Case No. EWFC-43

40.As I have identified above, Mr Burrows ‘headline’ complaint against what has happened here is that DJ Cronshaw should, before approving the consent order on 16th March 2021, have required the filing of a Form D81.41.As a starting point I agree that there is merit in this bald proposition. The consent order process (whether in a traditional court setting or on the Digital Consent Order System) requires that the parties must file a Form D81. This requirement can only be dispensed with if one or both of the parties attend the court hearing. It may or may not be the case that DJ Cronshaw, before approving the order, looked at the court file and perused the Forms E which had been filed; but (even if he did) the rule strictly required him to look at a Form D81 because there was no attendance at court by either party that day. Any judge dealing with financial remedies law is likely to be familiar with this rule and, in general terms, it is an important rule because it allows the court to scrutinise the appropriateness and fairness of a proposed consent order. Once the judge has seen a Form D81, he has a discretion as to how to proceed – in the words of Munby J (as he then was) in L v L [2008] 1 FLR 26, “If epigrammatic phrases are preferred, the judge is not a rubber stamp. He is entitled but is not obliged to play the detective. He is a watchdog, but he is not a bloodhound or a ferret”. The importance of Form D81 to the consent order approval process was underlined by the improved amended form introduced in February 2022.42.The approval of this bald proposition does not, however, go anywhere near answering the questions that are for me to resolve. In this case it is clearly established that both parties were aware of their obligation to produce and proffer up to the court a Form D81 and were in the process of doing so when the judge approved the order, after which (by agreement) they abandoned its preparation. Further, it is plain and obvious that had a Form D81 been produced then the judge’s decision to approve the consent order would almost certainly have been exactly the same – since (ex hypothesi) it was common ground that the husband was unemployed with no income this was the obvious order to make. Further, none of the many distinguished lawyers on either side of the case took the view that the March 2021 Order was impeachable or in any way wrong or unfair until Mr Burrows arrived on the scene. In particular, when the case received further scrutiny in 2022 it did not occur to any of the lawyers involved that there was anything impeachable or in any way wrong or unfair with the March 2021 order. Further, the March 2021 order had been in place for more than 18 months before Mr Burrows’ first application about it and the only reason the issue has been raised is because Mr Burrows has steered the wife in that direction – nothing other than that has changed or emerged to throw a different light on what happened in March 2021. Further, if and when the husband’s financial situation improves by his receipt of a substantive income or capital payment the wife has the ability to make an application to vary upwards the currently nominal spousal periodical payments order and if it is fair for her to receive a substantive periodical payments order and/or a capitalised order then the court has the powers under Matrimonial Causes Act 1973, section 31 to grant it. Unless and until that happens the setting aside of the March 2021 order would be very likely to lead (after the completion of a Form D81) to the re-confirmation of the terms of the 2021 order. For these reasons it strikes me very clearly that Mr Burrows’ headline complaint, whatever its technical merit, has been an expensive and pointless legal exercise. For me it is baffling as to why he should be steering the wife into doing what she is doing.43.The arguments advanced by Mr Burrows to bolster his headline complaint in my view have no merit whatsoever:-(i)I accept that the court has, in theory, the power to join a child to the proceedings under FPR 2010 Rule 9.11; but the proposition that DJ Cronshaw should have declined to approve the school fees part of the March 2021 Consent Order and instead join the children to seek their views “about whether, in truth, their father should pay school fees” is a surprising proposition. I asked Mr Burrows whether he had ever come a case where such a step had been taken and he was unable to identify such a case (which accorded with my own experience). I regard the suggestions that, in some way, the argument is assisted by an application of the United Nations Convention on the Rights of the Child 1989, Article 12 or that there should be the intervention of a Judicial Review against the Ministry of Justice as also being in the same category – it is an application (if it be pursued) which is very surprising to see and I can identify no merit whatever in it.(ii)I am equally not persuaded that there is any merit in the proposition that 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”. Nobody was asking for this in 2021 and, in any event, the progress of the monies which may in the future come from SS Company have been fully disclosed and are subject to undertakings given in 2019. There is no credible suggestion that the husband has breached any of these undertakings. (iii)I am equally not persuaded that there is any merit in the proposition that 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. Nobody was asking for this in 2021 and, in any event, there would have needed to be a proper basis for making such an order and none has been put forward, let alone established.(iv)I am equally not persuaded that there is any merit in the proposition that paragraph 6 of the January 2019 order was in reality a lump sum order and thus incapable of variation. It was labelled on the face of the order as a periodical payments order and that is plainly what it was and it was certainly capable of variation.(v)In so far as it was at any time being alleged that the husband and/or his legal team was guilty of ‘material non-disclosure’ in 2021 that proposition appears to have been abandoned or rather clarified as meaning that the court was never provided with a Form D81. 44.Further, the process of examining Mr Burrows’ complaint has not been assisted by the way in which Mr Burrows has chosen procedurally to pursue it. 45.As described above, he started by suggesting that this was a ‘set aside’ case. In my view, whatever it was, it never was a set aside case. The wording of FPR 2010 Rule 9.9A makes it clear that this procedural route is only open where ‘no error of the court is alleged’. Mr Burrows complaint, when properly analysed and cleared of obfuscation, is that the court (i.e. DJ Cronshaw) made an error. It is not, therefore, within Rule 9.9A. In so far as the complaint once appeared to involve allegations of material non-disclosure, the later clarifications have made it clear that this is not being pursued and/or could not credibly be pursued. Further, it is clear that ‘bad legal advice’ is not a valid category upon which to base a setting aside application: see Harris v Manahan [1997] 1 FLR 205 and L v L [2008] 1 FLR 26. Accordingly, I am satisfied that I have enough information and argument to dismiss the wife’s application to set aside the March 2021 order and I propose to do exactly that. Pursuant to FPR 2010 Rule 4.3(7) I propose to record on my order that this application was totally without merit.46.It is not necessary for me, therefore, to visit the question of whether the application stood automatically struck out as a result of DJ Ashworth’s order dated 18th January 2023. Nor is it necessary for me to consider the appeal against this decision, in so far as it has been issued at all, because I am not relying on her automatic strike out orders to justify dismissing the application.47.Nor is it strictly necessary for me to visit the husband’s strike out application dated 24th October 2022; but I note that this application really covers essentially the same ground as I have dealt with above and, had I not been in a position to deal with the substantive application for any reason, I would have been minded to strike it out as disclosing no reasonable grounds for bringing the application.48.When Mr Burrows changed horses and pursued the matter by way of appeal then he immediately ran into the problem that the time period of 21 days for pursuing the appeal had long since expired: see FPR 2010 Rule 30.4(2). Such an appeal should have been issued by 6th April 2021 and was in fact only issued on 14th November 2022. Although there is not formally an application for permission to appeal out of time, in view of the order of HHJ Evans-Gordon I am minded to treat the case as if there was. Accordingly, I need to consider the relevant law. For these purposes I consider it sufficient to cite a passage from the Dictionary of Financial Remedies (2023 edition):“A party wishing to appeal should file a written appeal notice within 21 days of the decision complained about…If this deadline has been missed then a request can be made for permission to appeal out of time and if this issue arises the court will consider the length of the delay, the reasons for the delay, the merits of the case and any prejudice caused by the delay: Van Stillevoldt v EL Carriers [1983] 1 WLR 207, Ross v Ross [1989] 2 FLR 257, MG v AG (Appeal Out of Time: Relief from Sanctions) [2020] EWFC B49 and Hussain v Hussain [2021] EWFC 13.”49.In this case there is a long delay (19 months) and no explanation for the delay other than that all the lawyers engaged up to the point of involvement of Mr Burrows thought the order was perfectly sensible – which is not a compelling reason to grant leave to make a late application.50.In considering the merits of the appeal I need to remind myself of the test for granting permission to appeal. In other words, were I to give leave to make the application for permission to appeal out of time, what would I go on to do in relation to the application itself. I remind myself that I would be applying the test under FPR 2010 Rule 30.3(7), to the effect that permission should only be given ‘where the court considers the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard’. In other words, are the prospects of success ‘realistic’: see, for example, AV v RM [2012] EWHC 1173 (Fam) & Nasim v Nasim [2015] EWHC 2620 (Fam).51.Against this test, I am clear that there is no merit in the appeal, no real or realistic prospect of success and no compelling reason why the appeal should be heard.52.The arguments are really the same as the ones I have set out above in the context of the setting aside application, save that it can be added that there was a technical imperfection in the consent order approval process amounting to a court error, i.e. no Form D81 was seen by the judge approving the order. In this context I invited Mr Burrows to address me on the issue of whether this technical imperfection would automatically give rise to an appellate overturning of the order, whatever the circumstances. What, for example, would happen if the absence of Rule 9.26 compliance was discovered many years after a detailed consent order had been fully implemented and the monies distributed and spent? Mr Burrows conceded that there would be no automatic appellate overturning of the order in these circumstances and I think he was right so to concede – the appellate overturning of the order in those circumstances would have to be considered in the light of the reasons for, context of and consequences of the technical imperfection and the overall fairness to the parties. In this case, as I have said, there was no reluctance on behalf of the parties to produce the Form D81 and, had it been produced, the outcome would almost certainly have been exactly the same. It was common ground that the husband was unemployed with no income and this was the obvious order to make. In so far as I was minded to grant leave to make the application out of time I would not be minded to grant permission to appeal on the merits.53.For all of these reasons I propose to dismiss the application for leave to pursue the appeal out of time and the appeal is accordingly dismissed. Pursuant to FPR 2010 Rule 4.3(7) I propose to record on my order that this application was totally without merit.54.These are my decisions and I invite the legal representatives to produce a draft order which matches these conclusions.55.I will deal with the question of costs at the hearing on 2nd March 2023. For these purposes I should like to see a schedule detailing all the costs which the wife has incurred to Mr Burrows since he started advising her in August 2022.56.I will deal with the issue of the limited civil restraint order at the hearing on 2nd March 2023. 57.In this context (or possibly more generally) I feel it may be helpful for the court to hear the views of the parties on one issue which may yet arise in the future – the status of the expected payment of £475,112 by the SS Company to the husband on 29th March 2024 in the context of paragraph E(vii)(a) of the 2019 Order. My perception from the arguments I have heard is that (whilst this issue has perhaps not yet been tackled head on) the view of the husband’s legal team is that, because this payment will be made after 31st January 2024 the wife is not entitled to any part of it under paragraph E(vii)(a); but the view of the wife’s legal team (and I include in this the pre-David Burrows legal team: see Mr Calhaem’s comments in his attendance note “we will need a judge to make a determination on that point”) is that she is entitled to 25% of the net proceeds from this. It may be that an examination of this issue might take us back to those who drafted this clause in 2019. Does the date in the clause relate to the date of the husband’s leaving the SS Company (which was, of course, before the cut off date) or the date of realising his interests (which is after the cut off date)? It may be helpful to have an airing of views on this subject on 2nd March 2023. It is unlikely to be appropriate for me to resolve the issue, but it may be sensible to consider a mechanism for resolving it, if indeed it is in dispute.58.I also wish to have a discussion on 2nd March 2023 with the legal representatives and the parties about the publication of this judgment and, if it is to be published, what anonymisations / redactions are to be sought.59.There has been an argument about the drafting of the order consequent upon the hearing on 9th February 2023. I attach to this judgment the order I propose to make for that hearing.