Case No. EWFC-43

25.The first application made by Mr Burrows was an application dated 26th September 2022. The headline application (included in the very long and in parts confusing document served in support) was to set aside the order made by DJ Cronshaw dated 16th March 2021. The document is long on the unnecessarily lengthy citation of passages from authorities, but the essence of the complaint appears to be that the March 2021 order should be set aside because it was made by DJ Cronshaw without a proper knowledge of the underlying facts, in particular that it was made in the absence of a Form D81 and therefore in breach of FPR 2010 Rule 9.26. In support of the proposition it appears also to be being suggested that:-(i)DJ Cronshaw should have declined to approve the school fees part of the March 2021 Consent Order and instead made an order under FPR 2010 Rule 9.11 joining the children as parties and seeking their views on the discharge of the school fees order. In Mr Burrows’ words: “It is not known why the lawyers and the court ignored this provision. The boys still at YY School might well have had a view about whether they could remain at the school and about whether, in truth, their father should pay school fees.” In a later document Mr Burrows has sought to develop his position on this by purporting to rely upon the United Nations Convention on the Rights of the Child 1989, Article 12.(ii)DJ Cronshaw should have declined to approve the order on 16th March 2021 and instead made an order under FPR 2010 Rule 9.26B joining the SS Company as a party to enable the monies that may be paid by them to the husband in the future can be “charged or frozen”.(iii)DJ Cronshaw should have declined to approve the order on 16th March 2021 and instead made an order for financial disclosure against the husband’s partner.(iv)Paragraph 6 of the January 2019 order, despite being labelled on the face of the order as a periodical payments order, was in reality a lump sum order and thus incapable of variation and its variation should never have been ordered.(v)The Form D81 which was part prepared in March 2021, but never completed for the reasons described above, was in a form defectively produced by the FPR rule makers, as is apparent from the fact that it was replaced by an amended Form D81 in February 2022.(vi)The husband had “concealed vital matters” from the court in both March 2021 and April 2022.26.The husband’s legal team responded to this application by making, on 24th October 2022, a strike out application pursuant to FPR 2010 Rule 4 on the grounds that the wife’s application was an abuse of the court process and disclosed no reasonable grounds for bringing the application.27.These applications came before DJ Ashworth on 25th October 2022. Mr Burrows appeared for the wife. The husband continued to employ Levison Meltzer Pigott who instructed Ms Deborah Bangay KC. The reason given for the husband being represented by Leading Counsel was the very serious allegations made against the husband that he, and by inference also Mr Pigott, had “concealed vital matters” from the court in both March 2021 and April 2022. Mr Pigott took strong objection to this attack on his professional integrity. Amongst the things emerging from a perusal of the transcript of this hearing and the order made were the following:-(i)Mr Burrows expressly declined the court’s invitation to apologise to Mr Pigott for the allegations made that he had deliberately misled the court.(ii)Mr Burrows expressly accepted Ms Bangay’s proposition that the document filed by him (in particular certain paragraphs of that document – 13, 20 to 22, 25 and 37 to 42) amounted to a waiver of the privilege relating to the wife’s files surrounding the March 2021 and the April 2022 hearings and Mr Burrows did not oppose the order requiring him to give disclosure of the files, or at least the part of those files relating to the advice that the wife had received in and around those hearings “in respect of and arising out” of the particular paragraphs . Accordingly, DJ Ashworth made an order to that effect, requiring the disclosure by 8th November 2022.(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.