Case No. FD11D02580

:“2.1 The following are examples of cases where the court may conclude that an application falls within rule 4.4(1)(a) – (a) those which set out no facts indicating what the application is about;(b) those which are incoherent and make no sense;(c) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent.2.2 An application may fall within rule 4.4(1)(b) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill-founded.2.3 An answer may fall within rule 4.4(1)(b) where it consists of a bare denial or otherwise sets out no coherent statement of facts.2.4 Omitted.2.5 The examples set out above are intended only as illustrations.2.6 Where a rule, practice direction or order states ‘shall be struck out or dismissed’ or ‘will be struck out or dismissed’ this means that the order striking out or dismissing the proceedings will itself bring the proceedings to an end and that no further order of the court is required.”60.An application to set aside a financial remedy order is governed by the procedure set out in FPR r 9.9A. That is the procedure which has been followed in this case. Summary judgment61.In civil proceedings, there is specific provision under CPR r 24.2 for summary judgment. There is an issue between counsel in this case as to whether or not there is provision within the framework of the FPR 2010 for a similar remedy. Mr Elliott QC relies on the decision of the Supreme Court in Vince v Wyatt [2015] UKSC 14, [2015] 1 WLR 1228 in support of his submission that there is no such power. In that case, Lord Wilson JSC identified the absence of such a power under the FPR which he regarded as a deliberate omission on the part of Parliament because of the particular nature of financial remedy proceedings: see para 27. The basis for that lacuna was explained by his Lordship in these terms:“The meticulous duty cast upon family courts by section 25(2) [of the Matrimonial Causes Act 1973] is inconsistent with any summary power to determine either that an ex-wife has no real prospect of successfully prosecuting her claim or that an ex-husband has no real prospect of successfully defending it.”62.The principal task which fell to the Supreme Court in the context of the appeal in Vince v Wyatt was to construe the meaning of the words “no reasonable grounds” and “abuse of the court’s process” in r 4.4(1)(a) and (b). On 8 and 9 December 2014 when the case was argued in the Supreme Court, FPR PD4A included a paragraph at 2.4 which has since been omitted from the rules. That paragraph provided as follows:-“2.4 A party may believe that it can be shown without the need for a hearing that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 4.4.”63.That paragraph was closely modelled on para 1.7 of CPR PD3A which drew a link between the power in civil proceedings to strike-out and to give summary judgment. The only difference between para 1.7 of CPR PD3A and (what was) para 2.4 FPD PD4A is the inclusion in para 1.7 of a slightly modified form of words at the end of the paragraph:“…. In such a case the party concerned may make an application under Rule 3.2 or Part 24 (or both) as he thinks appropriate.”64.Thus, in civil proceedings, as the Supreme Court recognised, there exists an express power to give summary judgment if the court considers that the claimant or defendant has no real prospect of successfully prosecuting or defending the claim and/or if there is no other reason why the case should be disposed of following a full trial of all the evidence. The power to give summary judgment in civil proceedings is necessarily wider than the power to strike-out a claim under r 3.4. In the case of a strike-out application the focus is on the pleaded statement of case which is alleged to disclose no reasonable grounds for bringing the claim: see para 24 of Lord Wilson’s judgment. In this context there is seldom any investigation of the evidence supporting the claim.65.The omission of what was para 2.4 of FPR PD4A was no doubt a reflection of the observation made by Lord Wilson at the end of para 27 of his judgment in Vince v Wyatt to the effect that it was “an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment”.66.The absence of a power under the FPR 2010 to deliver summary judgment in the context of a financial remedy claim was considered further by the Court of Appeal in Roocroft v Ball [2016] EWCA Civ 1009, [2017] 1 WLR 1137. In that case, King LJ confirmed that, whilst the court was entitled to use its active case management powers to conduct some form of abbreviated hearing in an appropriate case, such a hearing does not avoid the need for the court to be satisfied on an application to set aside a consent order that (i) there has (or has not) been non-disclosure, and (ii) whether such non-disclosure had been material in the sense that it had led to a substantially different order from that which would have been made following full disclosure: see para 58. If the documents before the court present an overwhelming case of deliberate non-disclosure, the court may well utilise an abbreviated hearing to make that finding. Depending on the nature of the evidence before the court, it may be that the court determines that it cannot make such findings without targeted forensic investigation through oral evidence and cross-examination of witnesses: see para 59.67.On behalf of W, Mr Glaser QC relies upon the provisions set out in FPR 9.9A and PD9A para 13.8 which now reflect the procedure to be adopted for setting aside financial orders where no error of the court is alleged. These reflect a specific recommendation of the Family Procedure Rules Committee following the decisions of the Supreme Court in Sharland and Gohil11 (above).68.FPR 9.9A provides that a consent order is included within the definition of a financial remedy order for the purposes of a set aside application. Pursuant to r 9.9A(2), a party is entitled to apply under this rule to set aside an order where no error of the court is alleged. 69.PD9A para 13.8 provides:“13.8 In applications under rule 9.9A, the starting point is that the order which one party is seeking to have set aside was properly made. A mere allegation that it was obtained by, eg, non-disclosure, is not sufficient for the court to set aside the order. Only once the ground for setting aside the order has been established (or admitted) can the court set aside the order and rehear the original application for a financial remedy.