EL v ML
[2023] EWFC 43 (B)
BF v LE
31 July 2023
[2023] EWHC 2009 (Fam)
High Court
A wife tried to overturn a divorce financial order, claiming she lacked mental capacity and the judge should have given her extra help because of alleged abuse. The appeal was too late (16 months!), and the court said even if she was right, the outcome wouldn't have been different, so the order stands.
Key Facts
- •Appeal against District Judge Solomon's decision not to set aside District Judge Parry's order in financial remedy proceedings.
- •Wife (W) alleged domestic abuse, including coercive control and threats.
- •FDR hearing prevented reliance on 'conduct' issues.
- •W represented herself at the final hearing before DJ Parry, no special measures were in place.
- •W applied to set aside DJ Parry's order almost a year later, citing lack of capacity and absence of special measures.
- •Dr Schaapveld's report addressed W's capacity only on the date she signed the consent order (24 October 2019), not at the earlier hearing.
- •Application to appeal DJ Solomon's decision was made 16 months out of time.
- •W's appeal raised issues of delay, lack of capacity at the initial hearing, and absence of participation directions.
Legal Principles
Power to set aside a financial remedy order is limited to traditional grounds (fraud, material non-disclosure, certain mistakes, unforeseen events); it's not an alternative to appeal.
FPR 9.9A, PD9A, Akhmedova v Akmedov (no 6) [2020] EWHC 2235, CB v EB [2020] EWFC 72
Court has a proactive duty to consider whether participation directions/special measures are necessary, even if not requested by the parties, especially in cases involving alleged domestic abuse.
FPR 3A, PD3AA, K v L v M [2021] EWHC 3225 Fam, B v P [2022] EWFC B18, CM v IP [2022] EWHC 2755, Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8
Tests for granting an extension of time for appeal involve assessing the seriousness of the delay, reasons for the delay, and overall fairness. Denton v White [2014] 1 WLR 3296 principles apply.
Denton v White [2014] 1 WLR 3296, R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472
Mental capacity is decision-specific; having a mental disorder doesn't automatically mean lack of capacity. Presumption of capacity under MCA s.1(2).
Mental Capacity Act 2005, sections 1, 2, 3
Outcomes
Permission to appeal granted, but the appeal itself was refused.
Inordinate and inexcusable delay of 16 months, lack of merit in the substantive grounds of appeal.
Appeal on lack of mental capacity dismissed.
Ground should have been raised on appeal from DJ Parry's decision; Dr Schaapveld's report only addressed capacity on a later date; DJ Parry showed no concerns about capacity; W continued working as a solicitor; presumption of capacity not rebutted.
Appeal on absence of participation directions dismissed.
Ground should have been raised on appeal; while a proactive duty exists to consider special measures, their absence didn't lead to an unfair outcome or breach of natural justice in this case; allegations of abuse were tangential to the financial issues decided.