L v L [2006] EWHC 956 (Fam)

[2006] EWHC 956 (Fam)Case No FD04D02543
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(In Private)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 May 2006
Before
MR JUSTICE MUNBY
Between
LPetitionerLRespondent
Mr Charles Howard QC and Ms Madeleine Reardon (instructed by Withers LLP) for applicant (respondent husband)Mr Timothy Scott QC (instructed by Mischcon de Reya) for respondent (petitioner wife)Hearing Hearing date: 10 March 2006
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................MR JUSTICE MUNBYThis judgment was handed down in private but the judge hereby gives leave for it to be reported.The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.
[1]This is the aftermath of ancillary relief proceedings which ended in a consent order made by a District Judge sitting in the Principal Registry. The husband repents of his generosity to his wife and now seeks to escape from the order to which he consented. The issue before me is whether he can.[2]The essential chronology can be summarised quite briefly. The husband and wife (as I shall call them even though they are now divorced) are both high-earning analysts in the City. They were both born, as it happens within days of each other, in January 1967. They met in 1996 and began a relationship in the autumn of 1999. They married on 15 February 2003. Both had been married before, the husband twice and the wife once. By his second wife the husband has a son who is now 8 years old. The husband and the wife have a daughter, who was born on 26 May 2003. On 30 January 2004 the husband told the wife that he was having an affair with another woman and that the marriage was over. He confirmed that in a telephone call to the wife on 10 February 2004. He moved his belongings out of the matrimonial home between 13 and 21 February 2004.[3]On 22 February 2004 the husband and the wife met at the Lanesborough Hotel to discuss their financial affairs. They reached an agreement. Later the same day the husband instructed solicitors – not the same solicitors as are now acting for him. The wife instructed solicitors a little later – the first letter from her solicitors is dated 29 March 2004. Extensive correspondence followed, both between the solicitors and, to a certain extent, also between the husband and the wife.[4]The wife petitioned for divorce on 20 April 2004. The decree nisi followed on 10 August 2004. On 1 October 2004 the wife filed her Form A. The decree was made absolute on 12 October 2004.[5]On 5 July 2004 the wife’s solicitors had sent the husband’s solicitors the first draft of a proposed consent order. There was further correspondence and the draft consent order passed through a number of versions, albeit most of the amendments were concerned with minor matters or points of detail rather than matters of substance. The final draft was agreed on 28 September 2004.[6]Two days later, on 30 September 2004, the husband signed his Form M1. It set out that he owned two properties worth together (net) £209,000, shares worth (net of loans and fluctuating) some £2,450,000 and a pension with a CETV of £137,954. His current net annual income was stated as being £595,880.[7]The wife signed her Form M1 on 4 October 2004. It set out that she owned the former matrimonial home (previously in joint names but already transferred into her sole name) worth £2,150,000, shares worth £175,000, and a pension worth a notional £28,000 per annum “if taken now”. She said that she had cash amounting to £200,000. Her net income was said to be £81,000 “before bonus”. The amount of the bonus was not stated. The husband’s case before me was that the wife was in fact earning bonuses of “up to £350,000 net.” More specifically, reference was made to what the wife had said in a Form E exhibited to her witness statement dated 14 September 2005. In the last financial year (2004-2005) her basic salary was £135,000. Together with bonus it amounted to £853,565 gross, £519,549 net. Also, by then, she said that her shares were worth £513,706 whilst she had, she said, £266,065 in various bank accounts. More recently it has emerged that the wife’s gross earnings in the year 2001-2002 amounted to £560,035.[8]On 30 September 2004 the husband attended at the offices of the wife’s solicitors and signed both his Form M1 (which had been sent there by his solicitors) and the final agreed draft of the consent order. It is not clear whether at that stage he had seen the wife’s Form M1 even in draft. As I have said, it was not signed by her until 4 October 2004 and it was only sent to his solicitors under cover of a letter dated 5 October 2004. On 11 October 2004 his solicitors wrote to him, saying “I don’t know if you saw [her] M1 statement of financial information.” Having summarised its contents, the letter continued “I thought you would like to know if you did not.” On 13 October 2004 the wife’s solicitors lodged the agreed consent order and the Forms M1 with the court.[9]On 20 October 2004 District Judge MacGregor made the consent order which is now in contention. It was sealed on 22 October 2004. Neither party appeared before the District Judge, who dealt with it as part of her ‘box-work’. It would seem that all the District Judge had before her were the wife’s Form A, the two Forms M1 and the signed draft consent order. The order is lengthy, but in light of the submissions that have been addressed to me I think I should set it out in full. Because of its length I have relegated it to an Appendix.[10]Time passed. In late February 2005 the wife telephoned the husband to tell him that she was giving up work, that she was being paid until the end of May 2005 and that she wanted him to put in place a direct debit for her maintenance from the end of June 2005. On 3 March 2005 the husband contacted his solicitors and on 9 March 2005 asked them if anything could be done to change the consent order. Leading counsel was instructed and advised in consultation on 13 April 2005. On 10 June 2005 the husband gave notice of change of solicitors. On 17 June 2005 he applied ex parte (without notice to the wife) to Bennett J. He produced to Bennett J drafts of four applications he wished to make: i) an application in Form A for a periodical payments order in favour of the wife and the discharge of his undertaking, in paragraph 8 of his undertakings as set out in District Judge MacGregor’s order, to pay periodical payments; ii) an appeal against District Judge MacGregor’s order together with an application for permission to appeal out of time; iii) an application by CPR Part 8 claim form in the Queen’s Bench Division for an order that District Judge MacGregor’s order be set aside; and iv) an application returnable before a judge of the Family Division to set aside District Judge MacGregor’s order.[11]On the husband’s undertaking to file all four applications by 21 June 2005 Bennett J ordered that the application in Form A be transferred to the High Court, that the CPR Part 8 claim be transferred to the Family Division and that all four applications be consolidated and, for the future, listed together. In the event each of the four applications was issued on 20 June 2005. The applications were supported by a statement by the husband dated 10 June 2005.[12]The husband’s application in Form A sought two things. First, “a periodical payments order against the [husband] in favour of the [wife].” That application was made in accordance with Dart v Dart [1996] 2 FLR 286 (see at pages 292-293) and on the basis that: i) paragraph 2 of the curial part of District Judge MacGregor’s order, whilst dismissing the wife’s claims for lump sum, pension sharing and property adjustment orders, did not dismiss her claim for periodical payments; and ii) paragraph 3 of the curial part of District Judge MacGregor’s order, whilst directing that the husband was not to be entitled to make any further application under sections 23(1)(a) or (b) of the Matrimonial Causes Act 1973 “in relation to the marriage”, as a matter of construction barred only claims by the husband for himself and not a Dart v Dart claim made by him for the benefit of the wife. Secondly, a “variation of periodical payments (application to be released from undertaking number 8 in the Order of District Judge MacGregor … ).” That application, as I understand it, was made in accordance with section 31 of the Act.[13]The husband’s notice of appeal set out a number of grounds which, omitting narrative parts, can be summarised as follows: i) the order was “so generous to the … wife as to be grossly unfair to the … husband and far outside the bracket of reasonable financial provision that could properly have been sanctioned by the court”; ii) the order was “wrong in principle” in that: a) the husband’s undertaking to pay periodical payments was “on terms that the court had no jurisdiction to order, namely that the payment term should extend beyond the … wife’s prospective remarriage”; b) the husband’s undertaking was for periodical payments throughout the parties’ joint lives notwithstanding that this was a “very short marriage” and that the wife had “a substantial earning capacity”; c) it provided for “very substantial capital provision for a child” (alternatively, that “even if there circumstances to justify the court in sanctioning a lump sum payment for a child, the sum awarded was vastly more than could possibly be spent for the child’s benefit”); iii) the husband was “badly advised” by his solicitor who, although telling him that the order was “generous” to the wife did not tell him that it was “wrong in law”; and iv) the order was “so manifestly unfair on its face that the District Judge was plainly wrong in exercising her discretion to approve it.”[14]The grounds of the CPR Part 8 claim were said to be that the order “was based on a mistake of law and resulted from bad legal advice.” Reference was also made to the husband’s witness statement dated 10 June 2005. In that statement he set out a narrative account of the negotiations which led up to the making of the consent order. He said that in May 2004 he had suggested that the wife’s maintenance should cease on her remarriage or cohabitation. He continues:
“However, I felt terribly guilty and there was considerable pressure on me simply to say yes to what was proposed: that I should pay ongoing maintenance regardless of [her] marital or cohabiting status. After a conversation with [her] I agreed to this. Following this I did have very serious concerns about this aspect of the order. In August I asked my solicitor … whether I was bound by the fact that I had agreed to pay maintenance on those terms. I was advised that there was no way of backing down from it now.”
He added:
“I had been told that once I had agreed in correspondence that I would pay it there was no possibility of renegotiating this part of the order.”
He described his position generally as having been that:
“although I knew I was being generous to [her], I felt that I had no negotiating position and should sign whatever was presented to me by [her solicitors].”
[15]The grounds of the application to the Family Division judge were said to be those set out in the notice of appeal though reference was also made to the husband’s witness statement.[16]Further directions were given by Holman J on 5 July 2005. Importantly, Holman J’s order included directions that the husband was to disclose: i) his solicitors’ file “in so far as it relates to the negotiations in the ancillary relief proceedings”; ii) “the dates and specific terms of any advice that he says amounted to bad advice”; and iii) “details of the basis of his case on(i) the pressure put on him during the period of negotiations(ii) by whom any such pressure was applied(iii) specifics on anything said or written that amounted to pressure being put upon him(iv) any other aspects of any pressure that he asserts he was under(v) whether or not it is his case that the pressure he was subjected to amounts to undue influence.”[17]I shall return in due course to what is disclosed in the husband’s solicitors’ file. For the moment I turn to the witness statement which the husband made on 10 August 2005 setting out, purportedly in compliance with Holman J’s order, the particulars of his case on “bad advice” and “pressure”. It is a curious and revealing document, though revealing more because of what it does not say than because of anything very specific that it does say. The husband describes the “pressure” as follows: “I felt that I was in a corner. I was under considerable pressure and, as a result, believed that I was left with no alternative but to agree, basically, with any proposals that [the wife] put forward. Throughout the period of ‘negotiations’ … , I was fully aware that she occupied, quite understandably, the moral high ground. I regretted the fact that the breakdown of the marriage had largely been my responsibility and that I had caused [her] a great deal of distress. I quite simply wanted to make amends as best I could. In hindsight, I realise that the pressure that I felt resulting from my own sense of guilt led me to listen, and agree, to proposals that were unreasonable and disproportionate in the extreme. Whilst some of the pressure that I felt under was “self-generated”, [she] did not hesitate at all to take advantage of the fact that she occupied the moral high ground. She used both subtle, indirect and brutally direct methods to exert pressure on me during the period in which we were negotiating – she told me for example, on more than one occasion, that I was only a telephone call away from being fired. Whether directly or otherwise, [she] made it very clear to me that she was in contact with colleagues of mine and that she would not hesitate to let them know if I did not agree to her demands. On a number of occasions, she made references to aspects of my remuneration package (in particular, forthcoming “special” dividend and profit share payments), details of which she could only have obtained from people with whom I worked. She often made references to what people had been saying about my behaviour. She invited a number of my colleagues, some of whom she barely knew, to gatherings (such as her house warming party and picnics) and she attended the wedding of one colleague at which, I understand (I was not there), she made her distress very clear to a number of people. The overall effect was that many of my colleagues (and as a result me too) were clearly made to feel very uncomfortable with the position in which they were being placed. Whilst little was said directly to me on the issue, I was aware that they resented being put in the position in which they were and that they understandably blamed me for it. One of my colleagues, whom I do not wish to name as I do not think that it would be appropriate given that I still work with him and hope to continue to do so in the future, told me that I should “do the right thing” and I felt that this was a sentiment held by most. It was clear to me that I had to do what I could to safeguard my future prospects at the firm and, to a degree, maybe even my continued employment. I saw this as important not just for my own sake but for those of both [her] and our daughter … , and my previous wife and our son, all of whom I saw as likely to be reliant, to varying degrees whether directly or indirectly, on me financially in the future. I took the pragmatic view, therefore, that I had not only to “do the right thing”, whatever that might have been, but that I had to be seen to do it. I felt pressured into entering into an agreement which I really should not have in order to salvage what was left of my reputation. … I do believe … that I was subjected to undue pressure. I was constantly aware, as a result of her behaviour, that [she] had a pistol hidden in her pocket which was cocked and ready to use. By email, she pressed, I say inappropriately, for me to provide “a life-long security net” even after she had commenced cohabiting or had re-married because of the way that I had treated her. As a result of both the pressure exerted by her and my own feeling of guilt, I was pushed into reaching a settlement that I should not have”.[18]His case, he says, is that:
“the pressure that I was under led me, in the absence of proper and competent legal advice, to agree to an order which was quite inappropriate”
. He acknowledges, “having discussed the issue with my current legal advisors”, that the pressure he was put under did not amount to “undue influence in the legal sense”, though he asserts he was subjected to what he calls “undue pressure.” He makes clear that it is not his case that the consent order should be set aside “merely” because of the pressure he was under; the pressure, he says, is “simply one of the circumstances that I ask the court to take into account when considering this matter.”[19]Perhaps needless to say, the wife gives a significantly different account in her witness statement dated 14 September 2005.[20]In the same witness statement the husband also particularises his case in relation to “bad advice”:
“The legal advice that I received prior to “agreeing” the consent order was such that, whilst I knew that I was being generous to [the wife], I did not appreciate: (1) quite how unfavourable the terms of the agreement were to me from a legal point of view; and (2) that a number of the provisions in the consent order were such that they were unconventional to say the least and, I am now advised, without jurisdiction, contrary to case law and should simply not have been approved by the court.”
He says that he does not propose to go into any further detail as he firmly believes that his solicitors’ file “speaks for itself.” He acknowledges that he did not really have much independent recollection of his conversations with his solicitor, but:
“what I am clear about, however, is the extent to which she gave me advice – in reality, not at all – and this will be evident from the file.”
[21]It is convenient at this point to refer to one or two e-mails sent by the husband to the wife in the early days following their separation. On 4 March 2004 the husband sent the wife an e-mail in which he said:
“I so hate myself for this. I hope in time I can bring back a modicum of goodness to you.”
The wife responded later the same day:
“Just please don’t be unfair – even more than you already are/were. You just push me around the way you like and that really does not help the process … I’m still a human being and have feelings.”
The husband replied the following day: “I am treading as carefully as I can (knowing the devastation I’ve already caused) … What I have done is the most terrible thing and I can never come to terms with it or even begin to forgive myself, but I really don’t try to push you around … I want to give you everything I have (home, most of my disposable income for a decade), as much as anything, as clear a signal as I can that I don’t want to play unfair or push you around”.[22]On 22 September 2005 the wife issued a summons seeking an order that each of the husband’s four applications be struck out or, alternatively, summarily dismissed, on the grounds that: i) the applications “disclose no reasonable grounds and are doomed to fail”; ii) the applications are each an abuse of the process of the court; and iii) there was “unreasonable and unnecessary delay” between the making of the consent order on 20 October 2004 and the issue of the applications on 20 June 2005. The application was said to be made under RSC Order 18 rule 19 or alternatively under the inherent jurisdiction of the court.[23]It is that application which, in accordance with an order made by Her Honour Judge Bevington on 27 September 2005, came before me for hearing on 10 March 2006. The husband was represented by Mr Charles Howard QC and Ms Madeleine Reardon, the wife by Mr Timothy Scott QC.[24]At this point it is convenient to return to consider the husband’s solicitors’ file disclosed in accordance with Holman J’s order. It is a bulky document: the correspondence and attendance notes run to well over 200 pages. I do not propose to analyse it in detail. There is no need for me to do so. It suffices, I believe, if I make the following five points: i) In relation to the periodical payments the crucial discussions were those between the husband and the wife. The history (see below) shows the husband to have been very ambivalent and constantly vacillating, repeatedly reverting to the view that he was being far too generous and that the wife’s periodical payments should, in the normal way, cease upon remarriage or cohabitation but on every occasion being persuaded by the wife to drop these limitations and agree to periodical payments for the remainder of her life. The upshot was that the wife ended up getting more than what her solicitors had initially been seeking! ii) Generally speaking – I am going here by the documentary record – although there is much discussion between the husband and his solicitor, and much taking and clarifying of instructions, there is not that much giving of anything, even however informal, which can be called focussed or specific advice. iii) That said, the husband can have been left in no doubt that the order was extraordinarily generous. Indeed, he did not need to be advised of that, for in the e-mail which he sent to his solicitors right at the outset on 23 February 2004, the day after the meeting at The Lanesborough Hotel, he himself described the proposed settlement as “significantly out of kilter with the duration of the marriage and [the wife’s] present income”. His solicitor’s attendance note of a telephone conversation with the husband on 25 February 2004 records her:
“quer[ying] how it would be possible for client to “commit” not to leave his current employment until the final payment is made … [and] in general terms … why it was going to be such a generous settlement as it seemed totally out of proportion and more suitable to the wife of an Arab Sheikh or Royalty”
. The same attendance note records the husband:
“repl[ying] gloomily that his colleagues … had revealed to [the wife] not just his current circumstances but his projected circumstances and had encouraged her in effect to ask for these amounts and that his own Senior Director … had told him that in his position surely a couple of million payment to [the wife] was neither here nor there!”
In a letter from his solicitor dated 17 August 2004 the husband was told that “these are incredibly generous terms which no Court would ever actually order”. And in a letter to him dated 25 August 2004 his solicitor referred to “the vexed question of your incredibly generous provision to [the wife] by way of personal maintenance”. iv) As against that, on at least some of the occasions when clear advice was given it was certainly questionable – Mr Howard would go much further than that: see, for example, the advice in relation to the lifetime maintenance for the wife referred to in paragraphs [28]-[30] and [79] below and the advice in relation to the lump sum provision for the daughter referred to in paragraph [79] below. v) Initially, the husband’s solicitors had proposed that the matter should proceed without any formal disclosure (see letter from them to the wife dated 4 March 2004). The wife’s solicitors wrote on 29 March 2004 accepting that full Forms E were not required but saying that something more than the limited disclosure on a Form M1 was appropriate. Although the wife’s solicitors pressed for, and eventually received, the disclosure they were seeking from the husband (see letters dated 7 and 20 May 2004, 8 and 10 June 2004, 5 July 2004 and 5 August 2004) it does not appear that the husband’s solicitors ever in fact pressed for similar disclosure from the wife. Indeed, as we have seen, the wife’s Form M1 was signed (and, for all I know, prepared) after the husband had signed the consent order. That said, the husband was well aware of his wife’s earnings. As early as 25 February 2004 he told his solicitor that she “earns approximately £800,000 per annum”, though as he also told her “he earns a lot more.”[25]I referred above to the husband’s ambivalence and constant vacillation in relation to the wife’s periodical payments. The point deserves elaboration, for the history is very revealing.[26]In a letter dated 29 March 2004 the wife’s solicitors had sought maintenance in the agreed amount but to continue only until her remarriage. The husband and wife then met and the upshot (see a letter from her solicitors dated 7 April 2004) was agreement between them that the periodical payments would “now be payable during her lifetime.” By 4 May 2004 the husband was plainly having second thoughts, e-mailing his solicitor that the periodical payments were to be “contingent on her status … [and to] end upon her cohabitation or remarriage.” He asked, “is that okay?” His solicitor wrote to the wife’s solicitors the following day, raising certain points of detail about the periodical payments but saying nothing about the husband’s fundamental change of position. His solicitor wrote to him on 20 May 2004 saying:
“I note what you say about the personal maintenance … Certainly this would not be payable if she remarried and I note you would also wish it, quite naturally, not to be payable if she were cohabiting. I will look out for this provision when we do get around to actually agreeing the nuts and bolts [sic] of the financial/property agreement.”
The same day she wrote to the wife’s solicitors indicating that the periodical payments were to cease or remarriage or cohabitation.[27]Almost immediately the husband did another U-turn, e-mailing his solicitor on 1 June 2004 to tell her that, following a discussion with the wife:
“I’d like to amend the wording regarding the £75,000. I’m happy to remove the clause that it applies until she co-habits or re-marries. However, I would like wording to cover that the £75,000 applies until [the daughter] leaves full-time education.”
It would seem that the husband forwarded a copy of this e-mail to the wife, for a few minutes later she e-mailed him:
“Thanks. In fact, according to [my solicitor] it has to state that this is independent of me co-habiting or re-marrying. If you wouldn’t mind passing this on to her as well – that way we can save some effort.”
The husband immediately forwarded this e-mail to his solicitor, with a covering message saying “I am comfortable with this.” A letter from the wife’s solicitors dated 10 June 2004 suggests that her instructions to them accorded with the first part of this, but not with the second:
“you … raised the question of co-habitation … we understand our clients have spoken and it is agreed this will not be referred to in the consent order.”
[28]An e-mail from the husband to his solicitor on 14 June 2004 shows that he was again having second thoughts:
“I’ve been thinking about the issue of paying … this 75K, and how we can word it in the agreement that I can provide the support she needs if she chooses to leave work, but that I don’t get strung up in 10 years because the wording comes back to bite me.”
His solicitor’s response in a letter dated 9 July 2004 commented on the detail but said nothing about the substance. A telephone call from the husband to his solicitor on 19 July 2004 sets out his instructions as being that he will:
“agree to pay any difference between £0 and £75,000 in her net income up to a maximum of £75,000 and this would also include her cohabiting with a partner such that the combined income of two people was still below £75,000”
. His solicitor then put that to the wife’s solicitors in a letter dated 23 July 2004, clarifying the husband’s position in a subsequent telephone conversation between the solicitors on 9 August 2004. The terms were accepted by the wife in a letter from her solicitors dated 18 August 2004 which enclosed a redraft of the proposed consent order providing (as in the final consent order approved by District Judge MacGregor) for periodical payments to continue notwithstanding that the wife had either a cohabitee or a future spouse. This draft was sent to the husband by his solicitor under cover of a rather bland letter dated 19 August 2004. Reporting that the wife “has agreed our proposals concerning her own maintenance” – an observation that Mr Howard criticised as missing the point – the husband’s solicitor asked him to “carefully read the … draft and let me have your full instructions.” As Mr Howard points out, the letter contained no advice.[29]On 23 August 2004 the husband telephoned his solicitor. Her attendance note records (emphasis added):
“[He] went back to the question of his having agreed, somewhat rashly, to support [her] in the event that her household falls below £75,000 per annum. This will extend to any cohabitee or future husband and it is in effect lifetime personal maintenance for her. He feels he is on a safe wicket because he cannot see that she would cohabit or re-marry anyone less than someone earning stratospheric amounts of money but it is a worry to him nonetheless and he wonders whether there is any way now on which it can be limited. I said I did not think so but would give it some consideration.”
Mr Howard characterises this advice as “appalling negligence.” The same day (the attendance note is undated but the date can be pin-pointed from a reference in a letter from the wife’s solicitors dated 24 August 2004) there was a telephone conversation between the two solicitors in the course of which the husband’s solicitor said:
“nor am I happy about the lifetime maintenance & we would undoubtedly prune this down.”
I said I did not think so but would give it some consideration.”[30]The next day (24 August 2004) the husband again telephoned his solicitor. Her attendance note records:
“The big picture – he is not going to pay mtnce if she cohabits or remarries. They are exchanging emails.”
The same afternoon the husband e-mailed the wife:
“To the extent that you … remained single (ie, not permanently co-habiting or re-marrying), and your income remained below £75K … I would indeed provide this safety net for life. However, if you permanently co-habit (ie longer than say a year or 18 months), or remarry, I don’t think I have an ongoing obligation.”
The next day (25 August 2004) the husband’s solicitor wrote to him. Referring to their telephone conversation on 23 August 2004 she said:
“Now back to the vexed question of your incredibly generous provision to support [her] by way of personal maintenance … the ramifications of it need to be pondered by you. This proposal amounts to the possibility that [she] will have “lifetime maintenance” regardless of whether she co-habits or re-marries … I am quite sure that this was never actually what you had in mind … I cannot actually see any way around this however. To take all the “personal maintenance” out of the proposed court order and replace it with a Side Letter simply saying that you will be a good guy … will not be likely to satisfy her at all. As your solicitor however, that is the provision I would much prefer. This has to be your choice.”
As Mr Howard observes, the proposal of a side letter was never put to the wife’s solicitors.

I am quite sure that this was never actually what you had in mind …

[31]Also on 25 August 2004 the husband telephoned his solicitor again. (It is not clear whether this was before or after he had received the letter, though the internal evidence of the letter itself would suggest that the telephone call was received after the letter had been written.) Her attendance note records:
“various further chats with [the wife]. He is having the 75K fallback in the order but – no claim against his estate, so only if he is alive! Will only pay if he has “surplus income” available to pay this sum … this to be made clear in side letter”
. The next day (26 August 2004) he had further telephone conversations with his solicitor. Her attendance note records:
“His latest position … is that he is prepared to bite the bullet and offer himself up for what amounts to lifetime maintenance provided that: 1 He has sufficient surplus income to pay it. 2 If he dies the maintenance claim dies with him.”
The following day (27 August 2004) the husband’s solicitor sent an e-mail to the wife’s solicitor, copying it at the same time by e-mail to the husband:
“We make it clear that it is not our opinion that our client should render himself liable for “lifetime maintenance” in this way, but he wishes to show his commitment to the well-being of [his daughter] and thus to your client by providing this safety net. However, it must be made clear that this maintenance safety net is contingent upon our client actually being able to afford to pay it out of surplus income and also it will die with him and you client would not then be entitled to make a claim on her own account against his estate.”
That is where matters rested.[32]So much for the facts. I turn to the law.[33]I should make clear at the outset what this case is not about. It is not concerned with the question of whether the court should exercise its jurisdiction under the Matrimonial Causes Act 1973 to give summary effect to an agreement between the parties, not yet embodied in an order of the court, where one party is seeking to resile from the agreement: Edgar v Edgar (1981) 2 FLR 19. I am here concerned with a party’s attempt to resile from an agreement which has been embodied in an order of the court and which therefore takes its effect not from the agreement but from the order itself: de Lasala v de Lasala [1980] AC 546, Thwaite v Thwaite [1982] Fam 1 and Jenkins v Livesey (formerly Jenkins) [1985] AC 424. Nor am I concerned with an interlocutory order. The order here is final. Moreover, the order I am concerned with is an order made under the 1973 Act. So the principles I am here concerned to apply are those which are, in some ways, peculiar to the Family Division and accordingly, in some – though not all – respects, differ from those which would apply to a final order made in the Chancery or Queen’s Bench Divisions.[34]The circumstances in which a final ancillary relief order that has been made by consent can be reviewed by the court have been surveyed by Bracewell J in Benson v Benson (deceased) [1996] 1 FLR 692 and, more recently, in S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1. I need not repeat the exercise. It is enough for present purposes to identify those circumstances. In the list that follows the labels are descriptive rather than definitive and should be treated as such. The situations which may trigger such a review are: i) if there has been fraud or mistake: de Lasala v de Lasala [1980] AC 546; ii) if there has been material non-disclosure: Jenkins v Livesey (formerly Jenkins) [1985] AC 424; iii) if there has been a new event since the making of the order which invalidates the basis, or fundamental assumption, upon which the order was made: Barder v Caluori [1988] AC 20; iv) if and insofar as the order contains undertakings: Mid Suffolk District Council v Clarke [2006] EWCA Civ 71; v) if the terms of the order remain executory: Thwaite v Thwaite [1982] Fam 1 and Potter v Potter [1990] 2 FLR 27.[35]There is, in addition, the statutory jurisdiction under section 31 of the Act to vary discharge or suspend certain types of order, including in particular, and so far as is material for present purposes, any periodical payments[36]In Shaw v Shaw [2002] EWCA Civ 1298, [2002] 2 FLR 1204, at paragraph [44], Thorpe LJ made the point that, although attempts to reopen final orders in reliance on either Livesey v Jenkins or Barder v Caluori share the same objective, the categories are otherwise obviously distinct, since one asserts a fundamental flaw in the trial process and the other an unforeseen supervening event. Be that as it may, as the same judge pointed out in Burns v Burns [2004] EWCA Civ 1258, [2004] 3 FCR 263, at paragraph [21], the legal consequences are the same whether the case be categorised as one of non-disclosure or supervening event.[37]There is an extensive jurisprudence analysing the means by which such applications can be brought before the court: Benson v Benson (deceased) [1996] 1 FLR 692, Harris v Manahan [1997] 1 FLR 205, S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1, and Shaw v Shaw [2002] EWCA Civ 1298, [2002] 2 FLR 1204. Much of this jurisprudence is both complex and, particularly where what is sought is to challenge a consent order made by a District Judge, confusing and confused. It is, I venture to suggest, yet another area where there is a pressing need for legislative clarification and simplification. As Bracewell J pointed out in Benson v Benson (deceased) [1996] 1 FLR 692 at page 606, Ward J (as he then was) had commented as long as 1989 in B-T v B-T (Divorce: Procedure) [1990] 2 FLR 1 that the various procedures were unsatisfactory and cumbersome, yet, as she dryly observed, “the difficulties persist.” That was in 1995. In 2002 in S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1, at paragraph [11], the same judge observed that the law was in “a most unsatisfactory state”. It is now 2006 and little has been done, and nothing effective, to remedy matters.[38]For present purposes it suffices to say that where it is sought to challenge a consent order in ancillary relief proceedings it is, or may be, possible to do so by one or more of the following: i) a fresh action to set aside the consent order; ii) an appeal; iii) an application to the judge at first instance: Robinson v Robinson [1982] 1 WLR 786 and Re C (Financial Provision: Leave to Appeal) [1993] 2 FLR 799.[39]I need not further explore this procedural quagmire, for the husband, as we have seen, has prudently had recourse to all three forms of application. I should, however, draw attention to what Thorpe LJ said in Shaw v Shaw [2002] EWCA Civ 1298, [2002] 2 FLR 1204, at paragraph [44]:
“The residual right to reopen litigation is clearly established by the decisions in Livesey v Jenkins and Barder v Caluori. But the number of cases that properly fall into either category is exceptionally small. The public interest in finality of litigation in this field must always be emphasised.”
He went on, having considered the various routes that may be taken in an endeavour to reopen a final order, to say:
“Given the importance of the overriding principle of finality in litigation, whatever the chosen route the court should clearly exact promptitude and censure delay.”
The significance of that last observation is illustrated by the fate of the application to re-open a consent order on the ground of non-disclosure in Burns v Burns [2004] EWCA Civ 1258, [2004] 3 FCR 263, where an otherwise meritorious application was dismissed for unreasonable delay. (I should add that in the present context none of this is affected by the more recent decision of the Court of Appeal in Den Heyer v Newby [2005] EWCA Civ 1311.)[40]I return to the substantive law.[41]In relation to setting aside on the grounds of fraud, mistake or non-disclosure I need add nothing, save to emphasise a point made by Lord Brandon of Oakbrook in Jenkins v Livesey (formerly Jenkins) [1985] AC 424 at page 445:
“I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.”
[42]Much of the debate before me has naturally focussed on the question of whether bad legal advice can ever be a justification or ground for setting aside a consent order. In my judgment it is clear that it cannot.[43]The potential significance of bad legal advice was first considered in Edgar v Edgar (1981) 2 FLR 19 and Camm v Camm (1983) 4 FLR 577. Those were both cases in which the court was concerned with the question of whether it should exercise its jurisdiction under the Matrimonial Causes Act 1973 to give summary effect to an agreement between the parties, not yet embodied in an order of the court, where one party was seeking to resile from the agreement. They were not concerned, as I am here, with a party’s attempt to resile from an agreement which has been embodied in an order of the court and which therefore, as I have pointed out, takes its effect not from the agreement but from the order itself.[44]I need not analyse either case in any great detail. That task was undertaken by Ward LJ in Harris v Manahan [1997] 1 FLR 205 at pages 219-222. He summarised their effect as follows at page 222:
“The effect of these authorities seems to me to amount to this: because the court is under a duty imposed by s 25 of the Matrimonial Causes Act 1973 to have regard to all the circumstances, and then under the duty itself to decide whether it will exercise any of its powers and if so how they are to be exercised, ‘bad legal advice’ must be taken into account whether as a good justification or as a weak excuse for a party not being held to his or her bargain. The quality of advice clearly has a part to play.”
As he put it at page 215:
“The judge is accordingly under a duty to have regard to the provisions of s 25 of the Matrimonial Causes Act 1973 and … he is not bound to approve an agreement which, due to ‘bad legal advice’, produces a manifestly unjust result.”
[45]In Harris v Manahan [1997] 1 FLR 205 the court was faced for the first time with the question of whether bad legal advice could be a ground for setting aside a consent order, specifically a consent ancillary relief order. Connell J at first instance held that it could not. He said (see [1997] 1 FLR 205 at page 222):
“In the present case I observe that the court has given its imprimatur to the agreement reached between the parties by making the order after hearing submissions from the parties’ representatives, and by expressing the view that it was just to disentitle either party from applying for an order under s 2 of the Inheritance (Provision for Family and Dependants) Act 1975. The role of the court was not therefore entirely passive, and the step between agreement and order was important … I conclude that there is a line to be drawn between the court’s approach to agreements, on the one hand, and consent orders, on the other hand and that it would not be right to add bad legal advice to the list of considerations which can justify the setting aside of consent orders of the court.”
Ward LJ (with whom both Evans LJ and Sir Thomas Bingham MR agreed) endorsed this approach, saying at page 223:
“In broad terms, I agree with his conclusion and with his sentiments.”
[46]Ward LJ began his analysis (at page 223) by identifying the two important principles expressed by the Latin phrases ubi jus ibi remedium and interest reipubliciae ut sit finis litium. He said:
“Mr Carden mounts a powerful argument that the law should provide a remedy for the wrong suffered by this appellant. It cannot be gainsaid that she has been wronged and that she has suffered an injustice. As between husband and wife an unfair order was made … This aspect of justice demands that she have a remedy against her husband.”
But, he continued:
“There are, however, other public policy considerations. Procedural delays and escalating costs are common scars on the face of justice. Consequently every impetus is given to encourage and to enhance early settlements of disputed claims. A conciliatory approach to find accord is the essence of good practice extolled by the Family Law Bar Association and the Solicitors Family Law Association … To allow a bargain struck to be set aside is inevitably to fuel recrimination. Bitterness and anger are inevitable concomitants of the conflict which arises from contested claims. Parties suffer. So do their children. It is inevitable that the focus of recrimination will swing from the incompetent solicitor and will be heaped upon the other party even though his conduct in the negotiations may not fairly be capable of being impeached. If the policy of the law is to encourage the clean break, then the law should also ensure that break with the past is final and that there is no turning back. This is the public interest that there be some end to litigation.”
This is the public interest that there be some end to litigation.”[47]Having referred to the speech of Lord Wilberforce in The Ampthill Peerage [1977] AC 547 at page 569, Ward LJ continued at page 224:
“What is bad legal advice? Must it be manifestly bad legal advice? Must it be confined to legal advice opposed to the advice of other professionals? How is it to be established? Privilege will have been waived, but is it invidious that a party’s solicitor and counsel be called by the other side? Mr Carden submits that in practice these are not real problems and that a case of bad legal advice is as instantly recognisable as the elephant. Yet when pressed to propose the principle which supports his submission, he is driven to assert it in terms of fairness and justice. I think it inevitable that the test be framed in those terms. It is a wide test. Justice is a multi-faceted jewel and it is precious even if it has a minor flaw. To deny justice to the wife is hard – and to that extent justice is imperfect; but justice must also be done to the husband; to do justice to children is paramount; to do justice to the system into which these disputes are fed is also essential.”
He concluded:
“Like Connell J, I conclude, not without sympathy for the wife and not without regret that a wronged individual is again to be sacrificed on the high altar of policy, that justice demands that there be finality to this litigation and that bad legal advice should not be a ground for interfering.”
[48]Now that would seem clear enough, but Ward LJ concluded at page 225 with this somewhat delphic comment:
“Only in the most exceptional case of the cruellest injustice will the public interest in the finality of litigation be put aside. This is not such a case.”
This led the headnote writer of the report in [1997] 1 FLR 205 to summarise the decision as being that:
“the requirement of public policy that there be finality in litigation also required that save in the most exceptional case of the cruellest injustice, bad legal advice should not be a ground for interfering with a consent order. The present case was not so exceptional as to justify a departure from that principle, despite the injustice that the wife had suffered.”
It also led Mr Howard to submit, basing himself on Ward LJ’s use of the phrase that there be “finality to this litigation” (emphasis added) that the Court of Appeal was not intending to lay down any general proposition that bad legal advice could never be a ground for setting aside a consent order.[49]Harris v Manahan is also reported as Harris (formerly Manahan) v Manahan [1996] 4 All ER 454. There the headnote puts the point rather differently:
“Once a consent order had been made, bad legal advice was not one of the considerations which could justify the setting aside of the order in view of the fact that the policy of the law was to encourage a clean break and the public interest demanded that there should be some end to litigation.”
[50]The Court of Appeal returned to the question in Tibbs v Dick [1998] 2 FLR 1118. That was an appeal against a consent order made in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975, the main ground of appeal being that the appellant had entered into the order on the basis of bad legal advice. It is apparent from the following passage on page 1122 that Swinton Thomas LJ (with whom both Aldous and Stuart-Smith LJJ agreed) approached the question as it arose in relation to a consent order made under the 1975 Act on the same footing as if it had arisen in relation to a consent order made under the 1973 Act, even though it was “likely” in his view that the difference in the wording between the two statutes did in fact make a difference:
“The position in matrimonial causes may in certain limited circumstances differ from other cases in relation to agreements which have been entered into between the parties because of the particular provisions of s 25(1) of the Matrimonial Causes Act 1973, which provides that it shall be the duty of the court in deciding whether to exercise its powers to have the regard to all the circumstances of the case. The provisions of ss 2 and 3 of the Inheritance (Provision for Family and Dependants) Act 1975 are rather different and provide that the court shall, in determining whether the disposition of a deceased’s estate affected by his will or the law is such as to make reasonable financial provision for the applicant, take into account particular factors. I do not propose in this case, because it is not necessary to do so, to come to a conclusion whether the distinction in the wording between these two sections makes any substantial difference but in my judgment it is likely that it does (emphasis added).”
[51]On behalf of the appellant in Tibbs v Dick reliance was placed on Edgar v Edgar (1981) 2 FLR 19 and Camm v Camm (1983) 4 FLR 577. Swinton Thomas LJ distinguished both cases at page 1122 on the ground that:
“the court was concerned there not with a consent order but an agreement between the parties which one party wished to enforce against the other.”
His conclusion at page 1121 was clear:
“even if it could be said that it was clear that the appellant had received bad or negligent advice from her lawyers, that would not in this case in my judgment be a ground for setting aside this consent order. A consent order will be set aside on grounds of mistake or fraud and, in matrimonial proceedings at any rate, material non-disclosure; see Jenkins v Livesey (formerly Jenkins) [1985] AC 424.”
Having then set out the key passages from Ward LJ’s judgment in Harris v Manahan [1997] 1 FLR 205, he continued at page 1123:
“Bad or negligent legal advice may in certain limited circumstances be a good ground for not enforcing an agreement between the parties because of the wording of s 25 of the Matrimonial Causes Act 1973. However, for my part I do not think that bad or negligent advice per se can ever be a ground for setting aside a consent order.”
[52]In S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1 at paragraph [21], Bracewell J said:
“In Tibbs v Dick [1998] 2 FLR 1118, the Court of Appeal stated that bad or negligent legal advice might be a ground for refusing to uphold a matrimonial agreement, but could not be a ground for permitting an appeal out of time against a consent order. This was repeated in Harris (formerly Manahan) v Manahan [1996] 4 All ER 454. In such cases if there is a remedy, it is to bring an action against the legal advisor. The wife in the present case stands as one with her solicitors.”
[53]In my judgment the law is accurately stated in the headnote to the report of Tibbs v Dick [1998] 2 FLR 1118:
“Bad or negligent legal advice may, in certain limited circumstances, be a good ground for not enforcing an agreement between the parties because of the wording of s 25 of the Matrimonial Causes Act 1973, but bad or negligent advice per se could never be a ground for setting aside a consent order.”
[54]Mr Howard also referred me to two other cases in his attempt to persuade me that defective legal advice could be a ground for setting aside the order made here by District Judge MacGregor. The first is de Lasala v de Lasala [1980] AC 546 where Lord Diplock referred at page 561 to the wife’s contention in that case that she was entitled to have the consent order set aside on the ground that she had received “bad advice” from her legal advisers. I do not read Lord Diplock as associating himself in any way with the proposition. He was merely setting out the wife’s case, which in the event he rejected on other grounds.[55]The other authority relied upon by Mr Howard is B v B (Consent[56]In my judgment the husband can, in principle, rely upon bad legal advice in support of that part of his Form A application which, founded on the statutory jurisdiction under section 31, seeks the variation, discharge or suspension of that part of District Judge MacGregor’s order which is, within the meaning of section 31(2)(b), a periodical payments order. That follows, in my judgment, from the decision of Thorpe J in B v B (Consent[57]Beyond that, however, the husband cannot, in my judgment, rely upon any allegation that he was led into the consent order by bad legal advice. That allegation is barred to him, as I read the authorities, by Harris v Manahan [1997] 1 FLR 205, Tibbs v Dick [1998] 2 FLR 1118 and S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1.[58]I should add for the sake of completeness that Ward LJ accepted in Harris v Manahan [1997] 1 FLR 205 (see at pages 215 and 225) that where – for example under FPR rule 8.1(3) as it was then in force (it has since been amended) – and on an application made within time an appellate judge is reviewing a consent order in circumstances where he is required to exercise his own discretion in substitution for that of the judge who made the order, then he is accordingly under a duty to have regard to the provisions of section 25 of the Matrimonial Causes Act 1973. And because of that the principles in Edgar v Edgar (1981) 2 FLR 19 and Camm v Camm (1983) 4 FLR 577 do apply, with the consequence that bad legal advice can be taken into account in deciding whether or not to approve the agreement. As Ward LJ put it at page 225:
“the judge is bound to approach the matter de novo and the materiality of ‘bad legal advice’ will be governed by the considerations of Edgar and Camm.”
He expressed somewhat similar views (at pages 216-217 and 225) in relation to the situation where, on an application made within time, a judge is rehearing the proceedings under CCR Order 37 Rule 1. However, none of this helps the husband in the present case, indeed Mr Howard did not rely upon these parts of Ward LJ’s judgment, not least because the relevant applications before me were all out if time.[59]There was some discussion before me as to whether undue influence can ever be a ground for setting aside a consent order. In Tommey v Tommey [1983] Fam 15, Balcombe J (as he then was) held that it could not. However, in Jenkins v Livesey (formerly Jenkins) [1985] AC 424 at page 440, Lord Brandon of Oakbrook said that:
“Balcombe J held, as a matter of law, that undue influence, even if proved, was not a good ground for setting aside a consent order. The question of the effect of undue influence in circumstances of this kind does not arise on this appeal, and, that being so, it would be undesirable to express even a provisional opinion upon it. I think it right to say, however, that I am not persuaded that Balcombe J’s decision on the question was necessarily correct.”
I need not explore the matter any further for, as we have seen, the husband has expressly disavowed any assertion that there was undue influence, just as he has expressly disavowed any submission that the influence to which he claims to have been subject is, of itself, any ground for setting aside District Judge MacGregor’s order.[60]There was more sustained argument, however, as to the precise ambit of the court’s jurisdictions(a) to release or modify an undertaking and(b) to decline to enforce an order that remains executory. I shall deal with them in turn.[61]The jurisdiction of the court to release or modify an undertaking, and the basis upon which the court can do so, was considered very recently by the Court of Appeal in Mid Suffolk District Council v Clarke [2006] EWCA Civ 71. The court was pressed with its earlier decision in Kensington Housing Trust v Oliver (1997) 30 HLR 608 as authority for the proposition that an undertaking can be released or modified by the court “if it is just to do so” or, as it was put by Jenkins LJ in Russell v Russell [1956] P 238 at page 294, “whenever it appears to the court that circumstances have arisen which make that course a proper one in the interests of justice.” That argument was rejected. Lloyd and Buxton LJJ (with whom Gage LJ agreed) both said that although that was a necessary it was not a sufficient condition for the exercise of the jurisdiction. Absent some other ground upon which an appellate court can properly interfere, the court can modify or release an undertaking contained in a final order only if(i) it is just to do so and(ii) there has been a “significant change of circumstances”: see per Lloyd LJ at paragraphs [17] and [47]. Buxton LJ summarised the position at paragraphs [55]-[56]:
“[55] … while it is no doubt a necessary condition that an order under this jurisdiction, as under any jurisdiction, should be just, I cannot accept that that is a sufficient condition, and cannot accept that this court in Kensington Housing Trust intended so to hold … [56] This jurisdiction should, therefore, be limited to significant change of circumstances. Some guide to the necessary extent of the change is provided by Butler-Sloss LJ at p 613 of the report of Kensington Housing Trust, where she suggested that developments must have occurred which made it no longer proper to punish the undertaker for breach of his undertaking … ”
The Lord Justice went on to observe that a “stringent standard” is required to be met to alter an undertaking in a final order.[62]A similar principle applies, in my judgment, when the court is being invited not to enforce an executory order.[63]The general rule was set out by the Court of Appeal in Thwaite v Thwaite [1982] Fam 1, following and applying Mullins v Howell (1879) 11 ChD 763 and Purcell v F C Trigell Ltd [1971] 1 QB 358. Ormrod LJ at page 8 said that:
“Where the order is still executory, as in the present case, and one of the parties applies to the court to enforce the order, the court may refuse if, in the circumstances prevailing at the time of the application, it would be inequitable to do so. Where the consent order derives its legal effect from the contract, this is equivalent to refusing a decree of specific performance; where the legal effect derives from the order itself the court has jurisdiction over its own orders per Sir George Jessel MR in Mullins v Howell (1879) 11 ChD 763 at p 766.”
Ormrod LJ went on to indicate that this jurisdiction was not confined to cases of fraud or mistake.[64]In Thwaite v Thwaite itself, the jurisdiction was held by the Court of Appeal to have been properly applied in an ancillary relief case where a consent order for the transfer of the matrimonial home to the wife had been made in April 1979 on the footing that she would be returning from Australia to live in it with the children. In the event, having done so, she shortly afterwards in August 1979 removed the children from the jurisdiction and returned with them to Australia. As Ormrod LJ put it at page 6:
“In these circumstances the husband declined to complete the transfer of his interest [the property] to the wife on the ground that he had agreed to the transfer on the understanding that the wife would make a home here for the children, and arrange for them to attend a local fee-paying school. The basis of the agreement had, therefore, been completely destroyed by the wife’s return to Australia with the children.”
He went on at page 9:
“The order allowing the husband’s appeal against the registrar’s order directing him to complete the conveyance of his interest, was right. There was jurisdiction to refuse to make such an order and, in the circumstances, as found by the learned judge, it would have been manifestly inequitable to enforce such an order. The learned judge was wrong in thinking that he had no jurisdiction to hear an appeal from the consent order in the circumstances of this case. In our judgment he had jurisdiction to set it aside on the basis of the fresh evidence, not available on April 30, 1979, as to the wife’s intention to make a home for herself and the children at [the property]. The order was based on the belief that she had a settled intention to do so; the fresh evidence proved, as the judge found, that she had no such settled intention.”
[65]Potter v Potter [1990] 2 FLR 27 takes the matter no further, Nicholls LJ merely observing at page 34, with a reference to Thwaite v Thwaite, that:
“The court retains a discretion to refuse to enforce an order which has still to be carried out if, in the circumstances prevailing at the time of the application, it would be inequitable to do so.”
That was said in the context of the possibility of a wife delaying for “an unreasonably long time” in producing the lump sum the payment of which by her was a pre-condition of the husband transferring the matrimonial home to her in accordance with the terms of a consent order.[66]In Benson v Benson (deceased) [1996] 1 FLR 692 at page 696 Bracewell J described the principle as being that:
“the judge has an inherent jurisdiction to make a fresh order for ancillary relief where the original order remains executory if the basis upon which it was made has fundamentally altered.”
I respectfully agree.[67]Merely because an order is still executory the court does not have, any more than it has in relation to an undertaking, any general and unfettered power to adjust a final order – let alone a final consent order – merely because it thinks it just to do so. The essence of the jurisdiction is that it is just to do – it would be inequitable not to do so – because of or in the light of some significant change in the circumstances since the order was made. Whether it is enough that there should have been a “significant change of circumstances”, to adopt the phrase used by Buxton LJ in Mid Suffolk District Council v Clarke [2006] EWCA Civ 71, or whether, as Bracewell J seems to have assumed in Benson v Benson (deceased) [1996] 1 FLR 692, it is necessary to meet the more stringent test in Barder v Caluori [1988] AC 20, namely that there has been a new event since the making of the order which invalidates the basis, or fundamental assumption, upon which the order was made, is a refinement which there is no need for me to explore here.[68]Finally, in the light of some of Mr Howard’s submissions, it is important to examine what precisely is the function of the judge – in this case the District Judge – invited to approve an ancillary relief consent order. As Ward LJ put it in Harris v Manahan [1997] 1 FLR 205 at page 212, “the question … is how assiduous the judge must be before approving the compromise.”[69]I start, as did Ward LJ, with some observations of Balcombe J (as he then was) in Tommey v Tommey [1983] Fam 15 at page 21:
“A judge who is asked to make a consent order cannot be compelled to do so – he is no mere rubber stamp. If he thinks there are matters about which he needs to be more fully informed before he makes the order, he is entitled to make such enquiries and require such evidence to be put before him as he considers necessary. But, per contra, he is under no obligation to make enquiries or require evidence. He is entitled to assume that parties of full age and capacity know what is in their own best interests, more especially when they are represented before him by counsel or solicitors. The fact that he was not told facts which, had he known them, might have affected his decision to make a consent order, cannot of itself be a ground for impeaching the order.”
That passage was said by Lord Brandon of Oakbrook in Jenkins v Livesey (formerly Jenkins) [1985] AC 424 at page 441 to embody “a great deal of practical common sense”, though as Ward LJ pointed out in Harris v Manahan [1997] 1 FLR 205 at page 212, Lord Brandon went on to reject the implication in what Balcombe J had said that there was no duty to give full and frank disclosure.[70]In Pounds v Pounds [1994] 1 FLR 775 at page 779, Waite LJ said that the observations of the House of Lords in Jenkins v Livesey (formerly Jenkins) [1985] AC 424 were:
“intended to be an assertion of general principle only, and not to impose on the court the need to scrutinise in detail the financial affairs of parties who came to it for approval of an independently negotiated bargain.”
He continued that the effect of the statute and the rules:
“is thus to confine the paternal function of the court when approving financial consent orders to a broad appraisal of the parties’ financial circumstances as disclosed to it in summary form, without descent into the valley of detail. It is only if that survey puts the court on inquiry as to whether there are other circumstances into which it ought to probe more deeply that any further investigation is required of the judge before approving the bargain that the spouses have made for themselves.”
[71]In Harris v Manahan [1997] 1 FLR 205 at page 213, Ward LJ summarised the position as being that:
“whilst the court is no rubber stamp, nor is it some kind of forensic ferret.”
He continued:
“It is important to stress the practical common sense of Balcombe J’s approach. The realities of life in the Principal Registry and the divorce county courts are that the district judges are under inevitable pressure and the system only works because the judges rely on the practitioners’ help. I would, therefore, be very slow to condemn any judge for a failure to see that bad legal advice is being tendered to a party. The statutory duty on the court cannot be ducked, but the court is entitled to assume that parties who are sui juris and who are represented by solicitors know what they want. Officious inquiry may uncover an injustice but it is more likely to disturb a delicate negotiation and produce the very costly litigation and the recrimination which conciliation is designed to avoid.”
A little later at page 216 Ward LJ added this: “Given that the function of the judge is as I have set it out above, then, as Lord Merriman P said in Peek v Peek [1948] P 46, 58: ‘... it is impossible to say that the court was in error merely because the judge had not conducted some more exhaustive inquiries.’ But, he went on: “It is possible to imagine that such a manifestly unjust order is in fact made when no reasonable judge would ever have made it, then it would be hard to say there was no error of the court. That would be a reason for having a fall-back right of appeal.” ‘... it is impossible to say that the court was in error merely because the judge had not conducted some more exhaustive inquiries.’[72]Ward LJ’s zoological metaphor brings to mind Lopes LJ’s famous description of an auditor in In re Kingston Cotton Mill Company (No 2) [1896] 2 Ch 279 at page 288, where he said that:
“An auditor is not bound to be a detective … He is a watch-dog, but not a bloodhound.”
These zoological metaphors reach a pleasing union in Megarry J’s description in In re Wallace’s Settlements [1968] 1 WLR 711 at page 718 of the duties of counsel appearing for the trustees where a judge is being invited to exercise the discretionary statutory jurisdiction to vary trusts in accordance with the Variation of Trusts Act 1958. He is a watchdog, but as Megarry J added at page 719, “however alert and persistent a watchdog should be, I do not think that he ought to be required to discharge the functions of a bloodhound or a ferret.”[73]The proper approach to an understanding of the judge’s function when exercising this jurisdiction is that indicated by Balcome J, Waite LJ and Ward LJ. 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.[74]It is against this background of legal principle that I turn to the opposing submissions. The starting point is Mr Scott’s ready and frank acceptance that the consent order approved by the District Judge was in certain respects both in a form which the court would never have made after a contested hearing – he acknowledges that certain matters were dealt with by way of undertakings in terms which the court would have had no power to order directly – and also more generous than would have been an order made in such circumstances.[75]Mr Howard, on the other hand, says that the point goes much further than Mr Scott is willing to accept. The husband has not repented of his generosity and is not now seeking to wriggle out of the order because it is very generous to the wife. The vice of the order, he says, is not that it is generous. The vice of the order, he says, is that it is not just an order that no court would have imposed on the parties. It is, Mr Howard submits, an order that is plainly and obviously incompatible with section 25 of the Act, wrong in law and principle, contrary to public policy, unbalanced, grossly unfair and potentially unenforceable; it is an order that the husband entered into having been put under severe pressure by his wife and having been badly let down by his solicitor, whose advice, according to Mr Howard was generally misguided and at times plainly wrong; and it is an order, he says, made in circumstances where “the court failed to exercise any sort of supervisory role and simply rubber-stamped it.” Indeed, says Mr Howard, it is manifest on the face of the order, and even more so on a cursory examination of the parties’ Forms M1, that the order was grossly unfair and, as Mr Howard puts it, “dangerously unworkable”. It is an order, he claims, which is likely in future years to create what he calls “immense uncertainty” for both parties and “severe financial hardship” to the husband.[76]Mr Howard makes explicitly clear that the husband does not seek to challenge the division of capital as between himself and his wife. The husband seeks to mount three challenges to the[77]So far as the husband’s lump sum provision for his daughter is concerned, Mr Howard’s submissions can be summarised as follows: i) The amount of the lump sum was based on a calculation provided to the husband by the wife (see the letter from the wife’s solicitors dated 29 March 2004) of “the cost of providing for [the daughter] during her dependency” and on the mutual understanding (see the letter from the wife’s solicitors dated 10 August 2004) that “at the end of the day, there is unlikely to be any surplus.” The calculation, which as it makes clear on its face covers the period until the daughter reaches the age of 21, in fact totals £2,366,147.30. Quite apart from the fact, as Mr Howard observes, that this calculation assumes that the daughter will have a nanny until the age of 21 – so it does, but this would have been obvious to the husband, and he chose not to query it – there is, Mr Howard submits, a fundamental fallacy in the calculation of the lump sum. Although the payments were to provide for the daughter’s support over a period of some twenty years, the lump sum was to be paid in full over the first ten years, and the calculation ignores the effect of the accelerated payment. The husband’s obligation was to pay £250,000 per annum, yet the calculation shows the annual cost of the daughter’s support in the first year at a little under £70,000 (the sum increases in subsequent years, because the costs are assumed to rise at 5% per annum, but even in the final year amounts to no more than some £120,000). The calculation thus ignores the fact that there will be very substantial surpluses available for investment at the end of each of the ten years during which the husband is making the annual payments. Mr Howard tells me that he calculates the resulting accumulated surplus by the time the daughter reaches the age of 18 as amounting to at least £2,700,000 and perhaps as much as £3,000,000. Mr Howard submits that in these circumstances there was a mutual mistake. ii) Secondly, Mr Howard submits that a lump sum payment of this order of magnitude for a child is wrong in principle and cannot be justified under section 25 of the Act. He accepts that parents may be as generous as they like – though submitting that they must exercise their generosity voluntarily, outside the framework of the Act and without the compulsion of an order – but submits that it would be, as he puts it, highly unusual for a parent even voluntarily to put in place arrangements for a toddler that will give her free access at the age of 18 to a fund worth at least £2,700,000 and which, as he points out, may at any time be augmented by a further significant lump sum payment under the husband’s irrevocable nomination of his death-in-service benefit in accordance with paragraph 6 of his undertakings. Moreover, as Mr Howard points out, this nomination, being irrevocable, does not take into account the husband’s current partner or any future children he may have and means, for example, that if he works until the age of 65 his daughter will be entitled to this benefit until the age of 29. iii) Thirdly, Mr Howard points out that the effect of paragraphs 6 and 7 of the husband’s undertakings is to give his daughter a double benefit – a double payment – in the event of his death within the next nine years, for she will in that event receive both his death-in-service benefit in accordance with paragraph 6 and also the benefit of the term assurance policy provided for in paragraph 7. iv) Fourthly, Mr Howard submits that the combined effect of the order and the associated undertakings is to leave the husband vulnerable to being stripped of his capital assets at any time. The order provides (see paragraphs 2 and 3 of his undertakings and paragraph 1 of the curial part of the order) for the entirety of the outstanding balance of the £2,500,000 to be payable immediately upon the happening of any one of a number of events any of which, according to Mr Howard, may perfectly possibly occur within the next nine years. Moreover, paragraph 1 of his undertakings prevents the husband voluntarily leaving his employment before the lump sum has been paid in full. On the basis, according to Mr Howard, that the husband’s realisable assets are worth some £4,150,000, the effect of the order is, for example, that if the husband was to lose his job next week he would immediately be stripped of over half his remaining liquid capital. This, says Mr Howard, is a plain injustice, compounded by the fact, as he would have it, that since this is a lump sum payment there is no judicial remedy available, as there would be if the provision was by way of child maintenance. This is, in truth, he says, a periodical payments order in disguise but without the protection that the husband would have if it were in fact a periodical payments order (see Corbett v Corbett [2003] EWCA Civ 559, [2003] 2 FLR 385). v) On top of all this, Mr Howard conjures up the spectre of the husband being imprisoned if the balance becomes payable in circumstances where he cannot immediately lay his hands upon the amount then outstanding. vi) In these circumstances, says Mr Howard, the lump sum order is not merely generous but seriously flawed in principle and, if any of the provisions for early payment is triggered, grossly unfair to the husband. Since the order is still in large part executory, I can and should, he says, quite apart from any other remedy the husband may have, exercise what Mr Howard says is my jurisdiction in accordance with Thwaite v Thwaite [1982] Fam 1 to decline to enforce an order if to do so would be inequitable.[78]So far as concerns the husband’s periodical payments provision for his wife, Mr Howard’s submissions can be summarised as follows: i) Mr Howard accepts that there can be no objection in principle to the court accepting undertakings even when it cannot make orders. But, he says, there is an important difference between orders that the court does not have power to make because there is a lacuna in the statute (for example payments to third parties) and orders that the court must not make because it is explicitly prohibited from doing so by statute. The order in the present case, he says, falls into the second of these categories because of section 28(1)(a) of the Act. ii) Secondly, Mr Howard says that no court could in conscience enforce the periodical payments if, for example, the wife were in fifteen years time to marry a penniless artist and give up work. Since it is questionable, according to Mr Howard, if the husband would in those circumstance be entitled to seek a variation if his own circumstances had remained unchanged, the proper course is, he says, to discharge here and now what he calls this unsatisfactory and likely unenforceable undertaking and permit the husband, in accordance with Dart v Dart [1996] 2 FLR 286, to seek a suitable periodical payments order against himself. iii) Alternatively, Mr Howard submits that the court’s jurisdiction under section 31 of the Act is not confined to, if typically it is only exercised in, cases where there has been a change in circumstances. That is not, he submits, a necessary pre-requisite to a variation application. He relies in this context upon what Thorpe J said in B v B (Consent[79]In relation to bad legal advice the husband’s case, as articulated by Mr Howard, is that there is nothing in his solicitors’ file to suggest that the husband was ever advised that the court would be prohibited from making a periodical payments order to continue beyond the wife’s remarriage, or that his daughter would have a lump sum of at least £2,700,000 or even £3,000,000 available to her as soon as she turns 18 (more, if she were to receive in addition the benefit of the irrevocable death-in-service nomination in accordance with paragraph 6 of his undertakings), or that this was wrong in principle. Most serious of all, says Mr Howard, is that, not merely was the husband never advised that he was not bound to consent to an order in the terms of what had been agreed in relation to periodical payments; he was in fact, as we have seen, given completely the opposite advice. This last, says Mr Howard, must amount to grossly bad advice. In the same vein Mr Howard describes as “breathtaking” the fact (see an e-mail from the husband to the wife on 25 February 2004) that his solicitor apparently said that “she only has one concern” about what had been agreed – and that on a technical matter to do with the husband’s maintenance obligation for his daughter which Mr Howard does not in fact see as a problem.[80]Mr Howard seeks to escape from Harris v Manahan [1997] 1 FLR 205 and the other ‘bad advice’ cases by asserting that in those cases the court had itself fulfilled its proper function of scrutinising the order and applying the section 25 factors. That, says Mr Howard, provides a safeguard for the party whose legal advice has fallen short of the expected standard. Here, however, he says, the situation was quite different. Not merely was the legal advice the husband had received grossly bad, but the court, he asserts, played no more than a passive role in making the order, receiving no submissions from the parties (who were not present) and, as he would have it, failing to exercise any sort of supervisory role and simply rubber-stamping the[81]Mr Howard points to Ward LJ’s recognition in the passage in his judgment in Harris v Manahan [1997] 1 FLR 205 at page 216 quoted in paragraph [71] above that there may be a “fall-back right of appeal” where the order is so “manifestly unjust” that “no reasonable judge would ever have made it”. That, he says, is precisely this case. The availability of an appeal, even an appeal out of time, is, says Mr Howard, a vital protection against injustice in a case such as this. It required no forensic ferreting, he says, to see that this order was, even on its face, “seriously flawed”. The order, he says, contained no fewer than seven provisions which should have rung alarm bells: recital (i), paragraphs 1, 3, 5, 6 and 8 of the husband’s undertakings and paragraph 1 of the curial part of the order. Moreover, he says, even a brief glance at the Forms M1 would have shown that, taking the transfer of the matrimonial home and the lump sum payment to the daughter together, the order awarded almost the entirety of the capital from an eleven-month marriage to the wife and daughter.[82]Finally, in relation to this part of his case, Mr Howard addresses me in terrorem. He says that I must face the reality that if this husband’s appeal is refused:
“it will be impossible to argue in the future that the court is anything other than a rubber stamp. District Judges will have no option other than to make orders where both parties insist on it. There will be no restriction at all on the orders that may be made.”
[83]Next, Mr Howard complains that the wife made inadequate disclosure and that the information she gave on her Form M1 about her earnings was inaccurate. There was, he says, a failure on the part of the wife to give full and frank disclosure.[84]Finally, Mr Howard points out that this was not a ‘clean break’ order, so that finality is not in any event achieved here. He says that since both parties here are relatively young, and their circumstances are likely to change dramatically over the course of the rest of their lives, it is almost inconceivable that the order as it presently stands could last the distance. He supplements this submission with the further assertion that it is very difficult to see how the court, either now or several years down the line, would respond to an application by the husband under section 31. Litigation that results in what he calls a fair and workable order now is, says Mr Howard, highly likely to reduce the need for complex and expensive litigation in the future.[85]In summary, Mr Howard says that I can and should set aside the order because of the combination of the following:(i) the emotional pressure the husband was under,(ii) the bad legal advice he received,(iii) non-disclosure by the wife,(iv) the fact that the order was over generous and(v) the fact that it was wrong in principle and should never have been approved by District Judge MacGregor.[86]What I have before me, as I have explained, is an application by the wife to strike out the husband’s various applications. How should I proceed?[87]In the first place I accept, as of course does Mr Scott, that this being a striking out application I must for present purposes accept the husband’s account of events. That is why I have made no extended reference to the wife’s evidence.[88]Secondly, the approach I should adopt is, in my judgment, that indicated by Bennett J in Rose v Rose [2003] EWHC 505 (Fam), [2003] 2 FLR 197.[89]Bennett J explained at paragraph [23] why RSC Order 18 Rule 19 continues to apply in this kind of case and why CPR Part 3.4(2) does not. As he put it, and I respectfully agree:
“Ord 18 r 19 and/or the inherent jurisdiction continue to provide the family court with the power to strike out applications.”
[90]The dispute before Bennett J was as to the ambit of the inherent jurisdiction in this context. Miss Florence Baron QC (as she then was) in support of her submission (see paragraph [25]) that “the court must see to it that the parties’ resources are not wasted in fruitless applications. The resources of the state are finite and the courts should not be clogged up by cases with no prospect of success” took the judge to a number of authorities which she submitted (see paragraph [24]) demonstrated “the powers of the family court to control or filter out unmeritorious applications or applications unlikely to succeed”: Jenkins v Livesey (formerly Jenkins) [1985] AC 424, Barder v Caluori [1988] AC 20, Harris v Manahan [1997] 1 FLR 205, P v P (Consent[91]Having cited the relevant passages from those judgments Bennett J continued at paragraph [28]:
“I am entitled to strike out the husband’s application under the court’s inherent jurisdiction, if it is right so do to. It seems to me to be quite unrealistic to say that a family court, when acting under Ord 18 r 19(1)(a)–(d) and/or under the court’s inherent jurisdiction, cannot apply the authorities to which Miss Baron referred in order to achieve a just result. If, strictly speaking, Ord 18 r 19(1) sits uneasily with the authorities I have referred to, then I see no reason why the authorities cannot, and every reason why they should, be applied when the court is exercising its inherent jurisdiction. In my judgment, it is absolutely essential in ancillary relief cases that the court should be able to put a stop to applications seeking to reopen matters already decided by a court, whether by consent or after a contested hearing, if the court is satisfied that no useful purpose will be served by reopening the matter. I therefore propose to apply them.”
Finally, he drew attention at paragraph [29] to the passage in Thorpe LJ’s judgment in Shaw v Shaw where, as we have seen, the Lord Justice had said that the number of cases that are likely to be reopened is “exceptionally small”. “The question I have to decide” said Bennett J, “is whether the instant case is, in reality, one of them.” Holding that it was not, that in reality the husband’s application to set aside the consent order in that case was (see paragraphs [33]-[34]) a “non-starter” and “doomed to failure”, Bennett J struck out the husband’s application.[92]Mr Scott’s starting point, with which I entirely agree, is that it is a fundamental principle of public policy, applicable as much in the context of ancillary relief as in any other context, that there should be finality in litigation – a principle which, as he rightly says, applies with particular force where an order has been made by consent. There is, as he says, a strong public interest in parties reaching agreement in cases such as this, for an agreed order will save time, costs and stress for the parties and reduce the burden on court resources which unhappily are both limited and at present desperately over-stretched. An order, he says, should be disturbed only for good and clear reasons. I agree. Furthermore, he says, and again I agree, it is no part of the court’s function to give relief in a case such as this to a husband – or, for that matter, a wife – who having initially been generous later regrets his generosity. As Mr Scott rightly says, there is no public policy against generosity and no public policy against the court enforcing an over generous order willingly entered into. On the contrary, as he points out, generosity on the part of a husband who is also a father is likely to generate an easier relationship with the mother that can only be for the benefit of the children.[93]The question, as Mr Scott correctly says, is whether the husband here can, at least arguably, bring himself within any of the recognised exceptions to the general rule. In my judgment he cannot.[94]I can start by clearing the ground. There is not – there cannot be – any suggestion that circumstances have changed in any material respect since the consent order was made. True it is that the wife ceased to work – and thus demanded that the husband start making payment of the periodical payments – rather sooner than the husband had anticipated (though in the event she subsequently returned to work and did not pursue her demands). But this is not the kind of change of circumstance that can justify re-opening the order. It is simply the happening, albeit sooner than expected, of an event for which the order itself made specific provision. This is not the case of an unexpected supervening event. It is, if it is anything, a case where, as the husband would have it, there was a flaw in the trial process. It follows, therefore, and for reasons which I have already explained, that the husband cannot rely upon either Barder v Caluori [1988] AC 20 or Thwaite v Thwaite [1982] Fam 1. He cannot take advantage of the fact that parts of the order are still executory, nor of the fact that parts of the order are embodied in undertakings. He is, in principle, confined to asserting – and it matters not for this purpose by what precise means he brings his application before the court – that the consent order should be set aside on one or other of the three recognised grounds of fraud, mistake or non-disclosure.[95]As a matter of law, it is not open to the husband to argue that the order should be set aside because of bad legal advice. The authorities demonstrate, in my judgment, as Mr Scott puts it, that that contention is trumped by the need for finality. Nor can the husband rely upon the fact, assuming it to be the fact, that he was put under pressure. Let it be assumed for the sake of argument that Balcombe J was correct in Tommey v Tommey [1983] Fam 15. Let it be assumed, therefore, that a consent order can be set aside on the grounds of duress or undue influence. But pressure, even unfair pressure, falling short of undue influence cannot, in my judgment, suffice on any view. As Mr Scott says, and I agree, the need for finality and certainty makes it inappropriate to set any lower hurdle. And the simple fact, as we have seen, is that the husband explicitly disavows any allegation of undue influence and accepts that the influence which he alleges cannot of itself suffice to set aside the order.[96]Nor, in my judgment, can the husband seek to avoid the order by relying upon either mistake or non-disclosure, for in my judgment he cannot even arguably establish either. So far as concerns the alleged mistake of fact (see paragraph [77] above), the simple fact is that there was no operative mistake. Quite apart from the fact that the calculation itself suggested that there would be a surplus – being the difference between the aggregated expenditure of £2,366,147.30 and the aggregate lump sum of £2,500,000 – the correspondence shows that the parties recognised that there might indeed be a surplus. On 23 July 2004 the husband’s solicitors wrote to the wife’s solicitors:
“Our client would also require a side letter (or an undertaking on your client’s part to be incorporated in the consent order) confirming that in the event that your client does not apply all of this money as maintenance for [the daughter’s] upbringing, that it will be invested for her and the fund so realised to be made over to [her] absolutely upon her attaining the age of 21.”
That was confirmed by the wife’s solicitors in a letter dated 10 August 2004 (one of the letters relied upon by Mr Howard in support of his argument that there was mutual mistake):
“in the event there is a surplus, she will of course invest it and pay any accumulated fund over to [the daughter] absolutely upon her attaining the age of 21 years.”
Indeed, as early as 25 February 2004 the husband, in an e-mail to the wife discussing the lump sum provision for his daughter, had referred (emphasis added) to the £2,500,000 as “the 21 year stream of cashflows (with 5% cost inflation built in, and no discounting)”.[97]So far as concerns any alleged mistake of law this is merely an attempt to dress up with a different label what is in reality a complaint by the husband that he was badly advised. In any event, Mr Howard, in my judgment, has wholly failed to identify any even arguable error of law.[98]So far as concerns the suggestion of non-disclosure, it has to be borne in mind that the husband never sought disclosure from the wife. Moreover, and this is the key point, he was well aware (see paragraph [24] above) that her earnings were vastly in excess of what was stated explicitly in her Form M1. The fact is that Mr Howard has not been able to point to any significant non-disclosure on the part of the wife, and that, bearing in mind Lord Brandon of Oakbrook’s observations in Jenkins v Livesey (formerly Jenkins) [1985] AC 424 at page 445, must be fatal to this part of his complaint.[99]Insofar as the husband’s complaints are based on the over generosity and, as he would have it, the unfairness of the order, there is, in my judgment, nothing here so egregious as to give him any even arguable basis for complaint. I cannot see that any question of public policy arises. And the fact that in a number of respects the husband’s undertakings either go beyond what the court could have ordered or go beyond what it would have ordered is of itself neither here nor there.[100]As has often been pointed out, and it is important to realise that this applies as much in this context as in any other (see, for example, Lord Brandon of Oakbrook in Jenkins v Livesey (formerly Jenkins) [1985] AC 424 at page 444 and Butler-Sloss LJ in Kensington Housing Trust v Oliver (1997) 30 HLR 608 at page 611), the court can perfectly properly accept undertakings which impose obligations that the court could not itself impose, and such undertakings are nonetheless just as enforceable as an order of the court. As Butler-Sloss LJ put it:
“Undertakings are convenient since a party can promise to do or abstain from that which a court would be unable to order. In that way an undertaking may cover a situation not capable of being the subject of a court order.”
[101]In particular, I reject Mr Howard’s attempted distinction between orders that the court does not have power to make and orders that the court must not make. There is no such distinction. Moreover, and perhaps more to the point, it is, in my judgment, a mis-reading of section 28(1)(a) of the Act to say, as Mr Howard does, that it “prohibits” the court accepting an undertaking in the form that the husband was here willing to give. It is one thing to say that the court cannot itself award periodical payments beyond remarriage. It is a very different thing to say that, as a matter of public or legislative policy, the court is forbidden to lend its aid to such an obligation voluntarily assumed and embodied in a formal undertaking. And in my judgment there is no such principle.[102]As Mr Scott helpfully pointed out, the relevant public policy is still to be found articulated in Hyman v Hyman [1929] AC 601, the ratio of which, as he says, is that there is a public interest in ensuring that a wife – or, I should add, in modern conditions a husband – does not become an unnecessary burden on public funds. Hence the rule that she cannot contract out of her entitlement to maintenance without the approval of the court. Now it may be, as Mr Scott is prepared to accept, at least for the purposes of argument, that the same principle would apply if a husband was proposing to transfer all his assets and income to his wife. But, as he says, and I agree, provided that a husband leaves himself adequately provided for it is not for the court to tell a wealthy man who has had legal advice that he is not to be generous, even very generous indeed. The courts in practice – and rightly – give the parties considerable latitude to reach their own agreements, recognising that they may have their own entirely proper private reasons for wishing to be more generous, or, as the case may be, less demanding, than the court might think the circumstances warrant. And the simple fact is, notwithstanding Mr Howard’s rhetoric, that the husband here has not so stripped himself of either his assets or his income as to bring the case, even arguably, within anything remotely approaching hailing distance of being able to take the benefit of any principle of public policy.[103]More specifically, Mr Scott submits, and I agree, that although the Act provides for periodical payments to cease on remarriage there is no public policy against making provision which may endure beyond remarriage. Indeed, as he points out, every Duxbury award does precisely that.[104]Precisely similar arguments, in my judgment, apply to the husband’s complaints in relation to the provision for his daughter.[105]Nor, in my judgment, is the husband’s case improved by describing the consequences of his generosity as unfair or even grossly unfair. The fact is that the husband agreed to the order, knowing it to be “incredibly generous” and much more generous than any court would have ordered (see paragraph [24] above). Mr Scott submits that the best measure of fairness is not what a court might have ordered but what the parties have actually agreed. There is force in that, but I prefer to proceed on a simpler and clearer basis. A consent order can be set aside on the grounds of fraud, mistake, non-disclosure and (I am prepared to assume for present purposes) undue influence. It has never hitherto been suggested that in circumstances not falling within one or other of such categories a consent order can be set aside simply on the basis that it is unfair – even very unfair – to one party. Unfairness not involving fraud, mistake, non-disclosure or undue influence is not, in my judgment, a ground for setting aside a consent order.[106]That leaves only the husband’s final major complaint, that the District Judge should never have approved this consent order and that on this ground he is entitled to have it set aside. I do not agree. No doubt the District Judge in this case would have been within her rights to refuse to make the consent order, at least without the attendance of the parties and absent further explanation. No doubt the District Judge was entitled, if she chose, to play the detective. But she was not obliged to do either of these things, and her failure to do so cannot of itself, as Balcombe J explained in Tommey v Tommey [1983] Fam 15 at page 21 and Ward LJ in Harris v Manahan [1997] 1 FLR 205 at page 216, be a ground for seeking to have the order set aside.[107]I reject Mr Howard’s assertion that the consent order was on its face so manifestly flawed – so manifestly unjust – that no reasonable judge properly exercising her judicial discretion could properly have approved it. There is, in my judgment, no warrant for Mr Howard’s suggestion that the District Judge acted here as no more than a passive rubber-stamp. It would have been apparent to the District Judge that the order was generous – extremely generous – to both the wife and the child, but that was not of itself any reason why the District Judge should not approve it, if she thought it proper to do so, let alone any reason why she should have felt obliged to withhold her judicial imprimatur. After all, the husband’s Form M1 showed him to be a very high earner and still to have, even after transferring the former matrimonial home to the wife, far from insignificant capital assets.[108]Finally, I should add in relation to this part of his case, that I entirely repudiate Mr Howard’s suggestion that if I disallow the husband’s application in this case, District Judges will have no option but to make whatever consent orders are placed in front of them if the parties insist. That rhetorical flourish, if Mr Howard will allow me to say so, displays both faulty logic and an erroneous view of the law. A District Judge exercising this jurisdiction can never be required to make an order, however pressing the entreaties of the parties and whatever the eloquence of their lawyers. The District Judge always has to exercise her discretion, even if presented with a draft consent order. The fact that in the present case I have come to the conclusion that the husband cannot have the order set aside on the ground that the District Judge should not have approved it, does not carry with it, whether as a matter of law or as a matter of logic, any implication that the District Judge was bound to make the order. She was not. But she chose to do so, and in what I am satisfied was the proper and conscientious exercise of her discretion. The case, in my judgment, does not fall within the very exceptional kind of case postulated by Ward LJ in Harris v Manahan [1997] 1 FLR 205 at page 216. Another District Judge might have taken a different view. Another District Judge might have declined to make the order without first hearing from the parties and, conceivably, even after and despite hearing the parties. But that is beside the point. District Judge MacGregor cannot, in my judgment, be faulted for acting here as she did.[109]Nor do I think that any of Mr Howard’s other complaints afford the husband any even arguable right to have the order set aside. Insofar as they amount in reality, at the end of the day, to complaints that the order, either in respect of his daughter or in respect of the wife, was so generous as to be wrong in principle, I reject them for reasons which, mutatis mutandis, I have already explained. As to the others, no doubt the denizens of Lincoln’s Inn would find much scope for disputation as to the precise nature of the various rights granted and retained in relation to the wine cellar but this cannot affect the validity of the order or give the husband any right to have it set aside. The parties’ intentions are quite clear and the order can, I have no doubt, be enforced as between them in personam whatever its other effects may or may not be. Similarly, although the drafting of paragraph 8 of the husband’s undertakings leaves much to be desired any defects in that respect are not, in my judgment, so fundamental as to make the order bad for uncertainty. Any differences between the parties could, if need be, be resolved by an entirely legitimate process of construction.[110]At the end of the day, Mr Scott submits and I agree, this is a husband who quite manifestly cannot bring himself within the “exceptionally small” category of cases to which Thorpe LJ referred in Shaw v Shaw [2002] EWCA Civ 1298, [2002] 2 FLR 1204. Whether assessed individually or in combination, none of the matters upon which Mr Howard relies provides the husband with any even arguable basis for having the order set aside. And that goes, I should add, whichever jurisdictional route the husband seeks to avail himself of. It follows that each of his applications which seeks the setting aside of the order must be struck out. In my judgment, they disclose no properly arguable cause of action and, to adopt Bennett J’s phraseology in Rose v Rose [2003] EWHC 505 (Fam), [2003] 2 FLR 197, it would serve no useful purpose to allow them to proceed. On the contrary, to allow them to proceed any further would be to strike at the very finality which is so very important, not least in this particular jurisdiction.[111]Mr Scott further submits that I should in any event take the same course because of the husband’s delay in bringing his various applications. In the light of the decision to which I have come this is not a matter which, in the event, calls for decision. It suffices in the circumstances if I say that if there was otherwise substance in the husband’s applications I would probably not have struck them out simply on the ground of delay.[112]Thus far I have been considering the husband’s various applications to set aside the consent order. But he has also made an application under section 31 of the Act which, in my judgment, stands in an entirely different position.[113]I can take the point very shortly. Section 31 entitles the husband to apply for an order varying, discharging or suspending that part of the consent order which constitutes an order for periodical payments. That entitlement is not in any way affected either by the fact that the order was a consent order or by the fact that the relevant provisions are contained in undertakings rather than in the curial part of the order. Nor, and on this point I agree with Mr Howard, is it a necessary pre-requisite to the exercise of jurisdiction under section 31 that there has been some change in circumstances since the order was made. No doubt, as Mr Scott observes, the court will usually be reluctant to intervene, absent any change of circumstances, where, as here, the order was made by consent and less than a year before the application is made. But that goes at most to the way in which the court may usually be expected to exercise its jurisdiction, not to the existence of the jurisdiction itself. Moreover, as Mr Howard correctly submits, relying for this purpose on what Thorpe J said in B v B (Consent[114]In the light of the conclusion to which I have come I propose to say little about the merits of the husband’s application under section 31. That is a matter for another day. But I have come to the conclusion in all the circumstances, and having regard to the amplitude of the jurisdiction as explained by Thorpe J in B v B (Consent[115]I propose therefore to strike out(i) the notice of appeal, the CPR Part 8 claim and the application to the Family Division and(ii) that part of the husband’s application in Form A which is not based on section 31. I invite the parties to agree an appropriate form of order and appropriate directions for the future conduct of the husband’s section 31 application. Failing agreement, the matter can be listed before me for brief oral submissions.

order

see section 31(2)(b). Order: Variation) [1995] 1 FLR 9, where Thorpe J (as he then was) exercised the jurisdiction under section 31 of the Act to extend and enlarge an order for periodical payments on the basis that the wife had received “bad legal advice”, using that phrase in the sense in which it had been explained by Ormrod LJ in Camm v Camm (1983) 4 FLR 577 at page 580. He did so explicitly on the basis (see at pages 21, 22-23) that the principles in Edgar v Edgar (1981) 2 FLR 19, as explained in Camm v Camm (1983) 4 FLR 577 are, as he put it, of equal application to variation and extension applications. That is plainly highly relevant to the husband’s application in his Form A, for that is an application which, at least in part, is founded on the jurisdiction under section 31. But that apart, what Thorpe J said is, in my judgment, of no assistance whatever to the husband. As Ward LJ observed in Harris v Manahan [1997] 1 FLR 205 at page 222: “As Connell J correctly observed, Thorpe J was dealing with an application to vary, not an application to set aside a consent order.” Order: Variation) [1995] 1 FLR 9, a decision which was not merely, in my respectful view, entirely correct but which has moreover, as I read Ward LJ’s judgment in Harris v Manahan [1997] 1 FLR 205, received the approbation of the Court of Appeal. order: i) First, he seeks to challenge the lump sum payment of £2,500,000 for his daughter (paragraphs 1, 2 and 3 of the husband’s undertakings and paragraph 1 of the curial part of the order). ii) Secondly, he seeks to challenge the periodical payments provision for the wife (paragraph 8 of his undertakings). iii) Thirdly, he seeks to challenge certain other parts of the order that render it, according to Mr Howard, either unenforceable, through lack of clarity or otherwise, or wrong in principle: a) the provision for the husband’s perpetual access to the wine cellar (recital (i)); b) the restriction on the husband selling any part of his company shareholdings during the next nine years (paragraph 2 of his undertakings); c) the lifetime provision by the husband, after a very short marriage, of private medical insurance for the wife (paragraph 5 of his undertakings); d) the irrevocable nomination (paragraph 6 of his undertakings); and e) what Mr Howard says is the lack of clarity in the mechanics of the periodical payments (paragraph 8 of his undertakings). Order: Variation) [1995] 1 FLR 9 and submits that there are strong public policy arguments for entertaining such an application now, given, as he puts it, that if the court leaves the relevant undertaking untouched it will almost inevitable give rise to complicated and expensive litigation in the future. order: for the significance of these submissions see the observations of Connell J in Harris v Manahan [1997] 1 FLR 205 at page 222 quoted in paragraph [45] above. So, says Mr Howard, this is a case where a litigant – the husband – was failed not once but twice. In this sensitive jurisdiction, he says, divorcing spouses are ordinarily afforded two layers of protection: competent legal advice, followed by the independent scrutiny of the court. In this case, he says, both these safeguards failed the husband. Hence, he submits, the vital importance of not closing off the appeal route. Order: Appeal Out of Time) [2002] 1 FLR 743 and Shaw v Shaw [2002] EWCA Civ 12, [2002] 2 FLR 1204. Order: Variation) [1995] 1 FLR 9, the jurisdiction under section 31 is exercisable on much wider grounds than the very limited jurisdiction to set aside a consent order (see paragraphs [55]-[56] above). It follows, in my judgment, that it is nothing to the point for Mr Scott to complain that the husband’s application under section 31 is in reality a thinly veiled attempt to appeal. So it may be, judged from the husband’s layman’s perspective. But it is not an appeal. Section 31 is a statutory jurisdiction to vary, discharge or suspend a periodical payments order. The fact that in a particular case some exercise of this jurisdiction may be indistinguishable in its practical effects from a successful appeal is neither here nor there. Order: Variation) [1995] 1 FLR 9, that it would be quite wrong to strike out the application under section 31. It cannot be said to be devoid of arguable merit. Nor can it be said that no useful purpose would be served by allowing it to proceed. His application may or may not succeed, though I cannot help thinking that it may, at least to some extent. Be that as it may, the husband, in my judgment, is entitled to proceed with his application under section 31. I see no need for the husband to be allowed to pursue his Dart v Dart application. The fact is that the court has made provision for periodical payments, albeit by way of accepting undertakings, and any adjustment of the consent order to which the husband is entitled can be effected pursuant to section 31.

Cited in 33 later judgments

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