6th May 2015
- There are some limited occasions in which a party to a final consent order in financial remedy proceedings will want to vary it: fraud, mistake or material non-disclosure are the typical reasons for doing so.
- The person seeking to vary the consent order has had a choice of procedures to follow:
- a fresh application to the original court to set aside the order;
- an appeal.
- FPR PD 30A para 14.1 provides that:
“14.1 The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged.”
- A strict reading of the final italicised sentence would make the alternative approach of applying back to the initial court unavailable. In a recent decision, the President considered this point.
- In CS v ACS & BH  EWHC 1005 (Fam), the parties had obtained a final order by consent in January 2009. In 2013, she applied back to the original court which made the order, alleging material non-disclosure and seeking to vary the nominal maintenance order for a substantive one. The ex-husband relied on FPR PD 14.1 and argued that the ex-wife could not make an application to set aside, but had to apply to appeal the original order.
- The President first noted that a new section 31F was inserted into the Matrimonial and Family Proceedings Act 1984 which includes at 31F(6):
“(6) The family court has power to vary, suspend, rescind or revive any order made by it”
- He then referred to FPR 4.1(6):
“(6) A power of the court under these rules to make an order includes a power to vary or revoke the order.”
- So far so good.
- The President then considered the scope of the appeals rules and practice directions. His view was that the final sentence of FPR PD30A 14.1 does not sit comfortably with the appeals rules in that it does not merely set out a procedure to follow once the appeals process has been launched, but rather it seeks to restrict other forms of procedure.
- He examined some recent authorities on the issue of setting aside final orders: Musa v Karim  EWCA Civ 1332, Gohill v Gohill (No. 2)  EWCA Civ 274 and Sharland v Sharland  EWCA Civ 95. However, in none of those cases was there any consideration of the final sentence of FPR PD 30A 14.1.
- In MAP v RAP  EWHC 4784 (Fam), Mostyn J had considered the point and took the view that if the basis for setting aside the consent order were a Barder type event, then the mandatory appeal route was the only one available. Mostyn J also commented that a set aside based on non-disclosure should follow the appeal route but was less certain.
- The President’s judgement was that an application to set aside was a long recognised form of remedy which now had statutory basis under s.31F(6) of the 1984 Act and was supported by FPR 4.1(6). The conflict between the statutory provision on the one hand and practice direction on the other 1 should be resolved by giving primacy to the statute.
- It follows then that the 2 routes remain available to a person seeking to set aside a consent order: both the appeal and set aside routes. The disadvantage to the applicant in taking the appeal route is that there is the “filter” of having to seek permission to appeal. That clearly does not apply to an application to set aside.