![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Family Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Williams v Williams [2024] EWHC 733 (Fam) (10 April 2024) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2024/733.html Cite as: [2024] EWHC 733 (Fam) |
[New search] [View without highlighting] [Printable PDF version] [Help]
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
THE PRESIDENT OF THE FAMILY DIVISION
____________________
Mrs Williams |
Applicant |
|
- and – |
||
Mr Williams |
Respondent |
____________________
Mr James Ewins KC and Ms Janine McGuigan (instructed by Ribet Myles LLP) for the Respondent
Hearing dates: 8 March 2024
____________________
Crown Copyright ©
Sir Andrew McFarlane P:
Relevant factual background
"1. The Final Order granted on 03/10/2023, pursuant to the court's power under rule 4.1(6) of the FPR 2010, as this application was made in error and not on the basis of any instructions from our client." [sic]
The Wife's submissions
a) Using the court's power to set aside an order under Family Procedure Rules 2010, 4.1(6) ['FPR'];
b) Using the High Court's inherent jurisdiction as confirmed (but not used) in the case of X v Y [2020] EWHC 1116 (Fam);
c) By the order being appealed; or
d) By amendment under the 'slip rule'.
'(2) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(3) Except where these rules provide otherwise, the court may –
(a)….
(o) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.
…
(6) A power of the court under these rules to make an order includes a power to vary or revoke the order.'
'[16] The court has a choice as to whether to exercise the jurisdiction to grant the order that is sought under Rule 4.1(6) of the Rules or under the inherent jurisdiction of the High Court. I favour undertaking that task under the Rules. It seems to me that what is being corrected here is an error of process, and there is no need for the court to look to exercise any higher or more esoteric jurisdiction.'
'(1) The court may at any time correct an accidental slip or omission in a judgment or order.
(2) A party may apply for a correction without notice.'
'[23] The slip rule is the mechanism whereby a clerical error of the court or its officials can be corrected or where error arises from some accidental slip or omission.' [emphasis added]
'39 In my judgment, this jurisprudence permits the following conclusions to be drawn:
(i) Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR r 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.
(ii) The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.
(iii) …
(iv) Thus there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.'
The Husband's submissions
'[100] That apart, there are, I think, three general conclusions to be drawn from this survey of the jurisprudence:
(i) First, a general lack of appetite to find that the consequence of 'irregularity' – I use the word in a loose general sense and not as a term of art – is that a decree is void rather than voidable. That is something one finds sometimes stated in terms – as by Phillimore LJ in P v P [1971] P 217, at 225, by Sir George [Baker] in Dryden v Dryden [1973] Fam 217, at 236, by Rees J in Wright v Wright [1976] Fam 114, at 124, and by Holman J (who, as we have seen, knows a lot about these things) in Krenge v Krenge [1999] 1 FLR 969, at 978 – and it is, in truth, implicit in much of the analysis which underpins all these cases. And the language used is typically robust. If Phillimore LJ confined himself to the proposition that a court 'ought not lightly to treat a decree absolute as void', Sir George, followed by Holman J, said that the court 'should strive to hold that a decree absolute is voidable rather than void', while Rees J said that the court 'should only hold a decree absolute to be void if driven by the terms of the relevant statute so to hold.'
(ii) Secondly, a general recognition that only if the decree is held to be voidable, and not void, will the court be able to do justice to all those whose interests are affected and having regard to the particular circumstances of the case.
(iii) Thirdly, recognition of the public interest, where matters of personal status are concerned, in not disturbing the apparent status quo flowing from the decree and the certainty which normally attaches to it. This, as Ms Bazley points out, is a general principle extending across matrimonial law and including such matters as the recognition in this jurisdiction of foreign divorces. In addition to the authorities I have already cited, Ms Bazley helpfully referred me to others, including, for example, the dicta of Scott LJ in Meier v Meier [1948] P 89, at 93, quoted by Sir Jocelyn [Simon] in F v F [1971] P 1, at 13; of Sir Jocelyn himself on the same page ('the importance that Parliament attaches to the certainty of the change of status arising out of a decree absolute'); of Hughes J in El Fadl v El Fadl [2000] 1 FLR 175, at 191; of Stephen Wildblood QC in H v H (Queen's Proctor Intervening) (Validity of Japanese Divorce) [2006] EWHC 2989 (Fam), [2007] 1 FLR 1318, at para [183]; and of Parker J in NP v KRP (Recognition of Foreign Divorce) [2013] EWHC 694 (Fam), [2014] 2 FLR 1, at para [131].'
'On the subject of costs, we see that you have (extraordinarily) applied to set down our application for recission of the final divorce order. We have no interest in pursuing that application at the moment, so the idea that it should be set down at huge cost to the parties is astonishing. The position is almost certainly that the final divorce order will stand.' [emphasis added]
Mr Ewins makes the point that if, as Mr Todd submitted, there is jurisdiction to set aside a mistakenly applied for order where there is 'prompt resort to the court', this letter, presumably written on the client's instructions, indicates the opposite of promptness.
'In the circumstances [following the DDJ order], and as things stand, the parties are still married. It is therefore your client, and not ours, who will need to make a decision as to how he wishes to proceed, not least in circumstances where it has previously been his position that he may incur 'adverse costs or tax consequences' as a result of being divorced.'
Discussion and conclusion
(a) The 'click of the mouse'
(b) The DDJ's 17 October Order
(c) Setting aside the final order
"[51] As referred to above, a decree absolute effects an important change of status. It is equivalent to a judgment in rem and, as a result, is an order which does not simply affect the personal rights of the parties to the decree but is an order which is conclusive as to a person's status and is, what is sometimes termed, 'good against the world'. Accordingly, everyone is entitled to rely on it as establishing that the parties are no longer married.
…
[54] The next authority is Callaghan v Hanson-Fox and Another [1992] Fam 1, [1991] 2 FLR 519, an important decision which analysed all the previous cases dealing with the circumstances in which the court might set aside a decree absolute. In that case, the husband sought the rescission of a decree absolute on the basis that the fact relied on in the petition, namely 2 years' separation, had been false as the parties remained living together. It was, therefore, as in the present appeal, a case of alleged fraud in relation to the fact relied on under s 1(2) of the 1973 Act to establish irretrievable breakdown.
[55] Sir Stephen Brown P's conclusion is set out in the Headnote:
'… a decree absolute granted by a court with competent jurisdiction and after compliance with the correct procedural requirements was unimpeachable; that it was in the public interest that a decree absolute which affected status should be unimpeachable; and that, since there had been no procedural irregularity, the decree absolute was not only binding on the parties but should stand against all the world.'
In the course of his judgment, Sir Stephen Brown P summarised, at 8D–G and 526–527 respectively, the effect of the authorities to which he had been referred by (the then) James Holman QC, instructed by the Queen's Proctor:
'Mr Holman as amicus curiae has taken the court to all the reported cases in which a decree absolute has been held to be void. They are all cases where a decree has been held to be void because of a fundamental procedural irregularity. In Woolfenden v Woolfenden [1948] P 27 the application for decree absolute was made before the statutory time had elapsed. In Ali Ebrahim v Ali Ebrahim [1983] 1 WLR 1336 there had been total non-service of the petition. In Nissim v Nissim (1988) 18 Fam Law 254 there was a statutory defect because the case had purportedly been re-transferred to a county court from the High Court in circumstances where there was no statutory power so to do. It is to be noted in passing that subsequently Parliament hurriedly passed a statute to remedy the anomaly. In Butler v Butler (Queen's Proctor intervening) [1990] 1 FLR 114 the defect arose from the fact that the petition for dissolution of marriage had in effect been presented within one year of marriage.
Mr Holman pointed out that in the cases where a decree has been held to be voidable they also turned upon procedural irregularity. He accordingly submits that there is no known case where a decree absolute has been set aside after it has been granted in circumstances of complete jurisdictional and procedural regularity. Furthermore, there is no reported case of a decree absolute having been set aside in circumstances of complete procedural regularity even where an allegation of fraud has been made.'
[56] Sir Stephen Brown P then referred to Bater v Bater, Kemp-Welch v Kemp-Welch and Crymes [1912] P 82 and Crosland v Crosland [1947] P 12, [1946] 2 All ER 91. It is relevant to note that in each of those cases the person seeking the rescission of the decree absolute had alleged that the court's decision had been obtained by fraud. Sir Stephen Brown P quoted passages from those cases which, in his view at 10D and 528 respectively, 'emphasise the unimpeachable character of a decree absolute'. He then set out his conclusion, at 10D–E and 528–529 respectively:
'As was pointed out in Bater v Bater [1906] P 209 a decree absolute affects status and is equivalent to a judgment "in rem". It is in the public interest that a decree absolute should be unimpeachable where no question arises as to the jurisdiction of the court pronouncing it or as to the procedural regularity which led to its being made.'"
"[67] I have set out above the key authorities which have considered the circumstances in which a decree absolute can be set aside. It is clear from these authorities that these circumstances are limited. They are limited because a decree absolute is a declaratory judgment which conclusively determines a person's marital status. In addition to the parties, all public authorities and all other individuals are entitled to rely on the declaratory effect of the decree. This can have significant consequences across a wide range of issues including, for example, the right to marry. To take that example, if a prior decree absolute were set aside, any subsequent marriage would be void under s 11(b) of the 1973 Act.
…
[70] It is a conclusion which is also supported by the statutory framework. Section 18(1) of the Senior Courts Act 1981 provides, as set out above, that a party cannot appeal from a decree absolute when they 'had time and opportunity to appeal from the decree nisi'. This makes clear that a party's ability to challenge a decree is prior to its being made absolute. Sections 8 and 9 of the 1973 Act, as referred to above, are 'restricted to the period before the decree is made absolute': Callaghan v Hanson-Fox and Another [1992] Fam 1, [1991] 2 FLR 519, at 7B and 525 respectively. These provisions, as was said by Sir Jocelyn Simon P in F v F [1971] P 1, [1970] 2 WLR 346, point to 'the importance Parliament attaches to the certainty of the change of status arising out of a decree absolute'.
[71] I turn finally to my determination on the facts of this case which I can also set out briefly.
[72] If the judge had set aside the decree absolute on the basis only of fraud as to the date of separation, this appeal might have taken a different course. However, the second part of his judgment made clear that he also set the decree aside because of procedural irregularity, namely that the decree had been made absolute in breach of FPR 2010, r 7.32(2) because the wife's application to rescind the decree nisi was pending. This, as Mr Timson rightly accepted, made the decree absolute voidable. The judge was plainly entitled to decide to set the decree aside and, although he expressed his reasons very briefly, Mr Timson has not persuaded me that the judge's decision was wrong or that there was any other flaw which would entitle this court to interfere with that decision."
'Whether that curtailment goes even further in the case of a final order does not arise in this appeal'.
In any event, the mere existence of a procedural power to set aside or amend an order does not, of itself, give the court an open jurisdiction to exercise that power where there is clear authority on the approach to be taken to a particular category of order, as is the case here with respect to a final order of divorce. Against the background of clear authority as to the approach to be adopted given in Shahzad and the earlier cases, the existence of a procedural facility to set aside or amend in r 4.1(6) or r 29.16 (or under the inherent jurisdiction) in reality adds nothing and is of no relevance to the central question of whether, as a matter of substantive law, it is open to the court to set a final divorce order aside and, if so, whether it should do so on this occasion.
Order