Case No. EWFC-43

.(iii)DJ Ashworth made some timetabling orders to take the two applications towards a two day hearing on 23rd and 24th February 2023 before herself. (iv)DJ Ashworth required the wife to put in writing by 8th November 2022 an explanation of what errors of law were alleged to have been made by Recorder Chandler KC and also the material non-disclosure relied upon.(v)DJ Ashworth expressed the provisional view, however, that Mr Burrows’ case seemed, in reality, to be more properly an appeal than a set aside application since a set aside application was an appropriate mechanism only where “no error of the court is alleged”: FPR 2010, Rule 9.9A. All but one of Mr Burrows’ allegations appeared to fall into the category of court error.28.The wife did not comply with sub-paragraphs (ii) and (iv) above by 8th November 2022 and (by a Form D11 dated 22nd December 2022) the husband brought these failures to the attention of DJ Ashworth, who in due course made a further order on 18th January 2023 in which she directed that if these orders were not complied with by 25th January 2023 then the set aside application would be “struck out without further order”. She acknowledged on the face of the order that, since the order had been made without a hearing, the wife could apply (on notice) to set aside or vary the order.29.The wife did (on 1st February 2023) file a statement in response to sub-paragraph (iv). It is clear from a reading of this statement that the wife was unable to identify any errors made by Recorder Chandler KC. Further, she in essence accepted that there was no material non-disclosure involved and that the husband had given full disclosure to the wife’s lawyers prior to both the 2021 and 2022 orders. In essence the ‘material non-disclosure’ point, as eventually formulated, is no more than the headline allegation that DJ Cronshaw was not presented with a Form D81. The witness statement explains “So far as this is not clear I am sure Mr Burrows would apologise”. Whether or not this amounts to an apology or not is not entirely clear, but the existence or not of an apology has no legal status anyway so I do not propose to become distracted by this issue. In a broader sense I have picked up little sense of regret or repentance from Mr Burrows for pursuing the issue in the way he did. 30.Further, the wife did (I believe shortly after 25th January 2023) give some disclosure of the wife’s previous files in response to sub-paragraph (ii) above, including the attendance note from the conference with Mr Calhaem from which I have quoted above and some correspondence sent prior to the March 2021 hearing. There is an ongoing dispute about whether the disclosure given amounts to a full compliance with the DJ Ashworth order; but, since the purpose of this forced disclosure is largely to illustrate that the wife’s legal advice at the time was to accept the 2021 and 2022 orders, it may be that there is little purpose in prolonging this dispute.The application for permission to appeal dated 14th November 202231.Almost certainly moved by DJ Ashworth’s provisional view about FPR 2001 Rule 9.9A, on 14th November 2022 Mr Burrows on behalf of the wife issued an application for permission to appeal against the March 2021 decision of DJ Cronshaw. He also asked for the set aside application and the appeal to be heard together by a Circuit Judge. The Grounds of Appeal relied upon are substantially a repetition of the grounds advanced in relation to a set aside application (see above).32.The application for permission to appeal was triaged by HHJ Evans-Gordon and, by her order of 13th January 2023, she listed the application for a two hour hearing before me on 9th February 2023. She directed that I should also have before me the set aside application. She directed that the husband must attend this hearing.33.She noted that the application did not contain an application for permission to appeal out of time (the appeal period having prima facie expired 21 days after 16th March 2021, i.e. 6th April 2021, some 19 months before the application was made). She invited the wife to cure this defect by filing a statement by 27th January 2023 explaining the delay. This statement was served by the wife on 19th January 2023 and can really be summarised by the proposition in paragraph 25: “Until I received David Burrows’ advice I did not know there was any chance of overturning DJ Cronshaw’s order”. The application for permission to appeal is accordingly for me to decide after hearing the submissions made on 9th February 2023.