CA-2024-001698 - [2025] EWCA Civ 1136

Before turning to the judgments in the instant case, it is appropriate and helpful to consider briefly the Supreme Court’s judgment in Agbaje. It is not necessary for me to reproduce the background facts or litigation history of that case; this is, in any event, set out in some detail by Lord Leggatt at [46] to [57] of Potanina (SC).

Agbaje remains the leading authority on the court’s proper approach to deciding whether to make an order for financial relief under Part III of the 1984 Act. Lord Leggatt confirmed this (see Potanina (SC) at [55]).

In Agbaje, Lord Collins gave the judgment of the court. One of the key paragraphs of his judgment, often cited in Part III cases, is paragraph [33]. It is a paragraph of two halves. The first half of the paragraph contains the court’s view about the threshold for an application for leave under Part III, as follows:

“In the present context the principal object of the filter mechanism [in section 13] is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than “serious issue to be tried” or “good arguable case” found in other contexts. It is perhaps best expressed by saying that in this context “substantial” means “solid”…”

While the final sentence of this section remains unchallenged (i.e., “substantial” means “solid”), the balance of this first half of the paragraph has now been materially supplanted by Lord Leggatt’s comments in Potanina (SC).

The second half of the same paragraph (Agbaje at [33]) contains the court’s discussion of the procedure for Part III 1984 Act applications, and specifically the approach to setting aside leave. It reads as follows:

“Once a judge has given reasons for deciding at the ex parte stage that the threshold has been crossed, the approach to setting aside leave should be the same as the approach to setting aside permission to appeal in the Civil Procedure Rules, where (by contrast with the Family Proceedings Rules) there is an express power to set aside, but which may only be exercised where there is a compelling reason to do so: CPR r 52.9(2). In practice in the Court of Appeal the power is only exercised where some decisive authority has been overlooked so that the appeal is bound to fail, or where the court has been misled: Barings Bank plc v Coopers & Lybrand [2002] EWCA Civ 1155; Nathan v Smilovitch [2007] EWCA Civ 759. In an application under section 13, unless it is clear that the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn an application to set aside to be heard with the substantive application.”

The approach laid out in this second half of paragraph [33] was successfully challenged by the husband in the appeal in this case in the Supreme Court (the point not having been previously taken in the appeal to this court) and is now effectively substituted by the majority judgment in Potanina (SC). Lord Leggatt explained the basis for departing from the views of Lord Collins in the second half of [33] (reproduced at §33 above) as follows:

In other respects, the approach to Part III applications laid down by Agbaje has not always proved to be straightforward in practice; in that regard it is useful to look at this court’s judgment in Zimin v Zimina [2017] EWCA Civ 1429 (‘Zimin’), where King LJ summarised at [47] several key points from Agbaje which she identified as being relevant at least “for the purposes of [that] case”. Among the points which she highlighted, of relevance to the instant case, were: