It is not every day that you see the President of the Family Division have to consider whether a Practice Direction is, in part, ultra vires. This is one of those days.
Re CS v ACS and Another 2015
The case hinged on the legal mechanisms for challenging a consent order.
The language of Practice Direction 30A (on appeals) is very very stark
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” (emphasis added).
So, the only route is by appeal.
section 31F(3) of the Matrimonial and Family Proceedings Act 1984 (as inserted by the Crimes and Courts Act 2013) provides that:
“Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.”
However, section 31F(6) 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(c) power to vary an order with effect from when it was originally made.”
Rule 4.1(6) of the Family Procedure Rules 2010, which is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, provides that:
“A power of the court under these rules to make an order includes a power to vary or revoke the order.”
So that’s a statutory mechanism to invite a Court to vary, suspend, rescind or revive any order made by it.
There are also a line of authorities (including marvellously one named Tibbles) showing that there are two routes – either appeal, or application to the original Judge to rescind or set aside the original order (there are limitations to that power – either material change of circumstances, or establishing that the factual basis on which the order was made was incorrect – the classic example being ancillary relief cases where financial agreement was reached and people learn later that there had been concealment of substantial assets which make the consent order unfair)
So, which is right?
- Mr Brunsdon Tully takes his stand on PD30A, para 14.1. He points to Financial Remedies Practice 2015 where the editors, who include both Sir Peter Singer and Mostyn J, suggest (para 4.8) that the old cases suggesting that such applications could be made at first instance “are all now overreached” and (para 30.97) that “that single short sentence in PD30A had rendered otiose a great deal of sterile case law”. In previous editions the editors had added “This long overdue reform is much to be welcomed.” Mostyn J has expressed similar views judicially (see below).
- Ms Sharghy and Mr Hubbard point to the more sceptical view expressed by the editors of Dictionary of Financial Remedies, 2015 edition, page 65, where, after saying that “There is an element of confusion about the appropriate way of launching an application of this nature”, they opine that “the most likely solution” is an application under FPR 4.1(6).
- Following the hearing it occurred to me that there might be a question as to whether the final sentence of PD30A, para 14.1, was ultra vires. On 21 March 2015 I sent counsel a draft judgment setting out my preliminary conclusion that it was ultra vires. I invited counsel to make any further submissions they wished. Both Mr Brunsdon Tully and Ms Sharghy and Mr Hubbard availed themselves of the opportunity.
- The power to make Practice Directions in relation to family proceedings is conferred by section 81 of the Courts Act 2003. Section 81(1) confers power to make directions as to “practice and procedure”. Section 81(2A) provides that directions as to the practice and procedure of any relevant court in family proceedings “may provide for any matter which … may be provided for by Civil Procedure Rules.” As Mr Brunsdon Tully points out, PD30A was made by the then President of the Family Division in accordance with Schedule 2 to the Constitutional Reform Act 2005 and approved by the Parliamentary Under Secretary of State.
As can be seen above, the PD was made by the former President Wall LJ and approved by the Minister. Consideration that both acted ultra vires in relation to that passage is significant.
Let us have a quick gander at the legal arguments (there’s much much much more of this, I’ve tried to grab the bits where they are distilled)
- Mr Brunsdon Tully submits that, since FPR 4.1(6) is identical to CPR 3.1(7), there is no reason why the principle spelt out by Hughes LJ should not apply equally in family cases. In particular, he says, there can be no question of the final sentence of PD30A, para 14.1, being ultra vires, for all it does is to bring the limited class of case to which it applies into line with the true meaning and effect of CPR 3.1(7), and thus of FPR 4.1(6), as explained in Roult.
- He adds three supplemental submissions. First, he submits that the final sentence of PD30A, para 14.1, does not encroach on the right of a litigant to apply to the court or on the substantive legal remedies available to a litigant if material non-disclosure is proved; it merely stipulates the procedural route, namely appeal, under which all these remedies are available. I cannot accept that: it encroaches upon the right of a litigant to apply to the court without first obtaining permission. Secondly, he submits that the power of the family court to exercise its powers under section 31F(6) is not fettered, either by FPR 4.1(6) or by the final sentence of PD30A, para 14.1, because an appeal from a district judge sitting in the family court lies to another judge, either a Circuit Judge or a judge of the High Court, of the family court. This, however, as Ms Sharghy and Mr Hubbard point out, overlooks the fact that the powers conferred by section 31F(6) of the 1984 Act include powers to “vary, suspend [or] rescind” any order. Thirdly, he submits that the final sentence of PD30A, para 14.1, which is the relevant provision in issue here, is not the rule that imposes the requirement that the litigant can proceed only with permission, and in any event a permission requirement is not a fetter or encroachment on the court’s powers such as to lead to a conclusion that the final sentence of PD30A, para 14.1, is ultra vires. The first part of this is, with respect, legal sophistry: since any appeal requires permission, a provision that challenge can only be made by way of an appeal is, in its effect, a provision imposing a requirement that the litigant can proceed only with permission. I have already said that I do not accept the argument that the final sentence of PD30A, para 14.1, does not fetter or encroach on the rights of the litigant or, consequently, on the powers of the court.
- In response, Ms Sharghy and Mr Hubbard submit, by reference to more recent authorities, that Mr Brunsdon Tully reads more than is warranted into Roult. They submit that the final sentence of PD30A, para 14.1, purports to abrogate what they say is a long-established and indeed recently recognised right to challenge, at first instance, and without being subjected to any sort of prior filter by way of application for leave (see Re C (Financial Provision: Leave to Appeal)  2 FLR 799, 801), an order such as the one I am concerned with here. They submit that this right is recognised by both section 31F(6) and FPR 4.1(6). They point to Binks v Securicor Omega Express Ltd  EWCA Civ 993, para 8, and Brennan v ECO Composting Ltd  EWHC 3153 (QB),  1 WLR 773, para 28, as showing that in case of conflict between a rule and a practice direction, the practice direction must yield to the rule.
In my new technique of establishing whose argument is best – where I take the names of the authorities that each relies on and decide which of those sound more intriguing, I would rule that Binks, and Eco Composting are going to beat Roult. Over a period of time, I hope to demonstrate that this methodology is (a) dazzlingly accurate and (b) if adopted wholesale would lead to really interesting law reports with mind-boggling case names being pressed into service by each side. [If anyone can successfully work “Four Exotic Dancers versus Spearmint Rhino and the Wild Goose 2009” or “Death v Graves 2006” into their skeletons, they richly deserve a victory]
The President used more established methodology in deciding which argument was correct.
- In the light of this survey of the authorities, I conclude that the decision in Roult will not bear the weight of the argument that Mr Brunsdon Tully seeks to derive from it. In common with Mostyn J in In re F, I read the decisions of the Court of Appeal in Musa v Karim, Sharland v Sharland and Gohil v Gohil (No 2) as demonstrating that FPR 4.1(6) continues to permit what had long been established, namely that an application such as the one being made here by the wife can be made to the judge at first instance.
- What then of the final sentence of PD30A, para 14.1? In my judgment, and with all respect to the makers of PD30A, it was ultra vires their powers. And if that is so, then I can without more ado say so and treat it as a nullity: compare General Mediterranean Holdings SA v Patel and Another  1 WLR 272, where, in the course of ordinary proceedings in the Queen’s Bench Division, CPR rule 48.7(3) was held to be ultra vires. (I make clear that I refer to this case, which was very different from the present case, not in support of my conclusion that the final sentence of PD30A, para 14.1, was ultra vires but only as to the procedural consequences which flow from such a finding.)
- There are essentially two reasons which lead me to this conclusion. First, and whatever the exact ambit of the phrase “practice and procedure” in section 81(1) of the 2003 Act, it cannot in my judgment extend, as here, to 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)). Secondly, there is, for the reasons given by Ms Sharghy and Mr Hubbard, a conflict between, on the one hand, the statute and the rule and, on the other hand, the practice direction, which requires the latter to yield to the former.
- It follows, in my judgment, that the wife is entitled to proceed as she has and that she does not require the permission of the court to do so.
- More than 25 years after Ward J’s first complaint, too little has yet been done to remedy matters. The continuing complexity of the law is exemplified by the necessarily detailed analysis of the point by the editors of Financial Remedies Practice 2015, paras 4.5-4.17. The continuing lack of clarity is illustrated by my analysis in this judgment. It is profoundly unsatisfactory that the courts should still have to take up so much of their time and their litigants’ resources dealing with such matters. The final Report of the Financial Remedies Working Group, 15 December 2014, expressed the view (para 13) that “clarification of the procedures for re-opening first instance orders in financial remedy proceedings is required” and said that it “would strongly support amendments to the Family Procedure Rules for that purpose.” I doubt that anyone could possibly disagree. Remedial work is now a matter of pressing urgency, unless we are complacently to condemn another generation of litigants to a procedural maze which is a discredit to family justice. I add only this. The Working Party may wish to consider the extent to which these problems are capable of solution by either Rule or Practice Direction. It may be that primary legislation is required
Until that time, both routes are potentially open, and it will depend on the circumstances which is the best approach. The rest of PD 30A remains valid, but you can draw a line through para 14.1 now.