MA v ROUX
[2024] EWHC 1917 (Fam)
Potanina v Potanin
31 January 2024
[2024] UKSC 3
Supreme Court
This case is about getting permission to start a financial claim. A lower court wrongly made it very hard to challenge that permission. The Supreme Court said everyone needs a fair chance to be heard, so the permission should be reconsidered fairly if challenged.
Key Facts
- •The case concerns the procedure for obtaining leave under section 13 of the 1984 Act to bring financial relief proceedings under Part III.
- •The leave application was initially made ex parte.
- •The husband applied to set aside the grant of leave.
- •The Court of Appeal applied a 'knock-out blow' test to set aside the leave, requiring a compelling reason.
- •The Supreme Court considered the history of the proceedings and the appropriate approach to leave applications and setting them aside.
Legal Principles
Fundamental principle of procedural justice that both sides should be heard.
Rule One for Judges (implied throughout the judgment)
The court may set aside an ex parte order on the application of the respondent.
Agbaje (Supreme Court)
On an application to set aside an order made without notice, the court must decide afresh whether the order should be made, hearing argument from both sides.
FPR rule 18.11
The threshold for granting leave under section 13 is 'substantial ground', meaning a 'solid' basis for the claim, higher than 'serious issue to be tried' or 'good arguable case'.
Agbaje (Supreme Court)
Proportionality is a key facet of the overriding objective in family proceedings.
Financial Remedies Practice 2022/23, para 1.8; B v B (Financial Orders: Proportionality) [2013] EWHC 1232 (Fam)
Outcomes
The Court of Appeal's decision to set aside the leave granted was wrong in law.
The Court of Appeal incorrectly applied a 'knock-out blow' test. FPR rule 18.11 requires a fresh decision after hearing both sides, without needing a 'compelling reason'.
The appeal is allowed, but issues raised in grounds 12 and 13 are remitted to the Court of Appeal.
The Court of Appeal did not address grounds 12 and 13, and those issues are not of general public importance.