TY v XA [2024] EWFC 9624 April 2024

Published: 20/05/2024 15:32

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/96.html

Moor J. Ripples from the decision in Potanin v Potanina [2024] UKSC 3. Mr Justice Moor reiterated that Potanin had not changed the basic test for the grant of leave to apply for financial relief under Part III, which should from now on be on notice. The test is as set out at section 13 of the 1984 Act. Potanin had stated that applying a test based on ‘compelling reasons’ or ‘knock-out blow’ was wrong.

Facts

Substantial history to the case: about 40% of the judgment is the summary of the litigation chronology and the ‘relevant’ history. The matter before Moor J was the second application to set aside the leave granted by Jenkins DJ on 24 April 2023.

  • 24 April 2023: Without Notice application. Jenkins DJ grants W leave to bring an application for financial provision following an overseas divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984.
  • 04 July 2023: First application to aside the leave granted, refused by Moor J under the Agbaje v Agbaje [2010] 1 AC 628 law at the time, namely that it was necessary to show a compelling reason or knock-out blow to be successful in a set aside application. Moor J permitted H to reapply if the Supreme Court decided the ‘knock-out blow’ test in Agbaje was wrong.
  • 28 November 2023: Court of Appeal refused H’s application for permission to appeal, Moylan LJ.
  • 31 January 2024: Supreme Court’s judgment in Potanin v Potanina concluded that the ‘knock-out blow’ test in Agbaje was wrong.
  • 8 February 2004: H reapplies to set aside the leave granted on 24 April 2023.
  • 24 April 2024: Moor J, in a written judgment, dismisses H’s application to set aside.

H (40) now lives in London, Austrian by birth. W (39) now lives in London, French by birth. Pre-nup executed two days before the marriage. Married June 2012 after cohabiting from 2009. Two children of the family (9 and 7). Separation in 2018. German separation deed signed in July 2019. German divorce granted in December 2019. H moved to London in April/May 2021. W challenged the separation deed in December 2021. H remarried in March 2023; there are two children from the second marriage. In March 2023, W applied for leave to bring an application for financial provision following an overseas divorce. In March 2023 a German court granted W permission to relocate to the UK, relocation opposed by H. W relocated to London in May 2023. In May 2023 H applied to set aside the grant of leave. H’s first application heard and dismissed on 4 July 2023 by Moor J, who at the same hearing dealt with interim maintenance, legal fees funding for W, and listing the FDR.

Conclusions

  1. In the absence of consent, applications for a grant of leave to apply for financial relief under Part III will be heard on notice; [37].
  2. Potanin has not changed the basic test for the grant of leave to apply for financial relief under Part III; [34]. The test remains as set out at s 13 of the Matrimonial and Family Proceedings Act 1984 as interpreted in Agbaje; [34]. It was wrong to apply a test based on ‘compelling reasons’ or ‘knock-out blow’; [37]. The threshold test is whether the prospective applicant can show a real prospect of success, but, at the same time, the court must continue to guard against the leave or set-aside hearing becoming a proxy for the final trial; [35]. The guidance from Lord Leggatt JSC in Potanin was that an application for leave should only fail if it is of insufficient merit to avoid a summary dismissal. The court should perform a reverse summary judgment.
  3. The applicant must satisfy the court that the case is suitable for a grant of leave; [37]. The prospective applicant must establish that they have a substantial – which means ‘solid’ – ground for bringing a claim for financial relief; [33]–[34].
  4. At para [36] Moor J states:
    ‘It follows that a summary dismissal of a Part III claim, which means a refusal of leave to apply, will only happen in circumstances where either the court concludes that, as a matter of law, even if the prospective applicant were to prove all the disputed facts in her favour, the claim would be bound to fail, or that the factual basis for the claim is fanciful because it is entirely without substance or conflicts with the underlying documents in the case.’
  5. When considering the factual disputes, the judge, at the set aside application, the court, should consider whether there is a reasonable prospect of success. Where one party argues that the other’s case is ‘fanciful’ or ‘bound to fail’ and there is a dispute of fact and law, a judge is entitled to decide that all matters in issue should be decided together at a final hearing and have the benefit of evidence which has been tested; [54].
  6. It was possible that no Part III provision would be made at a final hearing. The grant of leave was akin to the grant of permission to appeal on the basis there is a real prospect of success, but actually decides the appeal should not succeed; [73].

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