Ma v Roux: Yes, You Can Strike Out a Set Aside Application

Published: 08/01/2025 13:21

This is a response to the FRJ blog post by Nicholas Allen KC and Philip Tait, ‘Ma v Roux: Can You Strike Out a Set Aside Application?’ (25 September 2024), which posed the question as to whether the court is empowered to strike out an application to set aside a financial remedy order. In that article the authors carefully set out the background to this issue. They quote paragraph 27 of Lord Wilson of Cusworth’s judgment in the Supreme Court decision of Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972, which is key to an understanding of the central issue:

‘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.’

Lord Wilson referred to the obligation upon the court to consider the factors set out in s 25 of the Matrimonial Causes Act 1973 before determining an application for a financial remedy order as being inimical to any power to strike out an application for financial remedies on a ‘merits’ basis under FPR 4.4(1).

This raises the thorny issue of whether the same limitations upon the exercise of the court’s power under rule 4.4(1) (striking out a statement of case) apply to an application under FPR 9.9A to set aside a financial remedy order as they do to an application to strike out a final financial remedy order proper.

Rule 4.4(1) reads as follows:

Power to strike out a statement of case
4.4
(1) Except in proceedings to which Parts 12 to 14 apply, the court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;
(c) that there has been a failure to comply with a rule, practice direction or court order; or
(d) in relation to applications for matrimonial and civil partnership orders and answers to such applications, that the parties to the proceedings consent.’

In Roocroft v Ball [2017] 2 FLR 810, Eleanor King LJ held that the same limitations which Lord Wilson had articulated as applying to an application a financial remedy order (proper) did indeed apply to an application under FPR 9.9A. This created the practical difficulty of obliging courts to entertain all such applications through to a contested final hearing, absent earlier settlement – which, because of the litigation pressures involved, might likely lead to settlement based less on merits than upon costs considerations.

In Ma v Roux [2024] EWHC 1917 (Fam), the authors had the opportunity to pursue this question to appeal at High Court level without having to overcome the very real practical difficulty of challenging the Court of Appeal decision in the Supreme Court.

The starting point was Francis J disagreeing with King LJ on the central question of interpreting paragraph 27 of Lord Wilson’s judgment:

‘[34] Mr Fairbank asserts, and I agree with him, that 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. King LJ quoted in her judgment in the Roocroft v Ball case part of the words of paragraph 27 [of Wyatt v Vince] which I have just read out. Mr Fairbank asserts, and I agree, that Lord Wilson’s decision regarding the lack of any power of summary judgment was very clearly limited only to final financial remedy order applications. …
[36] … I do take the view, as articulated by Mr Fairbank, that 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 [of the 1973 Act] and that is not something that can be summarily determined. I have to consider very carefully where that places me because what I have effectively just said, and I say it with the very greatest of respect, is that I disagree with King LJ’s interpretation of this passage of Wyatt v Vince. Having 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.’

Unfortunately, that is where the analysis of my learned colleagues stopped, with their concluding that ‘a definitive answer to this question will need to wait for adjudication on another day’.

Fortunately, that is not where Francis J stopped. Given that it was likely that Francis J would find himself bound by precedent, we prepared two further arguments which would give him a route to the answer we sought.

Firstly, we argued that the Supreme Court decision, correctly interpreted, was binding upon the lower courts and Roocroft v Ball could thereby be distinguished. This argument was rejected on the following basis:

‘[37] … 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.’

The second argument was that neither Wyatt v Vince nor Roocroft v Ball considered rule 9.9A or its associated practice direction provision, PD 9A, and in particular paragraph 13.8, because neither was in force at the time. Rule 9.9A was inserted by the Family Procedure (Amendment No. 2) Rules 2016 and came into force on 3 October 2016.

PD 9A, para 13.8 reads (in part):

‘The court has a full range of case management powers and considerable discretion as to how to determine an application to set aside a financial remedy order, including where appropriate the power to strike out or summarily dispose of an application to set aside.’ (Emphasis added.)

It is clearly relevant.

The timings were carefully considered by Roberts J in AB v CD [2022] EWFC 116:

‘[72] The change effected by the introduction of FPR PD 9A para 13.8 came into effect at the beginning of October 2016. Roocroft v Ball (above) had been heard in the Court of Appeal on 5 July 2016 prior to the implementation of the rule change. There is no reference in the judgment to any argument on this point. The legal arguments advanced on that occasion through counsel, quite properly, were focussed on existing law and procedure. Judgment was reserved and handed down by the Court of Appeal on 14 October 2016 shortly after the start of the new legal term. The new rule had then been in effect for less than two weeks. It had no retrospective effect and was not in force when the original decision was made and/or when the appeal against the trial judge’s decision was heard. Accordingly, we do not have the benefit of any consideration by the Court of Appeal in relation to how the words in para 13.8 “summarily dispose” should be construed in the context of a strike-out application.’

Francis J considered that the change in the rules, post-dating as it did the decisions in both Wyatt v Vince and Roocroft v Ball, gave him the power to strike out an application under FPR 9.9A to set aside a financial remedy order. He reasoned as follows:

‘[42] Mr Fairbank asserts that both Wyatt v Vince and Roocroft v Ball were concerned with interpretation of a Rule 4.4(1) and that neither Rule 9.9A nor paragraph 13.8 were, or could have been of course, considered in Wyatt v Vince because they were not in force. Mr Fairbank goes on to assert, and this really is crucial to [appeal] ground two:
“Had they been in force, it is inconceivable that the same principles would have been applied to their interpretation in the context of a set aside application. That is because the whole rationale behind Lord Wilson’s opinion was that the court’s obligation to exercise its wider purview, as Lord Brandon enunciated in Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424, arose in the context of a final financial remedies order. It is the last stage of the court’s quasi-inquisitorial jurisdiction on such an application.”’
‘46⁠. At the outset of this judgment, I stated that the issue before the court is as follows:
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?
47⁠. In my judgment, the appropriate test to be applied in such cases is as follows:
1⁠. When considering whether to strike out an application to set aside a financial remedies order made under FPR 9.9A, the court may have regard to all matters set out in FPR 4.4(1)(a) to (d) and is not constrained in the same manner that an application to strike out an application for a final financial remedies order is, pursuant to Wyatt v Vince [2015] UKSC 2015. This means when exercising its powers under 4.4(1)(a) the Court may consider whether the application has a real prospect of success.
2⁠. The Court retains its full range of case management powers as set out in the PD 9A para 13.8 which includes, where appropriate, the power to strike out or summarily dispose of an application to set aside a financial remedies order made under FPR 9.9A and these powers may be exercised with reference to [real] prospects of success.
48⁠. … I agree with Mr Fairbank’s interpretation of the legal position. I agree that the position is now different from that which pertained when the Court of Appeal considered the position as they did in Roocroft v Ball. I have already said that I think, with the greatest respect, I might have come to alternative conclusion about that but that is irrelevant as that I am bound by a decision of the Court of Appeal. However, I am dealing here with the interpretation of new Rules and a new Practice Direction that did not exist at that time and so I find that am entitled to say that these new Rules and this new Practice Direction are different; and that, accordingly, I agree with Mr Fairbank’s assertion that the judge erred in law by not distinguishing Roocroft v Ball on the basis that FPR 2010, Rule 9.9A and PD 9A came into force after Roocroft v Ball was decided and there is no reference to those provisions therein.’

The appeal was allowed on that basis. The result is that the High Court has clarified that PD 9A, para 13.8 applies with full force. No longer are the courts bound to allow set-aside applications to proceed all the way to final hearing. There is a power to strike out and, contrary to the conclusion of the previous blog article, the court did make a decision on this important matter of practice and procedure, which will hopefully result in a saving of significant court time and expense – particularly for innocent respondents to such applications.

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