It was settled in Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972 that the court cannot strike-out/give summary judgment on a legally recognisable application for a financial remedy order as an applicant is entitled to have such an application heard on its merits and it cannot therefore be dealt with summarily on the basis that it has no real prospect of success. The reasons for this are set out in the judgment of Lord Wilson of Culworth at [27]:

‘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 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(c) 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.’

Subsequently, in Roocroft v Ball [2017] 2 FLR 810 the Court of Appeal held that the approach set out in Wyatt v Vince applied to applications to strike out an application to set aside a financial remedy order in the same way as it applied to a substantive application for a financial remedy order.

An attempt in that case to distinguish strike out applications in the context of applications to set aside an order from those made within full financial remedy claims failed. Although at [43] Eleanor King LJ accepted that the former were not ‘subject to the same imperatives as are imposed by the application of section 25 of the Matrimonial Causes Act 1973 … (matters to which the court is to have regard in deciding how to exercise its powers)’, she referred at [44] to Lord Wilson’s comment at [27] that ‘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’ and stated that ‘[i]t follows that the rule, and therefore Lord Wilson’s observations, apply equally to an application to set aside a financial remedy consent order on grounds of material misrepresentation/non-disclosure as an application for financial remedy order’. This was then broadly repeated at [45]⁠(i) as being one of the ‘matters [that] can … be drawn from Wyatt v Vince’.

But is that the end of the matter? In Ma v Roux [2024] EWHC 1917 (Fam) Francis J heard an appeal from Her Honour Judge Reardon in which (following Wyatt v Vince and Roocroft v Ball) she determined that she did not have the power on the wife’s application to strike out or otherwise summarily determine the husband’s application to set aside a consent order on grounds the wife had been guilty of non-disclosure. Francis J framed the question as follows:

‘[1] This case today is concerned with whether the court has the power to strike out an application to set aside a consent order in financial remedy proceedings. Put another way, is there a power of summary determination of such an application in financial remedy proceedings? Or is the power to strike out limited to the category simply of legally unrecognisable claims?’

On the wife’s behalf it was argued at first instance and on appeal inter alia that King LJ wrongly interpreted the decision in Wyatt v Vince and hence Francis J (at [19]) ‘should therefore follow the guidance of the Supreme Court in Wyatt v Vince rather than of the Court of Appeal in Roocroft v Ball’.

Francis J, however, considered the position to be (at [20]) ‘something rather more nuanced’ than a conflicting decision between the Court of Appeal and the Supreme Court as he was considering:

‘King LJ’s interpretation in the Court of Appeal of Wyatt v Vince and whatever my view of her interpretation of Wyatt v Vince it seems to me to be absolutely clear that I have to follow what the Court of Appeal have said in relation to that interpretation.’

In analysing Ground 1 of the Grounds of Appeal (at [31]) that ‘the learned judge erred in law in following the Court of Appeal decision of Roocroft v Ball upon an application to set aside a financial remedy order’, Francis J stated:

1. at [31] ‘*Wyatt v Vince* was dealing with the summary determination of applications for a financial remedy order’;
2. at [32] ‘the Supreme Court decided unanimously that it would be inappropriate to strike out the wife’s claims without a hearing’ (for the reasons given at paragraph [27] of the judgment set out above);
3. at [34] ‘on the set aside application, the court is not deciding whether to exercise its powers under sections 23, 24, 24A, 24B or 24E of the Matrimonial Causes Act 1973. It is deciding whether to set aside an already made order and if so on what grounds’;
4. at [34] ‘Lord Wilson’s decision regarding the lack of any power of summary judgment was very clearly limited only to final financial remedy order applications’; and
5. at [35] and [36] that although at paragraph [27] of *Wyatt v Vince* Lord Wilson had said ‘that the power to strike out under Rule 4.4 applied equally to other applications that were not an application for a financial remedy order’, ‘the key to the reasoning in paragraph 27 is the duty that is imposed on the court to consider all of the matters set out in section 25 and that is not something that can be summarily determined’.

As a consequence (at [36]) Francis J stated that he disagreed with King LJ’s interpretation of this passage of Wyatt v Vince but ‘[h]aving considered this very carefully I have no doubt at all that I have to yield to the decision of the Court of Appeal on this’ because:

‘[37] As a judge of the High Court I am of course bound by the doctrine of precedent and although Mr Fairbank asserts forcefully that where there is a conflict between the Court of Appeal and the Supreme Court, I have to follow the Supreme Court, what I actually have here is an interpretation by the Court of Appeal of a decision of the Supreme Court with which I disagree. However, I am bound by that interpretation of the Court of Appeal of that Supreme Court decision.’

Did Lord Wilson mean to state at [27] of Vince v Wyatt that the court cannot strike out/give summary judgment on an application to set aside a consent order (as King LJ suggests) or were his comments ‘very clearly limited’ solely to applications for final financial remedy orders (as Francis J suggests)? Given that Francis J considered himself bound to follow the former interpretation – despite disagreeing with the same – a definitive answer to this question will need to wait for adjudication on another day.