The Ongoing Debate: Court's Power to Strike Out Applications to Set Aside Financial Remedy Consent Orders

In the realm of family law, the power of the court to strike out applications to set aside financial remedy consent orders remains a contentious issue. This debate has significant implications for clients involved in financial remedy proceedings, as it affects the predictability and efficiency of resolving disputes. The recent case of M v B EWFC 182 has brought this issue to the forefront, highlighting the need for further clarification from the Family Procedure Rule Committee or the appellate court. 

Background of the Debate

The case of M v B involved a financial remedy consent order requiring the husband to pay the wife £5.5 million. The husband applied to set aside the order under the Thwaite jurisdiction, leading to a dispute over whether the court could strike out his application summarily. The Family Court, presided over by Sir Jonathan Cohen, declined to strike out the husband's application, emphasising the need for a hearing, albeit an abbreviated one. 

Legal Framework and Case Law

The legal framework governing the striking out of applications in financial remedy proceedings is complex. Under paragraph 13.8 of Practice Direction 9A, the court has wide-ranging case management powers, including the ability to strike out or summarily dispose of applications to set aside financial remedy orders. However, the Family Procedure Rules (FPR) 9.9A do not explicitly address summary disposal, leading to differing interpretations by the courts.

In AB v CD. EWFC 116, Roberts J concluded that the court could reach its conclusions at an abbreviated hearing, supported by the overriding objective Conversely, Francis J, in MA v Roux EWHC 1917 (Fam), argued that the court could consider whether an application has a real prospect of success when exercising its powers under FPR 4.4(1)(a). This divergence in judicial opinion underscores the need for clarity in the rules.

Implications for Clients

For clients, the uncertainty surrounding the court's power to strike out applications has practical implications. On one hand, the ability to strike out applications could expedite proceedings and reduce legal costs, providing a quicker resolution to disputes. On the other hand, the risk of an application being struck out without a full hearing could disadvantage parties with legitimate claims, potentially leading to appeals and further delays. 

Clients must be aware of the current legal landscape and the potential for their applications to be summarily dismissed. Legal practitioners should advise clients on the likelihood of success and the strategic considerations involved in pursuing or defending against applications to set aside financial remedy orders.

Conclusion

The ongoing debate about the court's power to strike out applications to set aside financial remedy consent orders highlights the need for further guidance from the Family Procedure Rule Committee or the appellate court. Until such clarification is provided, clients and practitioners must navigate the complexities of the current legal framework, balancing the need for efficient dispute resolution with the protection of parties' rights to a fair hearing. The case of M v B serves as a reminder of the importance of judicial discretion and the potential impact of procedural rules on the outcome of financial remedy proceedings

Jamie Beland & Samantha Archer