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Extract from the Commentary on Part 4: General Case Management Powers (note no hyperlinks are possible within this extract, but are present within @eGlance)

 
4.1 Part 4 seeks to set out and specify the court's General Case Management Powers as compendiously as possible.

4.2 Part 4 is the direct counterpart of CPR Part 3. There has been a good deal of jurisprudence on the interpretation of the identical language used in CPR Part 3. Unsurprisingly, the dominant theme has been that in deciding whether, and if so how, to exercise any particular power the court must take into account the overriding objective to deal with cases justly: see, for example, Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645, [2002] 1 WLR 3095.

General powers of management [Return to top]

4.3 Rule 4.1 should be regarded as a particularisation of the duty in rule 1.4(1) to further the overriding objective by actively managing cases. The specification of that duty in rule 1.4(2)(a) to (m) should be regarded as amplified and mechanised by Part 4, rather than being in any way in conflict with it because of the use of different language.

4.4 The list of powers set forth in rule 4.1(3)(a) to (o) allow judges to achieve the greatest degree of efficiency possible. An interesting specific power is (e) 'to hold a hearing and receive evidence by telephone or by using any other method of direct oral communication'. This would seem to suggest that hearings by Skype are acceptable, but probably not by Twitter. Note should be made of (o) which allows the court to 'take any other step or make any other order for the purpose of managing the case and furthering the overriding objective'. Thus is the fertile imagination of the judge in question engaged.

Applications to vary or revoke a previous order [Return to top]

Substantive orders [Return to top]

4.5 Rule 4.1(6) provides that 'a power of the court under these rules to make an order includes a power to vary or revoke the order'.

4.6 In CS v ACS & Anor [2015] EWHC 1005 (Fam), [2015] Fam Law 647 [2016] 1 FLR 131 and sub nom S v S [2015] 1 WLR 4592 the President undertook a comprehensive review of the state of the law in this field. He explained that the wording of rule 4.1(6) was general and unrestricted and was mirrored by the terms of section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (as inserted by the Crime and Courts Act 2013, and in force from 22 April 2014) which provides that:

'The family court has power to vary, suspend, rescind or revive any order made by it, including –
(a) power to rescind an order and re-list the application on which it was made,
(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c) power to vary an order with effect from when it was originally made.'

He concluded that the final sentence of PD 30A para 14.1, which provides that 'an appeal is the only way in which a consent order can be challenged' was ultra vires the powers of the makers of the Practice Direction. It was (at [36]) 'a provision purporting to forbid a litigant to have recourse to a form of remedy long recognised by the common law, let alone to a remedy expressly conferred by both statute (section 31F(6) of the 1984 Act) and rule (FPR 4.1(6))'. In the light of this judgment PD 30A has been amended to omit the second sentence of para 14.1 with effect from 17 July 2015.

[Update 2016.4]

4.6.1 In Gohil v Gohil [2015] UKSC 61, [2015] 3 WLR 1085, [2015] 2 FLR 1289, [2015] 3 FCR 497 Lord Wilson at [17] pointed out that while, strictly speaking, section 17 of the Senior Courts Act 1981 required a rule to be made to authorise a set-aside application in respect of a High Court order to be made to the original court, and no such rule had been made, nonetheless 'there is high authority – although its consonance with section 17(1) of the 1981 Act seems never to have been established – that the issue by the wife of a fresh action to set the order aside would have conferred the necessary jurisdiction on a judge of the High Court'. He observed at [18] that for family court orders a 'convenient solution seems already to have been achieved by the provision of the Matrimonial and Family Proceedings Act 1984 recently inserted as section 31F(6), under which the family court has power to rescind any order made by it'. It would appear that FPR rule 4.1(6) was not drawn to his attention, for this plainly allows an application to set aside a High Court order to be made to the original court as rule 2.1 applies the rules to family proceedings in the High Court as well as in the family court.

4.6.2 In Sharland v Sharland [2015] UKSC 60, [2015] 3 WLR 1070, [2015] 2 FLR 1367, [2015] 3 FCR 481 the Supreme Court definitively set out the applicable principles where an application is made to set aside an order on the ground of fraud. It held that a party who had practised deception with a view to a particular end, and had achieved it, could not be allowed to deny its materiality; that the victim of a misrepresentation which had led her to compromise her claim to financial remedies in a matrimonial case should not be in a worse position than the victim of a fraudulent misrepresentation in an ordinary contract case, including a contract to settle a civil claim. The only circumstances in which the court would not set aside the consent order were if the perpetrator of the fraud satisfied the court that, at the time when it had made the consent order, the fraud would not have influenced a reasonable person to agree to it, and that the court would not have made a significantly different order had it known then what it knew now.

4.7 The case before the President concerned an application to set aside a consent order originally made by a district judge, on the ground of non-disclosure. It is now definitively settled that an application made on this basis (or on the basis of fraud or mistake) may be made under rule 4.1(6) to the court which made the consent order. In this regard all previous controversy is swept away.

4.8 Both rule 4.1(6) and section 31F(6) of the Matrimonial and Family Proceedings Act 1984 assert without qualification the power to vary an order and to do so from the date when it was made. Obviously this general provision does not supply a back door discretionary route to vary a financial remedy order of those types which section 31 of the Matrimonial Causes Act 1973 (or its civil partnership equivalent) specifically provides shall be non-variable.

4.9 In Omielan v Omielan [1996] 2 FLR 306, the wife sought to vary a Martin order arguing that it was to be characterised as a variable order under section 24A of the Matrimonial Causes Act 1973 rather than a non-variable property adjustment order. Thorpe LJ explained that section 24A was essentially procedural and could not be used to revisit the territory of a final non-variable section 24 property adjustment order.

4.10 The same reasoning should surely apply to any attempt made to vary a section 24 property order under section 31F(6) of the Matrimonial and Family Proceedings Act 1984. In Birch v Birch [2015] EWCA Civ 833, [2015] 3 FCR 249, [2015] Fam Law 1327 the Court of Appeal dismissed a similar argument by the wife that an undertaking that was an intrinsic part of the 'bricks and mortar' of a property adjustment order was in fact a variable section 24A order. In that case at [39] and [44] McCombe LJ held, obiter, that there did however exist the power to 'vary' an undertaking, albeit one that would be rarely exercised. He relied on the decision of Buxton LJ in Mid-Suffolk District Council v Clarke [2006] EWCA Civ 71. However, that earlier case in turn relied on the decision of Kensington Housing Trust v Oliver [1997] 30 HLR 608, which decided nothing more than to confirm the undoubted power of the court to discharge an undertaking. Although Buxton LJ refers to 'alteration or discharge' it is very hard to comprehend how the court derives power to rewrite the terms of a promise given by a party to the court, as opposed to deciding to release him from it on proof of a material change of circumstances.

4.11 In the opinion of the authors it would be a very risky course for a litigant to apply for alteration of an undertaking, as opposed to its full discharge, in reliance on Birch v Birch. It would surely be impossible, conversely, for the party who receives the benefit of the undertaking to apply for it be rewritten to make it even more advantageous to her. Thus, with respect to McCombe LJ, there is no power in the court to alter an undertaking at the behest of the person who gave it other than to order its discharge.

Barder applications [Return to top]

4.12 However, the President left open and undecided what the procedure should be where challenge to the original consent order (whether made by a district judge, circuit judge or High Court judge) is made on the ground that its fundamental assumption had been invalidated by a supervening event under the principles established by the House of Lords in Barder v Barder (Caluori intervening) [1988] AC 20, [1987] 2 FLR 480, [1987] 2 WLR 1350. That case had proceeded as an appeal and Lord Brandon's four necessary conditions at page 43 are all squarely cast in the context of an attempt to bring an appeal out of time and address the question whether leave to do so should be granted or refused. Seemingly, no one considered in Barder whether the application could have been made instead to the judge whose original order it was, formulated as an application to set that original order aside under CCR Order 37 rule 1 or under the general jurisdiction of the court.

4.13 Notwithstanding that Lord Brandon's speech is cast in the language and procedure of an appeal there were instances even before the advent of the FPR where the original court entertained a Barder application as an alternative to an application to set aside on the ground of non-disclosure: G (formerly S) v S [2009] EWHC 2377 (Fam), reported as S v S (No 2) (Ancillary Relief: Application to Set Aside Order) [2010] 1 FLR 993, was such a case, although in view of the facts found it proved unnecessary to consider the procedural propriety of the application: see [55].

4.14 There are obvious procedural simplifications if a Barder application proceeds at first instance. There is no requirement to obtain permission, and the fresh evidence which will often be adduced can be examined more closely in the context of a trial than in an appellate proceeding. Nothing in the unrestricted wording of the recently enacted section 31F(6) of the Matrimonial and Family Proceedings Act 1984 suggests that a Barder application may not be made at first instance.

4.15 However, cases decided under CPR rule 3.1(7), which is in identical terms to FPR rule 4.1(6), suggest that a challenge to a final order on the ground that there has been a material change of circumstances can only be made by way of appeal. In Roult v North West Strategic Health Authority [2009] EWCA Civ 444, the Court of Appeal specifically considered the decision of the House of Lords in Barder. Hughes LJ held at [15]:

'There is scant authority upon Rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs & Excise v Anchor Foods (No 3) [1999] EWHC 834 (Ch). So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams [2006] EWCA Civ 20. I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.'

4.16 This was followed in Cart v Cart [2013] EWCA Civ 1006 (7 August 2013), an ancillary relief case, where the husband applied to the Court of Appeal for permission to appeal out of time against a circuit judge's decision: (a) refusing his application for permission to appeal out of time on Barder grounds against a district judge's ancillary relief order; and (b) refusing the husband's application to set aside that order on the ground of material non-disclosure. Gloster LJ dismissed both limbs of the application. As to the Barder ground she held that the decision of the House of Lords itself made it clear that the correct characterisation of the process is an appeal. Further, following Roult v North West Strategic Health Authority she held that, in circumstances where it is alleged that a subsequent unforeseen event has destroyed the assumption on which an order has originally been made, it is not appropriate for the original court to exercise its powers under CPR rule 3.1(7) (which is worded in identical terms to FPR rule 4.1(6)). By contrast, she held that an application to reopen on the ground of material non-disclosure may indeed be made under FPR rule 4.1(6).

4.17 It appears that Gloster LJ was not referred to the decision of the Supreme Court in Re L and B (children) [2013] UKSC 8, sub nom, In re L (children) (preliminary finding: power to reverse) [2013] 1 WLR 634, decided 5½ months earlier on 20 February 2013. There Lady Hale, admittedly obiter, opined that a fact-finding sealed order in public law children proceedings could be challenged at first instance under rule 4.1(6) on the ground of subsequent material change of circumstances: see [37] and [38]. For this reason the correctness of the decision in Cart has been doubted: see Re F [2014] EWHC 1780 (Fam), [2014] 1 WLR 4375.

4.18 Further, it must be said that, strictly speaking, the judgment in Cart cannot be cited before any court as it was merely a decision refusing permission, given at a hearing attended by one party only, and which does not contain an express statement to the effect that it purports to establish a new principle or to extend the existing law: see para 6 of the Citation of Authorities: Practice Direction (April 2001), [2001] 1 WLR 1001. In Critchell v Critchell [2015] EWCA Civ 436, [2015] Fam Law 772 and sub nom C v C at [2015] 3 FCR 287 the Court of Appeal refused to allow Cart to be cited to it: see [15].

4.19 It is therefore considered that a Barder application can properly be brought at first instance, although a definitive decision must be awaited.

[Update 2016.4]

4.19.1 In Cole v Howlett & Ors [2015] EWHC 1697 (Ch) Peter Smith J held that the power to set aside under CPR 3.1(7) is not confined to orders other than final orders. He undertook an extensive examination of the authorities and stated [at 49]:

'I draw the following conclusions from the examination of the authorities. The authorities I referred to above are not necessarily exhaustive but these are the conclusions I draw from considering the ones provided to me:-
1) The power to vary or revoke an order is entirely discretionary and is not prescribed by any rules or restrictions.
2) The court nevertheless will generally not allow a party to treat a review application as if it were an appeal or a simple attempt to re-run the previous hearing on precisely the same material.
3) The court will generally be less favourably inclined to consider a review of a final decision.
4) The court will generally require either a change of circumstances or a misleading of the Judge in the first decision.
5) The court nevertheless must consider all the circumstances of the case and none of the above is a requirement for the court to consider varying or revoking a previous order.'

4.19.2 In Thevarajah v Riordan and others [2015] UKSC 78, [2016] 1 WLR 76 the Supreme Court considered what might amount to a 'material change of circumstances'. It held that when a court has made an interlocutory order it is not normally open to a party subsequently to ask for relief which effectively requires that order to be varied or rescinded, whether the application was made under CPR r 3.1(7) or otherwise, unless there has been a material change in circumstances. When a party is subject to a debarring order for failing to comply with an 'unless' order to do something within a specified period and relief from sanctions is refused at a time when he is still in default, the mere fact that he subsequently complies with the 'unless' order cannot amount to a material change of circumstances entitling him to make a second application for relief from sanctions because, by refusing his first application for relief, the court would have effectively ruled that it was now too late for him to comply with the 'unless' order. At [22] Lord Neuberger stated:

'Of course, that does not mean that late compliance, subsequent to a first unsuccessful application for relief from sanctions, cannot give rise to a successful second application for relief from sanctions. If, say, the "unless" order required a person or company to pay a sum of money, and the court subsequently refused relief from sanctions when the money remained unpaid, the payment of the money thereafter might be capable of constituting a material change of circumstances, provided that it was accompanied by other facts. For instance, if the late payment was explained by the individual having inherited a sum of money subsequent to the hearing of the first application which enabled him to pay; or if the company had gone into liquidation since the hearing of the first application and, unlike the directors, the liquidator was now able to raise money. These are merely possible examples, and I am far from saying that such events would always constitute a material change of circumstances, or, even if they did, that they would justify a second application for relief from sanctions.'

4.20 Assuming that a Barder application can properly be brought at first instance, it should not be thought that the general, unrestricted language of rule 4.1(6) or of section 31F(6) of the Matrimonial and Family Proceedings Act 1984 can in any way be taken to signal a relaxation of the rigour of the principles in Barder. Lord Brandon's four conditions must surely still all be met before any application on this basis can succeed. Those conditions are:
• New events have occurred since the making of the order invalidating the basis, or fundamental assumption, upon which the order was made. 
• The new events should have occurred within a relatively short time of the order having been made. It is extremely unlikely that could be as much as a year, and in most cases it will be no more than a few months. 
• The application to set aside should be made reasonably promptly in the circumstances of the case. 
• The application if granted should not prejudice third parties who have, in good faith and for valuable consideration, acquired interests in property which is the subject matter of the relevant order. 
For two recent cases offering both exposition and application of these principles see Critchell v Critchell [2015] EWCA Civ 436, [2015] Fam Law 772 and sub nom C v C at [2015] 3 FCR 287 and WA v Executors of Estate of HA and others [2015] EWHC 2233 (Fam), [2015] Fam Law 647.

[Update 2016.4]

4.20.1 See DB v DLJ [2016] EWHC 324 (Fam) for a further exposition of the Barder jurisprudence. In that case at [91] the court concluded (albeit and expressly obiter) that, for the reasons set out in paras 4.12 to 4.20 of this Commentary, a Barder application may be made to the original court and not necessarily or exclusively by way of appeal.

Case management and interlocutory orders [Return to top]

4.21 The limitations on the use of CPR rule 3.1(7) to vary or revoke an interlocutory or case management order have been clearly delineated in a line of cases commencing with Tibbles v SIG Plc [2012] EWCA Civ 518, [2012] 4 All ER 259. The power is not 'unbounded'. In Arif v Zar & Anor [2012] EWCA Civ 986 at [27] Patten LJ stated:
'In this case Mostyn J purported to exercise the powers contained in CPR 3.1(7) [which provides that "a power of the court under these Rules to make an order includes a power to vary or revoke the order"] which he described as unbounded. He was clearly wrong about this. There is a long line of authority beginning with my decision in Lloyds Investment (Scandinavia) Ltd v Ager Handerssen [2003] EWHC 1740 (Ch) and culminating in the recent decision of this court in Tibbles v SIG Plc [2012] EWCA Civ 518, [2012] 4 All ER 259 which confirms that far from being unrestricted, the power of the court to vary or revoke one of its own orders is ordinarily limited to cases where there has been a material change of circumstances since the order was made or the original order can be shown to have been based on misstated facts or material non-disclosure. In most other cases the finality of the court's orders has to be respected and the proper way of challenging the order is by way of appeal.'
In Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 at [44] Lord Dyson MR stated:
'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 required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order.'

4.22 There is no reason to suppose that the same principles would not be applied on a challenge under rule 4.1(6) to vary or revoke a case management or interlocutory order.
Reconsideration of judgment prior to sealing order [Return to top]

4.23 The power to set aside is separate from the power of a court, whether of its own motion, or on application by a party, to recall, reconsider and revise a judgment prior to the sealing of the order giving effect to it. That power has recently been considered by the Supreme Court in Re L and B (children) [2013] UKSC 8, sub nom, In re L (children) (preliminary finding: power to reverse) [2013] 1 WLR 634 where Lady Hale held that there was no requirement of exceptionality before the jurisdiction could be exercised. At [27] she stated:

'This court is not bound by Barrell or by any of the previous cases to hold that there is any … limitation [of exceptionality] upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] EWCA Civ 362, [2000] 1 WLR 2268, at 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, The Times, 9 November 1999, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.'

4.24 In Quan v Bray & Ors [2014] EWHC 3340 (Fam), [2015] 3 FCR 436 Sir Paul Coleridge deprecated a Barrell application by the wife supported by extensive submissions seeking, in effect, that numerous factual findings be reversed and found anew in her favour. At [78(i)] Sir Paul stated:

'The use of the Barrell jurisdiction in these circumstances and in the fashion employed by the wife is quite simply wrong and not the purpose of that process. That process is designed to allow the court to look again at particular findings or conclusions where some particular fact or evidence has obviously been omitted, overlooked or has changed since the hearing. It does not afford a party the right to invite the court to start again from scratch and "have another go" at finding for them based on an entire re-arguing of the case. If that were a permissible approach it would result in litigation without end as one Barrell application would inevitably follow upon another and then another. 99 pages of further submissions says it all.'

[Update 2016.4]

4.24.1 On 14 December 2015 in a Supplemental Judgment [2015] EWCA Civ 140 King LJ heaped further deprecation when Mr Bray attempted to engage Barrell principles on the basis of a substantial document seeking to reargue his case that permission to appeal should not have been granted. Meanwhile, on 4 December 2015 the Court of Appeal had granted the wife permission to appeal against the first instance decision that the trust in question was not nuptial: but the order recording that decision had not been sealed.

4.25 In Heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC) Edwards-Stuart J formulated the principle in these terms at [18]:
'It therefore seems to me that in principle there has to be something more than a post-judgment second thought based on material that was already in play. If it were otherwise, any fresh point that occurred to a party following the handing down of a judgment would entitle the party to require the court to hear further submissions with a view to revisiting the judgment. That would then become the rule rather than the exception. It seems to me that this would accord neither with the interests of finality of judgments nor with the overriding objective to deal with cases justly and at proportionate cost, particularly in the sense of ensuring that parties are on an equal footing, avoiding unnecessary expense and dealing with cases expeditiously. However, at the end of the day the court has a discretion which must be exercised judicially and not capriciously.'

4.26 In Space Air-conditioning Plc v Guy [2012] EWCA Civ 1664 the judge, when hearing an application for permission to appeal, acknowledged that one of her findings of fact in her judgment had been plainly wrong. But she did not correct the judgment. The Court of Appeal stated that such an error in the judgment ought to have been corrected and that the judge having declined to do so, a retrial would be ordered.

4.27 The whole subject of the procedure for applying to set aside orders is under review by the Family Procedure Rules Committee.


Joinder [Return to top]

4.28 The position as to adding (or removing) parties is dealt with by rule 9.26B in terms which are indistinguishable from CPR rule 19.2(2). This gives the court power to direct that a person or body be added as a party to proceedings for a financial remedy if: (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

4.29 If the court makes a direction for the addition of a party under this rule, it may give consequential directions about: (a) the service of a copy of the application form or other relevant documents on the new party; and (b) the management of the proceedings.

4.30 The power of the court under rule 9.26B to direct that a party be added may be exercised either on the court's own initiative or on the application of an existing party or a person or body who wishes to become a party.

4.31 An application for an order under this rule must be made in accordance with the Part 18 procedure and, unless the court directs otherwise, must be supported by evidence setting out the proposed new party's interest in or connection with the proceedings or, in the case of removal of a party, the reasons for removal.

4.32 For the powers and the procedure in relation to removing parties, see the provisions described in the Commentary to Part 9.

4.33 In the cases of Gourisaria v Gourisaria [2010] EWCA Civ 1019, [2011] 1 FLR 262 and Goldstone v Goldstone [2011] EWCA Civ 39, [2011] 1 FLR 1926, the Court of Appeal has given comprehensive guidance on the principles and procedure to be applied on an application to join a third party to a financial order application. See also Fisher Meredith v JH and PH (financial remedy: appeal: wasted costs) [2012] EWHC 408 (Fam), [2012] 2 FLR 536 at [66] and DR v GR and Ors (financial remedy: variation of overseas trust) [2013] EWHC 1196 (Fam), [2013] 2 FLR 1534 where it was stated at [35]:

'Drawing the threads together it seems to me that the applicable principles on the question of joinder are as follows:
i) Joinder either of trustees or of the underlying companies is not an essential pre-condition for the validity of a variation of settlement order.
ii) However, it is mandatory for beneficiaries under the age of 18 to be joined unless the court can say that the proposed variation does not adversely affect the rights or interests of any such child. The court has power to modify this requirement but should be very sparing in its exercise. Failure to comply with this rule will not nullify any order later made. The application to join minor beneficiaries should be made at the first appointment following the issue of the application.
iii) The applicant, respondent, and the trustees and/or companies themselves can apply for joinder, but in each instance both the substantive terms of, and the procedure prescribed in, FPR 9.26B must be carefully complied with.
iv) The applicant for joinder must show either:
a) that there is an existing matter in dispute which requires for its resolution the joinder of the new party, or
b) that there is a matter in dispute between a party and the proposed new party which is connected to the main matters in dispute between the parties and that it is desirable to resolve all the issues together.
v) Under the first limb it must be clearly shown that an existing matter in dispute between the parties cannot be effectually and validly resolved without the joinder of the proposed new party.
vi) Under the second limb it must be shown that there is a separate dispute between a party and the proposed new party and that it is desirable to hear the matters together. The question of whether it is desirable to hear the matters together extends to the commonality of evidence as well as the saving of costs.
vii) If better enforcement of an order in a foreign jurisdiction is relied on under either limb there must be evidence that joinder would actually make a difference. Mere assertion or statements of belief will not suffice.
viii) An application for joinder must be made on notice under the Part 18 procedure, which requires 7 days' notice. Although the application strictly speaking does not need to be served on the proposed new party it would be better in the future if it were. The application must be supported by clear evidence.'

4.34 In Tchenguiz-Imerman v Imerman [2012] EWHC 4277 (Fam), [2014] 1 FLR 865 it was decided that the joinder of the adult beneficiaries of a trust would assist in the investigation and resolution of the issues in circumstances where the overseas trustees, although joined, were (with the approval of their local courts) not participating in the proceedings. Following their joinder extensive disclosure measures were imposed on the adult beneficiaries.

4.35 It is open to the court to allow a third party who has been refused joinder nonetheless to attend the final hearing, to be represented, and to participate to a limited degree: see JB v MB [2015] EWHC 1846 (Fam) where such a facility was afforded to the company of which the husband was a 70% shareholder.


Altering time limits [Return to top]

4.36 By rule 4.1(3)(a) the court is empowered to extend or shorten time limits. In Robert v Momentum Services Ltd [2003] EWCA Civ 299, [2003] 1 WLR 1577 the Court of Appeal considered the corresponding CPR rule 3.1(2)(a) and held that it would rarely be appropriate to dismiss an application for an extension of time on the ground that the claim is weak unless the court is able to conclude that an application to strike out (under CPR rule 3.4, reflected in FPR rule 4.4) or for summary judgment (under CPR Part 24) would succeed.

4.37 The Court of Appeal has held in Keen Phillips (a firm) v Field [2006] EWCA Civ 1524, [2007] 1 WLR 686 that the general powers to extend time periods are not cut down by CPR rule 3.8 (FPR rule 4.5) which stipulates that sanctions are to have effect unless the defaulting party obtains relief under CPR rule 3.9 (FPR rule 4.6: see Sanctions, below). This continues to apply in the post-Mitchell era: see the decision of Hallam Estates Ltd & Anor v Baker [2014] EWCA Civ 661 where Jackson LJ stated at [26] and [27]:

'An application for an extension of the time allowed to take any particular step in litigation is not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time period. This is the case even if the court deals with that application after the expiry of the relevant period. … The principles concerning relief from sanctions which the Court of Appeal enunciated in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 WLR 795 are not applicable.'

Consolidation [Return to top]

4.38 The court is given power under FPR rule 4.1(3)(h) to consolidate claims. The effect of such an order is to combine two or more claims so that they will proceed thereafter as one claim. In financial order proceedings it is not uncommon for there to be parallel third party claims, for example by a company against a party – as in Ben Hashem v Ali Shayif and Radfan Ltd [2009] EWHC 864 (Fam), [2009] 2 FLR 896.

4.39 It is suggested that the court should be wary of consolidating such claims; rather, the better direction should be for the claims to be heard together by the same judge sequentially as part of one overall hearing. The reason is that otherwise a direction or step specific to one claim becomes common to the other, for which it may be inappropriate.
Conditions [Return to top]

4.40 Rule 4.1(4) states that where the court makes an order it may make it subject to conditions (including a condition that a sum of money be paid into court), and may specify the consequence of failure to comply with the order or a condition. An interesting example of a condition being imposed under CPR rule 3.1(3) other than for a payment into court is Price v Price [2003] EWCA Civ 888, [2003] 3 All ER 311 where a dilatory personal injury claimant who had failed to supply particulars of claim for 15 months was granted an extension of time subject to the condition that he would only be allowed to rely in support of his claim for compensation on the medical evidence available as at the date of issue of his claim form.


Court acting on its own initiative [Return to top]

4.41 Rule 4.3 allows the court to exercise its powers of its own initiative (except where an enactment provides otherwise), and without a hearing.

4.42 Where such an order has been made rule 4.3(5) allows any party affected to apply to have it set aside. In Deeds v Various Respondents [2013] EWCA Civ 1678 the Court of Appeal held that whether this entitled such an applicant to an oral hearing depended on the nature of the order impugned. There was a presumption in favour of an oral hearing if the order under attack impaired a citizen’s right of access to the court.
Power to strike out a statement of case [Return to top]

4.43 Rule 4.4 contains the court's powers to strike out a statement of case. It is explicated by PD 4A. These provisions are modelled on CPR rule 3.4(2) and CPR PD 3A.

4.44 By rule 4.1(1) a 'statement of case' is the whole, or part of, an application form or an answer. By rule 2.3 'application form' means 'a document in which the applicant states his intention to seek a court order other than in accordance with the Part 18 procedure', and by rule 7.12(8) an answer is the familiar (and still traditionally named) defence to an 'application for a matrimonial order' (previously known as a 'petition') for divorce, judicial separation or nullity.

4.45 Part 18 is the prescribed procedure: (a) where the application is made in the course of existing proceedings; or (b) to start proceedings except where some other Part of the FPR prescribes the procedure to start proceedings; or (c) in connection with proceedings which have been concluded. For such applications the procedure stipulated by PD 18A is essentially summary (and may involve no hearing at all). See the Commentary on Part 18. Therefore for such applications a strike-out procedure is unnecessary.

4.46 The strike-out procedure is therefore reserved for originating applications, whether for divorce, financial remedy applications (including financial order applications), or private law children applications (public law applications and adoption and placement applications are excluded), and for appeals.

4.47 Rule 4.4(1) provides that the court may order a strike-out on the ground that: (a) the statement of case: (i) discloses no reasonable grounds for bringing or defending the application; or (ii) is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (iii) fails to comply with a rule, Practice Direction or court order; or (b) in relation to applications for matrimonial and civil partnership orders and answers to such applications, that the parties to the proceedings consent. PD 4A para 2 gives examples of each category. As to the first (statement of case discloses no reasonable cause of action) it cites situations where the case sets out no facts indicating what the application is about; or which is incoherent and makes no sense; or which fails to disclose any legally recognisable application against the respondent. An answer may fall within this category where it consists of a bare denial or otherwise sets out no coherent statement of facts. An application may fall within the second category (abuse of process) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill-founded. These examples are widely framed indeed.

4.48 PD 4A para 2.4 provides:

'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 (including the construction of a document). In such a case the party concerned may make an application under rule 4.4.'
As will be seen, this unhelpfully and impermissibly uses the language of summary judgment, not of strike-out.


[Update 2016.4]

4.48.1 This confusion has now been remedied: paragraph 2.4 has been removed from PD 4A (as already noted at para 4.50 below).

4.49 In Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972, [2015] WLR 1228, the parties married in 1981, separated in 1984 and were divorced in 1992. The court file had been destroyed; all that survived was the certificate of decree absolute. It was not known if the wife had applied for ancillary relief. It was possible that she had and that her claims had been consensually dismissed. In 1995 the husband founded a small power company; this grew to become highly successful and was now worth many millions. In May 2011, 27 years after the separation, the wife applied for a financial remedy. On these extreme facts, the Court of Appeal struck out her claim under rule 4.4. On 12 March 2015 the Supreme Court allowed the wife's appeal. At [27] Lord Wilson described FPR PD 4A para 2.4 as 'an unhelpful curiosity'. He stated:

'it is clear to me that, with respect, Jackson LJ was wrong to insinuate into the concept of abuse of process in Rule 4.4(1)(b) of the family rules an application for a financial order which has no real prospect of success. The learned Lord Justice did not (and could not) suggest that the omission from the family rules of any rule analogous to Rule 24.2 of the civil rules was accidental. It was deliberate; and so it was bold for him to say that nevertheless the effect of that rule was to be discerned elsewhere in the family rules. Although the power to strike out under Rule 4.4(1) extends beyond applications for financial remedies, for example to petitions for divorce, no doubt it is to such applications that the rule is most relevant. The objection to a grant of summary judgment upon an application by an ex-spouse for a financial order in favour of herself is not just that its determination is discretionary but that, by virtue of section 25(1) of the 1973 Act, it is the duty of the court in determining it to have regard to all the circumstances and, in particular, to the eight matters set out in subsection (2). The determination of an application by a court which has failed to have regard to them is unlawful: Livesey (formerly Jenkins) v Livesey [1985] AC 424 at p 437, Lord Brandon of Oakbrook. The meticulous duty cast upon family courts by section 25(2) is inconsistent with any summary power to determine either that an ex-wife has no real prospect of successfully prosecuting her claim or that an ex-husband has no real prospect of successfully defending it. Indeed, were the latter conclusion to be appropriate, how should the court proceed to quantify the ex-wife's claim? For in applications for financial orders there is no such separation as exists in civil proceedings between issues of liability and those of quantum. Procedures for the court's determination of applications for financial orders, which both respect its duty under section 25(2) of the 1973 Act and yet cater for such applications as may be fit for an abbreviated hearing, are now well in place: see para 29 below. I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 of Practice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable. Applications made after the applicant had remarried or after an identical application had been dismissed or otherwise finally determined would be examples of applications not legally recognisable. Since the greater includes the lesser, it is no doubt possible to describe applications which fall foul of Rule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4 of the Practice Direction remains in my view an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment.'
Even though the wife's claims at their highest were modest, and at their lowest were nothing, she was entitled to a short trial: see [36].

4.50 It must be taken to be definitively settled that the power to strike out a claim for a financial remedy is now confined to those cases where the claim is legally impossible (because, for example a party has remarried, or because the claim has previously been dismissed) or where it is demonstrably abusive. See Dellal v Dellal & Ors [2015] EWHC 907 (Fam), [2015] Fam Law 1042 at [14] to [21] where such a view was adopted. In the light of the judgment in Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972, [2015] WLR 1228 PD 4A has been amended to omit para 2.4 with effect from 17 July 2015.

[Update 2016.4]

4.50.1 In Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685, [2015] 1 WLR 4534 the Court of Appeal held that where an application was made under CPR r 3.4(2) to strike out a statement of case in whole or in part at an early stage of proceedings, the court should only exercise the power to strike out in exceptional cases where it was just and proportionate to do so; that the court had power to strike out at an early stage of proceedings where the defendant contended that the claimant had exaggerated his claim, whether fraudulently or otherwise, but only where a claimant was guilty of misconduct in relation to those proceedings which was so serious that it would be an affront to the court to permit him to continue to prosecute the claim, and where the claim should be struck out in order to prevent the further waste of precious resources on proceedings which the claimant had forfeited the right to have determined. At [21] Vos LJ stated 'establishing fraud without a trial is always difficult'.

4.51 It should be noted that under PD 4A paras 3.1 and 4.1 a court officer can take a suspect application or answer which a party seeks to issue straight to a judge for immediate disposal with or without a hearing. This power ought to lead to a reduction in the volume of unmeritorious and/or nonsensical applications with which courts are increasingly plagued.

4.52 See the Commentary on Part 17 for the powers of the court to strike out a claim form or statement of case which has been verified by a false statement of truth.

4.53 Where an application to strike out has been listed for an oral hearing and the judge forms the view on reading the papers that the application is hopeless he should nonetheless give the applicant a fair opportunity to make out his case orally: Frey v Labrouche [2012] EWCA Civ 881, [2012] 1 WLR 3160. In support of judiciously robust judicial determination, however, Lord Neuberger MR at [41] and [42] in that case observed:

'This decision should not have the effect of deterring first instance judges from being properly robust. For instance, if, before coming into court, a judge has formed a preliminary view on some or all the points at issue, there is nothing wrong with his expressing that view to the parties, provided that he makes it clear that it is only a provisional view and that he will give, and then does give, them (or at least the party he is provisionally against) the opportunity to try and dissuade him from his view. Equally, if he is satisfied that a particular issue can be disposed of on the basis of one of several points which have been raised, there is no reason why he cannot tell the parties that he provisionally considers that he need not hear argument on the other points, provided, again, that the parties are given the opportunity to persuade him that he should decide one or more of those other points.
Further, on procedural and case management issues, trial judges should be encouraged to be robust. While it is the duty of this court to reverse a decision if it is wrong, that duty is only to be invoked when the decision is one which no reasonable judge could have arrived at, or was one arrived [at] only by taking irrelevant material into account and/or by ignoring relevant material. It is not enough for an appellant to satisfy an appellate court merely that it would, let alone that it might, have reached a different conclusion from the judge. Even before the Woolf reforms, robustness of approach in procedural and case management decisions should have been supported, and now we are about to embark on the Jackson reforms, robustness in such cases is to be applauded.'

4.54 On a strike out application under CPR rule 3.4 the proportionality of the sanction of strike out is itself in issue whereas on an application for relief under rule 3.9 the basis is that the sanction was properly imposed. Nonetheless on a strike out application the principles developed in relation to rule 3.9 are relevant and important: Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607 (see below for those principles).

4.55 A reported example of a failed application for a strike out is Abuchian v Maksoud [2014] EWHC 3104 (Fam).
[continues to paragraph 4.99]

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