MA v ROUX
[2024] EWHC 1917 (Fam)
EL v ML
15 February 2023
[2023] EWFC 43 (B)
Family Court
After a divorce, the ex-wife's new lawyer tried to get a past agreement changed due to a small paperwork mistake. A judge said the mistake didn't matter because the agreement was fair, and the lawyer wasted a lot of money on pointless court battles.
Key Facts
- •Financial remedies proceedings following the divorce of Ms EL (wife) and Mr ML (husband) in 2019.
- •2019 Order: Husband to pay 25% of net capital payments from SS Company and Carried Interests, spousal and child periodical payments.
- •Husband left SS Company in 2020, became unemployed, and defaulted on payments.
- •2020 Cross-Applications: Wife sought enforcement, husband sought variation; settled with a consent order (March 2021) reducing payments to nominal amounts.
- •2022 Application: Wife (litigant-in-person initially) applied for variation/capitalisation; withdrawn after legal advice.
- •Wife's new solicitor (Mr Burrows) sought to set aside the 2021 Consent Order due to procedural irregularities (lack of Form D81).
- •Applications before DJ Ashworth: Set aside application and strike out application by the husband.
- •Appeal application made by Mr Burrows.
- •Husband applied for a limited civil restraint order against the wife.
- •Significant legal costs incurred by both parties.
Legal Principles
Consent order process requires filing of Form D81, unless parties attend court.
FPR 2010, Rule 9.26
Judge is not a rubber stamp in approving consent orders; entitled to scrutinize but not obliged to play detective.
L v L [2008] 1 FLR 26
Set aside applications are appropriate only where no error of court is alleged.
FPR 2010, Rule 9.9A
Bad legal advice is not a valid ground for setting aside an order.
Harris v Manahan [1997] 1 FLR 205; L v L [2008] 1 FLR 26
Permission to appeal out of time requires consideration of delay, reasons, merits, and prejudice.
Van Stillevoldt v EL Carriers [1983] 1 WLR 207; Ross v Ross [1989] 2 FLR 257; MG v AG [2020] EWFC B49; Hussain v Hussain [2021] EWFC 13
Permission to appeal granted only where a real prospect of success or other compelling reason exists.
FPR 2010 Rule 30.3(7); AV v RM [2012] EWHC 1173 (Fam); Nasim v Nasim [2015] EWHC 2620 (Fam)
Outcomes
Wife's application to set aside the March 2021 order dismissed.
Technical imperfection (lack of Form D81) did not render the order unfair, given the circumstances and subsequent legal advice.
Wife's application for permission to appeal dismissed.
Appeal out of time, no real prospect of success, and no compelling reason to hear the appeal.
Husband's strike out application considered, but not necessary to determine given outcome of the set aside application.
Covers the same ground as the set aside application; would have been struck out had set aside not been addressed.