ward J in B-T, above), and probably by appeal also in the Family Court.
It seems likely that the set aside jurisdiction for family proceedings generally, whether made back to the first instance court or on appeal, will operate on the same “no error” principle as in Peek as for financial relief under FPR r 9.9A.
Some may say that in children proceedings application can be made for a variation of an order, rather than an application to set aside. That may be so; but an applicant must bear in mind that if an order and judgment is set aside, it goes. If an order is sought to be varied (as distinct from appealed against), earlier findings stand. Issue estoppel is generally less stringent in children proceedings; but it still applies (In re B (Minors) (Care Proceedings: Issue Estoppel)  Fam 117;  1 FLR 285, Hale J). If an appeal is mounted (in the light of SCA 1981 s 17) application will have to be included to adduce fresh evidence (Ladd v Marshall  1 WLR 1489, (1954) FLR Rep 422); though since the whole basis of the application is that information was not before the first instance court, a Ladd v Marshall application – by definition – will be part of what is claimed.
Barder and the appeal out of time
The jurisdiction in financial relief proceedings for permission to appeal out of time (Barder v Barder (Caluori intervening)  AC 20;  2 FLR 480) remains. This applies where events have occurred since the making of the order which may invalidate the order, or a fundamental assumption, upon which it was made. Application is to the appropriate appeal court by notice of appeal seeking permission to appeal. The difference between the two jurisdictions is in the “no error” point. In Barder the error only applies to facts which have occurred since the order. For any set aside application the “no error of the court” (eg non-disclosure of financial information; failure to inform the court of factors relevant to a child) will have occurred before or alongside the order.
It is not clear why the set aside jurisdiction was not incorporated for all family proceedings by this new rule (and thus the need for SCA 1981 s 17 still to apply in family cases); nor why the parallel Barder jurisdiction could not have been dealt with procedurally at the same time.
5 October 2016
David Burrows is a solicitor advocate, trainer and writer.
He writes a blog at DB Family Law