Case No. EWFC-43

10.Unhappy with the financial turn of events, on 3rd June 2020 the wife issued an application seeking to enforce the arrears now beginning to accrue under the 2019 order. On 23rd June 2020 the husband made an application to vary the income provisions of the 2019 order, having failed to persuade the wife to agree a reduction of the obligations based on his unemployment. Within the proceedings arising from these cross-applications, the husband was represented by Mr Simon Pigott of Levison Meltzer Pigott and the wife by Ms Susan Philipps of Alexiou Fisher Philipps, both very experienced financial remedies Solicitors. There was a directions hearing on 11th August 2020 at which both parties were represented by Counsel and at which DDJ Morris gave directions for the exchange of Forms E and listed a final hearing of both applications over two days on 18th and 19th March 2021. 11.The husband duly gave disclosure by Form E dated 2nd October 2020. On the face of it, this Form E gave comprehensive disclosure of the husband’s present and likely future income and capital position at that time. In particular it fully disclosed the husband’s departure agreement with the SS Company, noting that he had received the first tranche of £250,000 (gross of tax) in July 2020 (in relation to which he had paid 25% of the net amount to the wife in July 2020 pursuant to the 2019 order) and that he was to receive a further £250,000 in July 2021 and a further £475,112 in March 2024 (both gross of tax).12.As the cross applications approached the trial date, it is clear that there were some discussions between Mr Pigott and Ms Philipps. Ms Philipps plainly was concerned that the wife was unlikely to succeed at the imminent hearing and that she might be at risk on costs. Presumably after receiving advice from Ms Philipps, the wife decided to back down from her previous position. A consent order was duly drawn up which included the following provisions:-(i)The wife’s enforcement application was to be “withdrawn and is dismissed”.(ii)The spousal periodical payments parts of the order were varied to a nominal rate of payment, but to last for the same term, so they could be revived to a substantive level if appropriate, in particular if the husband’s financial situation improved.(iii)The child periodical payments parts of the order were discharged.(iv)The husband undertook to “inform the applicant of any offer of employment he accepts…and…full details of the remuneration he will receive”.(v)The capital parts of the order, including the obligations not yet due and the duty to keep providing relevant information, were not changed in any way by the order.(vi)There would be no order for costs on the cross-applications. The husband had incurred £46,000 in costs in dealing with the 2020 cross-applications.13.A draft consent order containing these provisions was agreed between the parties and, it is clear from the correspondence, both Solicitors were aware that FPR 2010, Rule 9.26 required the production of a Form D81 as part of the consent order approval process. The Form D81 was mid-way through being produced on 16th March 2021 when (perfectly properly) the court required clarification as to whether the trial dates were still needed. Accordingly, Levison Meltzer Pigott (again, perfectly properly) duly emailed the court on 16th March 2021, attaching the proposed draft consent order and inviting the court to vacate the imminent hearing. By way of explanation the email said:-“I attach the joint letter to the Court as signed by the solicitors for both parties, along with the consent order signed by both parties that is referred to in that joint letter. I also attach a copy of the consent order in Word to assist the Court with preparing a sealed version. The attached joint letter also refers to Forms D81 being enclosed for both parties. These Forms D81 are in the process of being finalised, so we will file them at the Court as soon as they are ready.”Things moved quickly at the Central Family Court that day and, within an hour, DJ Cronshaw had approved the order (which recites that he had considered the documents lodged by the parties), the hearing had been vacated and a member of court staff had confirmed both these things to the Solicitors. The order having been approved, the wife’s Solicitors suggested (in writing) to the husband’s Solicitors that there was little purpose in completing the Forms D81 and the husband’s Solicitors concurred. Nobody at the time (neither the parties nor the court) was troubled by the technical imperfection in the consent order approval process, the failure to comply with FPR 2010, Rule 9.26. Everybody was satisfied that, in a perfectly normal way, proceedings had been concluded by an approved consent order thought to be fair and appropriate by both the parties, their respective lawyers and the court.