“RULE 1 FOR ANY JUDGE DEALING WITH A CASE” :SETTING ASIDE AN ORDER AFTER ONLY ONE PARTY HAS BEEN HEARD: SUPREME COURT OBSERVATIONS AND CASES IN THE CIVIL COURTS
There are some interesting issues raised in the Supreme Court judgment in Potanina v Potanin [2024] UKSC 3. The opening lines of the judgment, however, reiterate an important principle in relation to the need for a rehearing after a party has obtained an order without notice to the other side.
“Rule one for any judge dealing with a case is that, before you make an order requested by one party, you must give the other party a chance to object”
THE OBSERVATIONS IN THE SUPREME COURT
The court was considering a case where the wife had obtained a court order without notice to the husband. The husband applied to set aside that order and, after a hearing, that application was successful. The Court of Appeal allowed the wife’s appeal, finding that for the order to be set aside the husband had to demonstrate a “knock out blow”, with there being a very strong burden on the party seeking to set aside the order made without notice. The majority in the Supreme Court allowed the husband’s appeal. The hearing on notice was not confined to a review, on limited grounds, of the earlier order but a rehearing of the issues.
- Rule one for any judge dealing with a case is that, before you make an order requested by one party, you must give the other party a chance to object. Sometimes a decision needs to be made before it is practicable to do this. Then you must do the next best thing, which is – if you make the order sought – to give the other party an opportunity to argue that the order should be set aside or varied. What is always unfair is to make a final order, only capable of correction on appeal, after hearing only from the party who wants you to make the order without allowing the other party to say why the order should not be made.
2. This fundamental principle of procedural fairness may seem so obvious and elementary that it goes without saying. On this appeal, however, we are asked to review a practice which has developed in dealing with applications under section 13 of Matrimonial and Family Proceedings Act 1984 that violates this fundamental principle. The practice has its origin in some observations made obiter in a judgment of this court in Agbaje v Agbaje [2010] UKSC 13; [2010] 1 AC 628. So far as the report of that case shows, no argument was addressed to the Supreme Court on the point, which was not an issue in the appeal. However, those obiter dicta have subsequently been treated as authoritative guidance which lower courts must follow.
3. The procedural history of the present case shows the mischief which this has caused. After a day of reading and hearing argument from the applicant alone without notice to the respondent, the judge made an order in the applicant’s favour under section 13 of the 1984 Act. When the respondent was notified of the order, he was told that he had the right to apply to have it set aside, which he did. After hearing argument from both sides, the judge concluded that the order sought by the applicant was not justified and should not be made. So he set aside his initial order and refused the section 13 application: [2019] EWHC 2956 (Fam); [2020] Fam 189.
4. The Court of Appeal, however, following the practice by which they regarded the judge and themselves as bound, ruled that the judge should not have done this. No matter that after hearing what the respondent had to say the judge had come to the considered view that the application should be refused and gave detailed reasons for that conclusion. On what the Court of Appeal took the law to be, the respondent did not in fact have a right to say why the application should be refused unless he could show that the judge had been materially misled at the initial hearing held in his absence, which he could not do. Consequently, the Court of Appeal set aside the order made by the judge after he had heard argument from both sides and restored his initial decision (which he had concluded was wrong) reached after hearing from the applicant alone: [2021] EWCA Civ 702; [2022] Fam 23.
THIS ISSUES CONSIDERED IN THE CIVIL CONTEXT
This issue has been considered in the civil courts.
“an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside”
THE RULES: CPR 23.10
Application to set aside or vary order made without notice
23.10
(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied.
(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.
THE COURT OF APPEAL JUDGMENT IN THE AL-ZAHARA CASE
“[63] ……It follows that, to the extent that it is relevant and material, the hearing before Master Cook on 12 July 2017 was a rehearing of the issue whether to grant the extensions of time, not a review of his earlier decisions, and the appeal to me is (unusually) itself a rehearing of the application considered by Master Cook on 12 July 2017, albeit giving Master Cook’s decision due weight….”
“[72] Nothing has been said to me in the hearing of this appeal to suggest that the Master was reminded of the nature of the hearing before him which was that of a rehearing, not merely a review of his earlier decisions ….. As I have indicated, he approached the task he set himself by simply reviewing the material presented to him when he made the two extension orders. Whilst that is undoubtedly a significant part of the exercise, it is not necessarily the sole part. Whilst I differ from an experienced Master on a matter of this nature with considerable diffidence, I respectfully consider that the decision to refuse an adjournment to enable further evidence to be proffered on behalf of the Claimant to have been an error. I do not think it can simply be characterised as a case management decision with which, in the normal course of events, a Judge on appeal would not interfere: it was something that went to the heart of the exercise he was called on to perform and the decision not to permit further evidence to be given does suggest that the focus of the hearing, with the encouragement of the 1-6 Defendants, became too narrow.”…
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In my view, Foskett J was correct to hold that, if and in so far as Master Cook approached the hearing before him as a review rather than a rehearing, Master Cook was in error. Foskett J appropriately cited (at [62]) the following passage from paragraph [33] of Dyson LJ’s judgment in Hashtroodi in which Dyson LJ made it clear that an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing not a mere review:
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THE KEY JUDGMENT
The Court of Appeal held that the correct approach was that, when considering an order without notice, the application was heard by way of rehearing rather than review. This principle goes back to Hashtroodi v Hancock [2004] EWCA Civ 652
“In my view, Foskett J was correct to hold that, if and in so far as Master Cook approached the hearing before him as a review rather than a rehearing, Master Cook was in error.
Foskett J appropriately cited (at [62]) the following passage from paragraph [33] of Dyson LJ’s judgment in Hashtroodi in which Dyson LJ made it clear that an application
under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing not a mere review:
“[33] It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master]. This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master].” (emphasis added)
THE APPLICANT CAN CHALLENGE WHETHER IT WAS APPROPRIATE TO MAKE AN ORDER IN THE FIRST PLACE
In Haley -v- Siddique [2014] EWHC 835 (Ch) Judge Hodge Q.C., sitting as a judge of the High Court made it clear that the “Tibbles” criteria did not apply to an application to set aside an order made without a hearing, or on the court’s own initiative.
“Where an order has been made by the court of its own initiative, or without a hearing, the parties are entitled to apply to the court to have that order set aside or varied. On such an application, unlike one to set aside an order made at a hearing which the parties have either attended, or had an opportunity to attend, the restrictions contained within CPR 3.1(7), as laid down by the Court of Appeal in the case of Tibbles –v- SIG plc [2012] EWCA Civ 518, [2012] 1 WLR 2591 have no application. Since the parties have not had an opportunity of making representations to the court before an order was made without a hearing, or of the court’s own initiative, the parties are entitled to invite the court to review whether it was appropriate to make the order in the first place.”
