RL v NL  EWFC 759 May 2023
Published: 03/07/2023 08:39
HHJ Madeleine Reardon KC. Striking out of Husband’s application to set aside a financial remedy order made in 1995. The FR order provided that H was to transfer his interest in FMH to W and thereafter there was to be a clean break, but the transfer never happened. Mortgage lender no longer existed and W could not identify to whom mortgage had been sold. There had been proceedings in 2007 for a judge to sign the TR1 as lender not engaging, but these did not appear to have been concluded nor the house transferred. The 1995 court file had been destroyed in accordance with HMCTS’ document retention policy.
Judge raised issue of whether H’s application should be struck out under FPR 4.4 as disclosing no reasonable grounds for bringing the application. Wyatt v Vince  UKSC 14 held that in the absence of any power of summary judgment in the FPR, FPR 4.4 should be construed without reference to whether or not the application had a real prospect of success, but instead was about whether the application was ‘legally recognisable’. Roofcroft v Ball  2 FLR 811 applied this to strike outs of applications to set aside financial remedy orders.
- H argued that the order was statute barred under the Limitation Act 1980; this was incorrect as the Limitation Act 1980 could not prevent enforcement.
- H also argued that the order had been procured by fraud or lack of valid consent, in that in the FR proceedings, which had been resolved by consent, W had argued that H had undisclosed properties abroad. H’s solicitor was unable or unwilling to explain the evidential basis of the fraud allegation, as simply alleging other assets existed was not fraudulent.
- H appeared to be arguing both that he had no knowledge of the order until it was made (lack of consent) and that he did know but the proceedings were vitiated by fraud. This was inconsistent.
- W was in person and while she was prepared to agree a 50-50 split of the house proceeds with H after talking to H’s solicitor while at court, such agreement could be the result of undue pressure or it could be because H’s solicitor misunderstood the law: more than once he had referred to the need to reach an agreement or settlement, but the 1995 order was a final resolution. W had not known that she did not have to agree to it or that the 1995 order remained in force and would remain in force unless a court said otherwise.
- There had been a 27-year delay in bringing these proceedings which H had not adequately explained.
Given that parts of H’s application had no basis in law, his assertions were inconsistent and contradictory and it was impossible to make sense of the documents filed on his behalf, H’s application was struck out as disclosing no reasonable grounds for bringing the claim.