EL v ML  EWFC 4315 February 2023
Published: 03/04/2023 09:00
HHJ Hess. Final hearing in relation to W’s application for permission to appeal a consent order from March 2021 which varied a final financial remedy order from 2019.
Initial proceedings concluded in 2019, W made an application for enforcement of periodical payments in 2020 and H cross applied for variation downwards as he was then unemployed. Following disclosure, the W withdrew her application for enforcement and the parties drafted a consent order reducing periodical payments to nominal and discharging the child periodical payments but leaving the capital parts of the order intact. That order was approved by a judge without the completion or filing of a D81 or the attendance of either party at court.
In early 2022, W applied for variation/capitalisation of the periodical payments order. F provided disclosure and W withdrew her application following legal advice.
In late 2022, W applied to set aside the earlier consent order, primarily on the basis that the D81 was absent. W’s application stated that the judge should have declined to make the order and, amongst other things, joined the children as parties and sought their views in relation to the discharge of the school fees order. The W’s application was found to have waived privilege in relation to advice surrounding her earlier applications, some of which was then disclosed.
Following an indication from the judge at the first hearing of her application, W applied for permission to appeal the March 2021 consent order (without an application for permission to appeal out of time). H applied for a limited civil restraint order against the W.
HHJ Hess agreed with the bald proposition of W’s application, i.e. that a D81 should have been filed, but ultimately considered that the W’s applications had no merit as it had been accepted that H was unemployed and the judge would have approved the consent order following the filing of a D81 in any event.
HHJ Hess treated the case as though there was an application for permission to appeal out of time, despite the lack of one, but dismissed that application on the basis that there was no reason given for the delay and the application ‘was totally without merit’. The issue of costs and civil restraint order to be dealt with at a further hearing.