CS & ACS (1) BH (2)  EWHC 1005 Fam
On 27 November 2008 the terms of a consent order disposing of ancillary relief proceedings were approved by the court. In January 2009 the wife applied for an order to “set aside paragraph 9” of the order. She sought to substitute a nominal maintenance order with one of substantive maintenance. The basis of her application is her allegation that the husband failed to provide full and frank disclosure.
The husband submitted in reliance upon PD 30A para 14.1 that her only remedy was to appeal the consent order. In order to do that she would require permission, whereas permission would not be required for a variation of the consent order.
FPR Part 30 regulates appeals to the family court and from the family court to the High Court. PD30A para 14.1 headed “Appeals against consent orders” provides that:
“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 raft of case law on the point was presented to the court including the sad case of Roult v North West Strategic Health Authority  EWCA Civ 44,  1 WLR 487, a personal injury case involving a young man who was deprived of oxygen at birth, the hospital admitted liability, and damages were agreed. Subsequently for various reasons his living costs were greater than had been previously calculated and the question was whether the judge had power to re-open his order under CPR 3.1.(7). The Court of Appeal held that he did not.
Sir James Munby, the President, considering all the arguments ultimately did not accept that the final sentence of PD30A, para 14.1 does not fetter or encroach on the rights of the litigator, consequently, on the powers of the court. He relied on the decisions of the Court of Appeal in Musa v Karim EWCA Civ 1332, Sharland v Sharland  EWCA Civ 95, 2 FLR 89, and Gohil v Gohil (No 2)  EWCA Civ 274,  Fam 89 as demonstrating that FPR 4.1(6) continues to permit the long standing principle that an application such as the wife’s could be made to the judge at first instance.
In so saying he went on to observe that therefore the makers of PD30A exceeded their powers when including para 14.1. Therefore the wife was entitled to proceed with her application without first seeking permission.
Watch out for an amendment to the rules on this point in due course to avoid this conflict between the statute and the rule on one hand and the practice direction on the other.