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

Before turning to my discussion and analysis of Cohen J’s judgment (Potanina (FD2)), I wish to discuss briefly the import of section 13 of the 1984 Act, and the test for leave.

As I have earlier outlined in this judgment (§9) section 13 provides that there must be “substantial ground” for the making of an application before leave will be granted. “Substantial” in this regard means “solid” (per Agbaje), and the Supreme Court in Potanina (SC) casts no doubt upon what it described as “the primary guidance” in this regard, contained within the first half of [33] of Agbaje.

That said, at Potanina (SC) at [89] – [92], Lord Leggatt (speaking for the whole court in this regard: see the support offered by the minority at [110]) offered “clarification” of the threshold test in Agbaje. As I have indicated above, this led to a predictable debate at the hearing of this appeal as to whether, in light of the views expressed by Lord Leggatt on behalf of the Supreme Court, the test of what is substantial or solid is now to be regarded as higher or lower than that discussed in Agbaje and widely used since (see §62 and §63 above).

Lord Leggatt at [89] of Potanina (SC) confirmed that he did not wish to cast doubt on the reference to the use of the word ‘solid’ to describe ‘substantial’; he positioned the threshold as “higher than merely satisfying the court that the claim is not totally without merit or abusive” (ibid at [89]). It will be remembered that at [33] of Agbaje (see §32 above) Lord Collins had described the test of what is ‘solid’ by indicating that it was higher than establishing a good arguable case; Lord Leggatt questioned that (at [90]) by indicating that he did not regard it as “apposite” to apply the “higher threshold” namely “the more demanding test of a “good arguable case”” (emphasis added). For this reason, Mr Howard felt fortified, and with some justification it seems to me, in arguing that the threshold test under section 13 of the 1984 Act described by Lord Leggatt sets a slightly lower bar than the test originally advanced by Lord Collins in Agbaje.

This analysis is, to my mind, reinforced by Lord Leggatt’s further comparison (at Potanina (SC) at [91]) with the reverse summary judgment test which “may also assist in clarifying the scope of the inquiry in determining whether leave should be granted under section 13”. In this regard, he had referenced Lord Hope’s speech in the case of Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 at [95] (‘Three Rivers’: (see the extract at §58 above).

His view was that the test to be applied is akin to “whether the claim has a ‘real prospect of success’” (Potanina (SC) at [89]). He suggested (also at [89]) that the closest analogy:

“… seems to me to be with other contexts in which a court has to decide whether a claim should be allowed to proceed to a full hearing or should be dismissed summarily”.

Lord Briggs described this as the “reverse summary judgment test” (at [109]). Lord Leggatt contemplated ([92]) that the court would consider whether there was a real prospect that more evidence would be available at trial through disclosure “or otherwise”, and in this sense there is an element of forward perspective on an application for leave.

It has been often said that the legislative purpose of Part III of the 1984 Act is to alleviate the adverse consequences of no, or no adequate, financial provision having been made by a foreign court in a situation where the parties or one of them have a recognisable jurisdictional status (habitual residence or domicile) in England and Wales, and where there is a connection with England and Wales (see section 16(2)(a) of the 1984 Act) (see Agbaje at [71] and Potanina (SC) at [6]). It will be noted that in Agbaje itself at [71], and in Zimin at [47] the adjective ‘substantial’ found its way into the test to qualify the word ‘connection’. In the 1984 Act, the adjective ‘substantial’ qualifies ‘ground’ in section 13, but it does not qualify ‘connection’ in section 16 (ibid). This contrasts with the position under Part IV of the 1984 Act (which sets out the mirror provision for financial provision in Scotland following a foreign divorce), where the phrase ‘substantial connection’ does in fact appear (see section 28(3)(e) of the 1984 Act).

Lord Collins’ use of the phrase ‘substantial connection’ in paragraph [71] of Agbaje appears in fact to hark back to an earlier discussion in his judgment about the rule in Indyka v Indyka [1969] 1 AC 33; this rule actually relates to something quite different – i.e., recognition of a foreign divorce where the marriage had a ‘real and substantial connection’ with the foreign country. When the Supreme Court recently looked at the issue of ‘connection’ in this case, it did not qualify the term with the use of the word ‘substantial’, except when quoting directly from [71] in Agbaje.

In my judgment, the adjective ‘substantial’ should not attach as a matter of course to the noun ‘connection’ when considering section 16 of the 1984 Act; this is not the language of the 1984 Act as it applies in England and Wales. Were ‘substantial’ routinely to qualify ‘connection’, this would in my judgment significantly constrain the “flexible approach” of the court to Part III cases which Lord Collins discussed and indeed supported at [70] in Agbaje. Flexibility is key; as he himself said:

“The whole point of the factors in section 16(2) is to enable the court to weigh the connections of England against the connections with the foreign jurisdiction” (Agbaje at [52]);

and

“There will be some cases, with a strong English connection, where it will be appropriate to ask what provision would have been made had the divorce been granted in England. There will be other cases where the connection is not strong and a spouse has received adequate provision from the foreign court. Then it will not be appropriate for Part III to be used simply as a tool to "top-up" that provision to that which she would have received in an English divorce.” (Agbaje at [70]).

Put shortly, this flexibility does not work if ‘substantial’ is routinely placed before ‘connection’.

Finally, while I acknowledge that hardship and injustice are not preconditions to the satisfaction of the test for leave (see §35(ii) above), it is long established that they may well be relevant. In no fewer than three separate places in Lord Collins’ judgment in Agbaje (i.e., at [44], [61] and [72]) he acknowledged the relevance of hardship and injustice to a Part III claim, and accepted that they “may be taken into account” for the purpose of determining whether it is appropriate that the English court should make an order (section 16 of the 1984 Act), just as they can be taken into account under section 18 of the 1984 Act. Lord Collins in Agbaje at [72] said that if either injustice or hardship is “present, it may make it appropriate, in the light of all the circumstances, for an order to be made”; the Supreme Court in the instant case did not challenge this. Interestingly, and of course acknowledging the fact-specific nature of all these cases, it is notable that in Agbaje the large disparity between what the wife had received in Nigeria and what she would have received in England, coupled with the large disparity between what the husband received and what the wife received, were such, in the Supreme Court’s finding, “as to create real hardship and a serious injustice” for the wife which justified the intervention of the court in that case (see Lord Collins at [76]).