King, David Richards and Moylan LJJ. The second in the trio of Potanina v Potanin decisions, these case summaries should be read in order. This one is the Court of Appeal decision where Lady Justice King handed down the unanimous decision, allowing W’s appeal against Mr Justice Cohen’s order setting aside the grant of leave to bring a claim under Part III of the Matrimonial and Family Proceedings Act 1984 (the 1984 Act). Mr Justice Cohen had, on an ex parte basis, granted W leave to apply for financial relief pursuant to Part III of the Act. At H’s set aside hearing, Mr Justice Cohen set aside the grant of leave and acceded to H’s application, and dismissed the application for leave to bring a claim under Part III of the 1984 Act.

General background

H and W both 58. Russian nationals. Married in 1983. Three children all over 18. Separation H says is 2007 and W says 2013. Divorced 2014. Throughout the marriage the parties lived in Russia.

During the marriage H acquired wealth and became ‘massively rich’.

The issuing of divorce proceedings in February 2014 led to a’ blizzard’ of litigation, including W appealing the divorce order. During the ‘blizzard’ the Russian courts found the year of separation to be 2007.

W was not entitled to any maintenance under Russian law.

In 2014 W obtained a UK investor visa and bought a house. W says she began living in London at the beginning of 2017. London has been her permanent home. Her application is therefore made pursuant to s 15(1)(b) on the basis of her habitual residence in England.

Procedural chronology

• 25 January 2019. W is granted leave to bring a claim under Part III of the 1984 Act at an ex parte hearing.
• H applied to have this set aside.
• 3–4 October 2019. Set Aside hearing.
• 8 November 2019. Cohen J made an order, whereby he set aside the order for leave and, on re-consideration of W’s application, refused to grant her leave.
• W appeals Cohen J’s 8 November 2019 order.
• 26–27 January 2021. Appeal Hearing.
• 13 May 2021. Handing down of Appeal Judgment.

Appeal summary

The grounds of appeal challenge, amongst other things, Cohen J’s findings as to W’s connection with this country (s 16(2)(a)–(c)); the financial benefit she has hitherto received (s 16(2)(d)); provision for any children (s 16(2)(e)); and her rights to financial relief in any other country (s 16(2)(f)). It was argued that the judge was being asked, in effect, to make significant findings of fact and/or to reach conclusions without the benefit of the oral evidence which would have been available to him if the application to set aside had been held over to the final hearing.

The appeal was not specifically directed at what was in the CA’s judgment a significant procedural irregularity. The principal focus was on the submission that the judge had erred in concluding that he had been misled on the evidence before him. The two issues were in the eyes of the CA, interwoven, because it was argued, not only that the judge was not misled, but also that the judge having failed to adjourn the matter to the full hearing, wrongly reached adverse conclusions and found that he had been misled without having heard oral evidence from the parties or the cross examination of expert witnesses in relation to the matters at issue.

It is of interest that at [50] the CA reflected that it had permitted too much argument about the rights and wrongs of the matters about which it is suggested that the wife misled the judge at the ex parte hearing. Resolving the dispute between the parties about these issues was not the task of the CA court. The CA should focus on whether the judge had fallen into error in his approach and conclusions in relation to the application to set aside, such that he made an error of law and was therefore wrong. The CA was not charged with rehearing the case before the judge.

Decision summary

Mr Justice Cohen had erred in embarking on a wholesale examination of the evidence in the way that he did. Agbaje remains good law and the issues which were raised therefore required the court to take the approach as directed in Agbaje which, given their complexity, should have been examined with the benefit of oral evidence at the trial of the Part III application; see [51].

The procedure for set aside hearings

An application to set aside should not be used as an opportunity to explore matters properly to be litigated at trial; see [39].

If it is necessary to have a very substantial or lengthy hearing to determine, for example, whether the court has been misled and that the leave should therefore be ‘set aside’, that will usually be an indication that there is not a readily identifiable ‘knock-out blow’ and that the application to set aside should, as required by Agbaje, be adjourned to be considered at trial: see Traversa v Freddi at [54]; see [39].

The task before the court hearing the set aside application was not to conduct an appeal from the granting of leave in the form of a rehearing, but to hear a short, sharp application to set aside leave on the basis that there was a ‘knock-out blow’ demonstrated either by reference to the fact that a decisive authority had been overlooked, or that the court had been misled; see [41].

Cohen J’s analysis

The judge’s analysis had been tainted by the procedure adopted at the set aside hearing, which on the one hand was too elaborate and lengthy, but on the other hand led to the making of serious adverse findings against the wife without the benefit of either oral evidence or any expert evidence as to Russian law that either party may have wished to call; see [87].

It may be that the judge would have refused permission for W to issue proceedings had the s 13 leave application been heard inter partes, but that was not the issue on appeal.

The defects identified by Cohen J

The CA held that the alleged deficits identified by the judge, even where established, could not be said objectively to have either misled the judge, or to have been sufficiently material to the issues which informed the grant of leave, to amount to a compelling reason to set aside the permission granted at the ex parte hearing; see [87].

Mr Justice Cohen had erred in embarking on a wholesale examination of the evidence in the way that he did. Agbaje remains good law and the issues which were raised therefore required the court to take the approach as directed in Agbaje which, given their complexity, should have been examined with the benefit of oral evidence at the trial of the Part III application; see [51].