Applications for new trial.
(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.(2) As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.”This provision was new. It did not appear in the Supreme Court of Judicature (Consolidation) Act 1925 or in the predecessors to that Act.25.Plainly, the terms of r.54 of the Matrimonial Causes Rules 1977 provided the necessary rules for the purposes of seeking a rehearing of a cause heard in the High Court4.26.The Matrimonial Causes Rules 1977 were replaced by the Family Proceedings Rules 1991. Rule 54 of the former was replicated by r. 2.42 of the latter.27.As referred to above at para 16(ii), in addition to Route A there was Route B which had for a long time allowed parties to seek a rescission of a decree nisi by consent where there had been a reconciliation: see r. 64 Matrimonial Causes Rules 19735, r. 64 Matrimonial Causes Rules 1977, and r. 2.48 Family Proceedings Rules 1991.28.The 1991 rules were replaced by the Family Procedure Rules 2010 (‘FPR’). Rule 7.28(2) reproduces Route B6. But r. 2.42 of the Family Proceedings Rules 1991 - the Route A procedure - was not reproduced in FPR Part 7. I consider that the reason for this was because FPR r. 4.1(6) provided that procedure. This states:“A power of the court under these rules to make an order includes a power to vary or revoke the order.”29.In CB v EB [2020] EWFC 72 I stated:“31.Just as with CPR rule 3.1(7) there was much controversy as to the scope or reach of FPR rule 4.1(6). Could it apply to final [financial] orders made under the primary statutory provisions? Arguably not, given that by its literal terms it only applied to orders made pursuant to a power contained in the rules themselves. On the other hand, there were decisions across the spectrum of family law which held that the rule could apply to final orders. Not everyone agreed that these decisions were correct.32.Therefore, the position up to 22 April 2014, the date when the new Family Court came into existence, was that from 1968, when the county courts acquired divorce jurisdiction, there existed a full set aside power pursuant to CCR Order 37 rule 1(1). That power was replaced on 6 April 2011 by FPR rule 4.1(6), although, as mentioned above, the scope of that latter rule was uncertain and controversial.”30.However, I consider it unthinkable that the framers of the 2010 rules intended to abrogate the Route A power to rescind a decree which stretched back to the Divorce Rules of 1865 and beyond that into the procedures of the Ecclesiastical Court. Further, I do not agree, pace Parker J’s decision in Kim v Morris [2012] EWHC 1103 (Fam) at [71] that there was no express power in the rules in 2012 to order the rescission of a decree. In my opinion rule 4.1(6) conferred that power. I do not agree that there was then an inherent power to set aside a decree. I agree with David Burrows in Supplemental evidence and rescission of decrees [2012] Fam Law 902 where he says that sec 17:“…specifically makes unlawful the setting aside of orders in the High Court, save on appeal (Kim was not an appeal case), or as provided for by the rules.”Mr Burrows goes on to say:“Common law (i.e. Parker J’s decision) and statute law … are now head-to-head on rescission”I would not agree that there is any such head-to-head contest. It is well-established that where a certain subject matter has been regulated by legislation, there is no room to use the High Court’s inherent jurisdiction or common law to outflank the effect of the legislation: Richards v Richards [1984] AC 174, HL7.31.On 22 April 2014 sec 31F(6) of the Matrimonial and Family Proceedings Act 1984 ("section 31F(6)") came into force on the creation of the Family Court. This provides:“The Family Court has power to vary, suspend, rescind or revive any order made by it, including –(a) power to rescind an order and re-list the application on which it was made,(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and(c) power to vary an order with effect from when it was originally made.”From that point controversies about the Court’s jurisdiction to set aside a decree nisi became otiose, certainly as regards the new Family Court, although there remains a lingering doubt hanging over the High Court’s power to do so. This is a particularly arid question as it is inconceivable that such an application could be properly issued or heard in the High Court8.32.In NP v TP [2022] EWFC 78 at [22]-[23] Cobb J proposed a standard test for all types of family cases where sec 31(F)(6) is relied on. However, I am of the view that when sec 31F(6) is invoked to seek to rescind a decree nisi, it stands as the lineal descendant of the Route A power that stretches back unbroken to the Divorce Rules of 1865, and that therefore the old authorities on Route A remain fully applicable.33.There are many authorities on the exercise of this power but in my opinion the most illuminating is Owen v Owen [1964] P 277, and that the test is as expressed by Scarman J in that case at 284:“We think that today the justification for the existence of the court's power to order a rehearing is the public interest and that its exercise should be governed primarily by that consideration. The true nature of the public interest is, as Pilcher J. remarked in Tucker v. Tucker to see that in matrimonial matters, where questions of status are involved, any order made by the court is made upon the true facts. Certainty is not within the power of the court to achieve; but it must be satisfied that there are substantial grounds for the belief that a decree has been obtained contrary to the justice of the case before it takes the serious step of setting aside an order of the court obtained by due process of law.”34.The third route whereby rescission of a decree may be ordered is under sec.9 Matrimonial Causes Act 1973. This provides (in its form as enacted and applicable to these proceedings):