A new approach – Roux v Ma

The first hearing, from which this appeal arose, was listed pursuant to the husband’s application to set aside a full financial remedy order made by consent following a Financial Dispute Resolution (FDR). Shortly after the FDR, the wife came into substantial sums of money from her family. Accordingly, the husband’s case was that a different outcome might have pertained had this been disclosed when the consent order was reached. 

At the first hearing, the wife invited the court to summarily dismiss the husband’s application on the basis it was unmeritorious. She argued this fell under the court’s case management powers in rule 4.1(3)(m) and PD9A (particularly paragraph 13.8) of the Family Procedure Rules 2010.

At first instance, the court determined that it did not have the power to strike out or otherwise summarily determine the application. The court was of the view that paragraph 13.8 of PD9A was of no effect because the scope of the court’s power under FPR 4.4(1) to strike out a full financial remedy application had been established by the Supreme Court in Wyatt v Vince [2015] UKSC 14 and affirmed in Roocroft v Ball [2017] 2 FLR 811, both of which were binding. The power to strike out or otherwise summarily determine such an application was, as per Roocroft, limited to the category of legally unrecognisable claims.

The wife advanced two grounds of appeal arising out of the court’s refusal of her application.  

First, she argued that King LJ in Roocroft had wrongly interpreted the position in Wyatt, as Lord Wilson’s decision regarding the lack of any power of summary judgment was clearly limited to final financial remedy order applications (where the court is obliged to apply section 25 of the Matrimonial Causes Act 1973). It followed that where there is a conflict between a Court of Appeal and Supreme Court decision the court should be bound by, and follow, the guidance of the Supreme Court.

Second, the wife argued that the Court of Appeal decision in Roocroft had been superseded by the subsequent introduction of FPR 9.9A. This created, from 3 October 2016, a new streamlined procedure for applications to set aside orders including consent orders when no error of the court is alleged. The wife argued that the first instance judge should have distinguished Roocroft on the basis that both Wyatt and Roocroft were concerned with the interpretation of rule 4.4(1), and neither rule 9.9A or paragraph 13.8 of PD9A were considered in those cases, as they were not in force at the time.

The wife argued that had they been in force, it was inconceivable that the same principles would have been applied to their interpretation in the context of a set aside application, because the rationale in Lord Wilson’s opinion was the court’s obligation to exercise its wider purview in the context of a final financial remedies order. Having removed paragraph 2.4 of PD4A (which read: ‘A party may believe that it can be shown without the need for a hearing that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law…In such a case a party concerned may make an application under rule 4.4.’), the addition of rule 9.9A, and associated paragraph 13.8 of PD9A makes it clear that a power of summary dismissal of an unmeritorious application arises in the case of set aside application.

That wording, the wife argued, was deliberate. That must be right, as otherwise any claim, no matter how unmeritorious, must be permitted to proceed; that cannot have been the intention of parliament, nor is it consistent with a proper reading of Wyatt.

On appeal, Mr Justice Francis agreed with the wife’s submission that King LJ had wrongly interpreted the position in Wyatt. The court concluded, however, that Roocroft was an interpretation of a Supreme Court decision, and as a High Court judge he therefore remained bound by the decision in Roocroft. This ground of appeal could not, therefore, succeed in the High Court.

The second ground of appeal did, however, prevail. The court determined that the position is now different from that which pertained when the Court of Appeal considered it in Roocroft, as rule 9.9A (and PD9A) were not in force at that time.

Therefore, while the High Court in Roux v Ma did not overturn a decision of the Court of Appeal (indeed, the doctrine of precedent dictates that it cannot), it effectively time-limited it to apply only to applications made before the introduction of the new rules, specifically rule 9.9A.

The correct test, in light of this shift, was set out in paragraph 47 of the judgment:

1. When considering whether to strike out an application to set aside a financial remedies order made under FPR 9.9A, the court may have regard to all matters set out in FPR 4.4(1)(a) to (d) and is not constrained in the same manner that an application to strike out an application for a final financial remedies order is, pursuant to Wyatt v Vince. This means when exercising its powers under 4.4(1)(a) the court may consider whether the application has a real prospect of success.

2. The court retains its full range of case management powers as set out in the PD9A para. 13.8 which includes, where appropriate, the power to strike out or summarily dispose of an application to set aside a financial remedies order made under FPR 9.9A and these powers may be exercised with reference to [real] prospects of success.

The position has therefore been clarified as: the court does have the power to strike out or otherwise summarily determine an application to set aside a financial remedies order, and it may do so by applying a merits-based filter, the ‘real prospects of success’ test. This is distinct from an application to strike out a final financial remedy order, which cannot be summarily determined as the court is obliged to have regard to all the factors in section 25 of the MCA 1973.

Financial remedy practitioners may therefore invite the court to strike out an application to set aside a financial remedy order at the first hearing. This provides some hope for respondents that there is finality to financial litigation; they need not go through the stress, expense and upheaval of fresh proceedings in the event the application has no real prospects of success.

Alexandra Halliday is a barrister at 4PB