M v B [2025] EWFC 182

Judgment date: 25 June 2025

https://caselaw.nationalarchives.gov.uk/ewfc/2025/182

Sir Jonathan Cohen (sitting as a judge of the High Court). Financial remedy proceedings considering the court’s power to strike out applications under FPR 4.4, having regard to the effect of FPR 9.9A.

The strike-out application was brought by the wife (W) in response to the husband’s (H) renewed attempt to vary a consent order. The judgment engages with the contested procedural interface between FPR 9.9A, and recent case law regarding summary disposal of FR applications. This judgment affirms that while FPR 9.9A provides procedural structure, it does not displace the foundational reasoning in Vince and Roocroft; [27]–[34].

Background

H and W married in 2002 and began divorce and FR proceedings in 2017. A consent order dated 13 September 2018 required H to pay W £5.5m in three annual instalments; [2]. In 2020, following a material adverse change in circumstances, H applied to set aside the order under the Thwaite jurisdiction (Thwaite v Thwaite [1982] Fam 1, [1981] 2 FLR 280). The matter was listed for June 2021 but resolved by agreement prior to the hearing, reducing the sum owed by nearly £2m; [3].

On 6 November 2024, H issued a subsequent application to vary or discharge the order and remit arrears. He argued the 2021 order remained executory and that his financial position had deteriorated further. In particular, he cited the failure of his former business to proceed to an IPO, preventing him from realising the value of his shares.

In response, W applied to strike out the claim under FPR 4.4(1)(a) and (b) – [4]–[5] – as disclosing no reasonable grounds or constituting an abuse of process, citing H’s wilful default, the absence of new material since 2021, and the 20-month delay after the payment fell due; [11]. She noted that the 2021 order remained executory solely due to H’s breach.

The court was asked to determine whether FPR 9.9A and PD 9A para 13.8 (inserted into FPR by SI 2016/901) empower it to strike out an application to set aside or vary a FR order, despite the absence of a formal summary judgment mechanism in the FPR 2010; [21].

Legal framework and competing authorities

The judge traced the development of authority from Vince v Wyatt [2015] UKSC 14 and Roocroft v Ball [2016] EWCA Civ 1009, where the Court of Appeal held that strike-out powers under FPR 4.4 are of ‘limited reach’ and cannot be exercised on the basis of a lack of real prospects of success; [18]–[20]. Notably, Roocroft was heard on 5 July 2016 and judgment handed down on 14 October 2016, almost simultaneously with the commencement of FPR PD 9A para 13.8 in early October. The amendment was not considered in the Court of Appeal’s reasoning.

By contrast, Ma v Roux [2024] EWHC 1917 (Fam) interpreted FPR 9.9A and PD 9A para 13.8 as expanding the court’s powers to allow summary disposal based on prospects of success; [26]–[28]. However, the judge preferred the reasoning in AB v CD [2022] EWFC 116 and declined to follow Ma, observing that he was not content a practice direction could override Supreme Court authority or confer jurisdiction beyond that provided by rules or primary legislation; [29]–[33].

Abbreviated hearing

The judge considered whether the strike-out application could be determined by way of an abbreviated hearing but found this procedurally inappropriate and unfair. Citing Roocroft at [48], he affirmed that an abbreviated hearing requires proper notice, opportunity for submissions, and compliance with the principles in Sharland v Sharland [2015] UKSC 60 and Gohil v Gohil [2015] UKSC 61; [35]. He found the present hearing unsuitable due to its original purpose, W’s outstanding evidence, missing materials from 2020 and 2021, and insufficient time within the one-day listing; [36].

In consequence, a two-day hearing was listed before him, with directions for further evidence and no oral evidence unless otherwise ordered; [37].