COURT WOULD NOT SET ASIDE FINAL ORDER FOR DIVORCE CAUSED BY A SOLICITORS ERROR: IT IS MORE THAN A SIMPLE CLICK OF A MOUSE

In Williams v Williams [2024] EWHC 733 (Fam) Sir Andrew McFarlane refused to set aside a final divorce order when the order had been made due to a mistake by the applicant’s solicitors.  It is a clear example of the problems that can occur by “online litigation”.  Once the mistake had been made it could not be put right.

“.. it is necessary to correct an impression given in the course of Mr Todd’s presentation of his case which was that the HMCTS digital divorce portal would deliver a final order of divorce where one was not wanted simply by ‘the click of a wrong button’. Like many similar online processes, an operator may only get to the final screen where the final click of the mouse is made after travelling through a series of earlier screens. First of all, a solicitor, who may have a series of different divorce proceedings ‘live’ on the system at any one time, must select one particular case. It was at this stage that the error made by Vardags’ operative apparently took place. Thereafter a number of other screens must be traversed, each of which prominently bears the names of the parties (for example ‘Williams v Williams’). At the final stage, after clicking the request for a final order, a further screen comes up inviting the operative to confirm that this is indeed what is sought – again the name of the case is prominently displayed on this screen.”

THE CASE

The applicant issued divorce proceedings against the respondent. A conditional order was made.  On the 3rd October 2023 the applicant’s solicitor, in error, applied for a final order.  The solicitors thought they were applying for a final order in respect of a different client with a similar name.

After discovering their mistake the applicant’s solicitors wrote asking the court to rescind the order, without giving any formal notice to the respondent.  A DDJ rescinded the order.

The respondent applied for a hearing, asking that the DDJ’s order be set aside and the final order remain in place.  This was to be hard by the President of the Family Division.

THE JUDGMENT

The judge allowed the respondent’s application. The DDJ should not have made an order without formal notice being given to the respondent. Further the court could, or should, not set aside the final order in any event.

1. 1. Before turning to the primary issue, it is necessary to correct an impression given in the course of Mr Todd’s presentation of his case which was that the HMCTS digital divorce portal would deliver a final order of divorce where one was not wanted simply by ‘the click of a wrong button’. Like many similar online processes, an operator may only get to the final screen where the final click of the mouse is made after travelling through a series of earlier screens. First of all, a solicitor, who may have a series of different divorce proceedings ‘live’ on the system at any one time, must select one particular case. It was at this stage that the error made by Vardags’ operative apparently took place. Thereafter a number of other screens must be traversed, each of which prominently bears the names of the parties (for example ‘Williams v Williams’). At the final stage, after clicking the request for a final order, a further screen comes up inviting the operative to confirm that this is indeed what is sought – again the name of the case is prominently displayed on this screen.

1. 1. The potential, which Mr Todd described, for a litigant in person, or their well-meaning relative, to operate the portal and make the same mistake as the professional operative at Vardags apparently made, does not exist. A litigant in person will only have access to their own case, with no potential for them to apply for a final order in a different divorce application.

(b) The DDJ’s 17 October Order

1. 1. The order of DDJ Underhill on 17 October was made without a hearing, with the judge ‘sitting at the Family Court at the Courts and Tribunals Service Centre’ following consideration of the Wife’s solicitor’s 6 October application requesting an order setting the final order aside. Mr Todd conceded that that application should have been made on formal notice to the Husband. He was correct to do so. FPR 2010, r 7.31(a) provides for notice to be given to the parties of the date, time and place ‘of every hearing which is to take place in a case to which they are a party’.

1. 1. Although the Husband’s solicitors were told of the application in correspondence on 11 October, the Husband was never formerly served. Indeed, the application expressly requested the court not to serve the Respondent as that was ‘unnecessary’. In any event, once they were aware of the application, the Husband’s solicitors wrote to the court on 13 October asking for the application to be listed for an on-notice hearing.

1. 1. In the circumstances, and despite Mr Todd’s attempts to uphold it, the order of 17 October cannot be considered as a valid order affecting the marital status of these parties. It was not constituted as it should have been as a formal, on notice, application to rescind a final order of divorce. Further, the Husband’s request for it to be listed on notice should have prevented the case ever being placed before the DDJ for a ‘paper’ determination. The order of 17 October 2023 must therefore be set aside with the analysis of the position of these parties proceeding as if that order had not been made.

(c) Setting aside the final order

1. 1. Mr Ewins was correct in placing heavy reliance upon the case of Shahzad v Mazher as the most recent primary authority. In Shahzad, the court [Moylan, Singh and Popplewell LJJ] conducted an extensive review of the authorities relating to the setting aside of a decree absolute of divorce (as final orders were then called). In Shahzad, a decree absolute had been pronounced notwithstanding the wife’s pending application to rescind the decree nisi [the ‘conditional order’ in modern terms] on the basis that the date of marriage had been incorrectly pleaded by the husband in order to assert that there had been two years’ separation, when in reality the couple had only been married for a year prior to the alleged separation date. At first instance the judge set the decree absolute aside, not only because of the allegation of fraud, but also because, procedurally, the decree should not have been granted while an application by the wife to rescind the decree nisi had been pending. The husband appealed on the basis that there had been no legal basis for setting the decree absolute aside. The Court of Appeal dismissed the husband’s appeal.

1. 1. The judgment in Shahzad, which is binding on this court, is important. It is convenient, therefore, to set out some of the relevant parts of the leading judgment of Moylan LJ at this stage.

1. 1. Moylan LJ [at paragraph 33] commenced his review of the authorities by reference to what had been said in Akhtar v Khan (Attorney General and Others Intervening) [2020] EWCA Civ 122 about the important role which a person’s married or unmarried status has in society; it is a matter that engages with public policy issues in addition to any private rights or interests. In Akhtar the focus had been upon the creation of a valid marriage, but, as Moylan LJ held at paragraph 34, the same importance applies to the dissolution of a marriage as it does to its creation.

1. 1. Moylan LJ gave further examples of Court of Appeal authority where the finality of a decree absolute was acknowledged and reflected in the court’s decision (Meier v Meier [1948] P 89 and F v F [1971] P 1 – as approved in P v P [1971] P 217).

1. 1. From paragraph 50 onwards Moylan LJ turned to consider the court’s power to set aside a decree absolute:

“[51] As referred to above, a decree absolute effects an important change of status. It is equivalent to a judgment in rem and, as a result, is an order which does not simply affect the personal rights of the parties to the decree but is an order which is conclusive as to a person’s status and is, what is sometimes termed, ‘good against the world’. Accordingly, everyone is entitled to rely on it as establishing that the parties are no longer married.

…

[54] The next authority is Callaghan v Hanson-Fox and Another [1992] Fam 1, [1991] 2 FLR 519, an important decision which analysed all the previous cases dealing with the circumstances in which the court might set aside a decree absolute. In that case, the husband sought the rescission of a decree absolute on the basis that the fact relied on in the petition, namely 2 years’ separation, had been false as the parties remained living together. It was, therefore, as in the present appeal, a case of alleged fraud in relation to the fact relied on under s 1(2) of the 1973 Act to establish irretrievable breakdown.

[55] Sir Stephen Brown P’s conclusion is set out in the Headnote:

‘… a decree absolute granted by a court with competent jurisdiction and after compliance with the correct procedural requirements was unimpeachable; that it was in the public interest that a decree absolute which affected status should be unimpeachable; and that, since there had been no procedural irregularity, the decree absolute was not only binding on the parties but should stand against all the world.’

In the course of his judgment, Sir Stephen Brown P summarised, at 8D–G and 526–527 respectively, the effect of the authorities to which he had been referred by (the then) James Holman QC, instructed by the Queen’s Proctor:

‘Mr Holman as amicus curiae has taken the court to all the reported cases in which a decree absolute has been held to be void. They are all cases where a decree has been held to be void because of a fundamental procedural irregularity. In Woolfenden v Woolfenden [1948] P 27 the application for decree absolute was made before the statutory time had elapsed. In Ali Ebrahim v Ali Ebrahim [1983] 1 WLR 1336 there had been total non-service of the petition. In Nissim v Nissim (1988) 18 Fam Law 254 there was a statutory defect because the case had purportedly been re-transferred to a county court from the High Court in circumstances where there was no statutory power so to do. It is to be noted in passing that subsequently Parliament hurriedly passed a statute to remedy the anomaly. In Butler v Butler (Queen’s Proctor intervening) [1990] 1 FLR 114 the defect arose from the fact that the petition for dissolution of marriage had in effect been presented within one year of marriage.

Mr Holman pointed out that in the cases where a decree has been held to be voidable they also turned upon procedural irregularity. He accordingly submits that there is no known case where a decree absolute has been set aside after it has been granted in circumstances of complete jurisdictional and procedural regularity. Furthermore, there is no reported case of a decree absolute having been set aside in circumstances of complete procedural regularity even where an allegation of fraud has been made.’

[56] Sir Stephen Brown P then referred to Bater v Bater, Kemp-Welch v Kemp-Welch and Crymes [1912] P 82 and Crosland v Crosland [1947] P 12, [1946] 2 All ER 91. It is relevant to note that in each of those cases the person seeking the rescission of the decree absolute had alleged that the court’s decision had been obtained by fraud. Sir Stephen Brown P quoted passages from those cases which, in his view at 10D and 528 respectively, ’emphasise the unimpeachable character of a decree absolute’. He then set out his conclusion, at 10D–E and 528–529 respectively:

‘As was pointed out in Bater v Bater [1906] P 209 a decree absolute affects status and is equivalent to a judgment “in rem”. It is in the public interest that a decree absolute should be unimpeachable where no question arises as to the jurisdiction of the court pronouncing it or as to the procedural regularity which led to its being made.'”

1. 1. Moylan LJ explained his ‘determination’ from paragraph 66 onwards:

“[67] I have set out above the key authorities which have considered the circumstances in which a decree absolute can be set aside. It is clear from these authorities that these circumstances are limited. They are limited because a decree absolute is a declaratory judgment which conclusively determines a person’s marital status. In addition to the parties, all public authorities and all other individuals are entitled to rely on the declaratory effect of the decree. This can have significant consequences across a wide range of issues including, for example, the right to marry. To take that example, if a prior decree absolute were set aside, any subsequent marriage would be void under s 11(b) of the 1973 Act.

…

[70] It is a conclusion which is also supported by the statutory framework. Section 18(1) of the Senior Courts Act 1981 provides, as set out above, that a party cannot appeal from a decree absolute when they ‘had time and opportunity to appeal from the decree nisi’. This makes clear that a party’s ability to challenge a decree is prior to its being made absolute. Sections 8 and 9 of the 1973 Act, as referred to above, are ‘restricted to the period before the decree is made absolute’: Callaghan v Hanson-Fox and Another [1992] Fam 1, [1991] 2 FLR 519, at 7B and 525 respectively. These provisions, as was said by Sir Jocelyn Simon P in F v F [1971] P 1, [1970] 2 WLR 346, point to ‘the importance Parliament attaches to the certainty of the change of status arising out of a decree absolute’.

[71] I turn finally to my determination on the facts of this case which I can also set out briefly.

[72] If the judge had set aside the decree absolute on the basis only of fraud as to the date of separation, this appeal might have taken a different course. However, the second part of his judgment made clear that he also set the decree aside because of procedural irregularity, namely that the decree had been made absolute in breach of FPR 2010, r 7.32(2) because the wife’s application to rescind the decree nisi was pending. This, as Mr Timson rightly accepted, made the decree absolute voidable. The judge was plainly entitled to decide to set the decree aside and, although he expressed his reasons very briefly, Mr Timson has not persuaded me that the judge’s decision was wrong or that there was any other flaw which would entitle this court to interfere with that decision.”

1. 1. I have referred to the leading judgment in Shahzad at some length, in part, to demonstrate the solidity of the earlier authority, as summarised by Moylan LJ, on the finality of a decree absolute. I am in full agreement with Moylan LJ’s analysis which is, as I have said, in any event binding on this court. Neither party argued that there should be any difference in approach as between a decree absolute and a final order of divorce in this respect; both orders are to be regarded in like manner. It is, therefore, in the public interest that a final order of divorce should be unimpeachable when ‘granted by a court with competent jurisdiction and after compliance with the correct procedural requirements’. A final order made without procedural irregularity should stand for all the world.

1. 1. The Wife’s submissions, which did not engage with Shahzad or earlier authority, focused upon possible procedural routes that a court might follow to correct an error. It is uncontroversial that a court may correct errors made in its orders where it has jurisdiction to do so. The power exists either under the court rules or through the exercise of the inherent jurisdiction. For the reasons given in Shahzad and earlier authority, the jurisdiction to review a decree absolute, and hence a final order of divorce, is, however, extremely constrained. Where it exists, and an order is voidable, there are strong policy reasons for the court not to set the final order aside.

1. 1. The court must approach the exercise of the procedural power, relied upon by the Wife, to set aside an order under r 4.1(6) or under the slip rule in r 29.16, with caution in the context of a final order, and particularly one relating to marital status. There is no reason for holding that the exercise of the inherent jurisdiction in this respect would be any less constrained. The clarification of the jurisprudence relating to these and similar rules given in Tibbles by Rix LJ explicitly does not relate to final orders:

‘Whether that curtailment goes even further in the case of a final order does not arise in this appeal’.

In any event, the mere existence of a procedural power to set aside or amend an order does not, of itself, give the court an open jurisdiction to exercise that power where there is clear authority on the approach to be taken to a particular category of order, as is the case here with respect to a final order of divorce. Against the background of clear authority as to the approach to be adopted given in Shahzad and the earlier cases, the existence of a procedural facility to set aside or amend in r 4.1(6) or r 29.16 (or under the inherent jurisdiction) in reality adds nothing and is of no relevance to the central question of whether, as a matter of substantive law, it is open to the court to set a final divorce order aside and, if so, whether it should do so on this occasion.

1. 1. Drawing matters together, there is no reported authority where a decree absolute or final order has been set aside in circumstances of complete procedural regularity. There is no authority establishing that a final order made in such circumstances is to be considered voidable, let alone void. Mr Todd could not point to any authority to make good his assertion that the exercise by the solicitor of their apparent authority to act for the Wife in applying for the order was vitiated by the fact that the Wife had not consented, thereby making the order voidable. I am unpersuaded that these circumstances do render the order voidable. Further, I accept Mr Ewins’ submission that the court should be very slow to open up a potential third stage in divorce proceedings where, post-final order, a party can come back and say that the application for the order was made by mistake. As the authorities make clear, a final order made without procedural irregularity should stand for all the world.

1. 1. For those reasons, I decline to hold that the final order made in this case was rendered voidable by the lack of actual consent from the Wife, where her solicitors were generally authorised to act for her and the court was entitled to accept the application for the final order made by them as being validly made on her behalf. There being no other reason to consider setting the order aside, the conditional order having been validly made and the Wife having been entitled to apply for a final order, the Wife’s application to set it aside must be dismissed.

1. 1. If, contrary to that conclusion, I am wrong and the order was voidable, it is necessary to go on to decide whether, in those circumstances, it should be set aside.

1. 1. As Sir James Munby P concluded in M v P, there is a general lack of appetite to find that the consequence of ‘irregularity’ is that a decree is void rather than voidable. In any event, the case put by Mr Todd, at its highest, was that the circumstances of this case render the final order voidable, rather than void. Assuming (which I do not) that that is correct, then a conclusion that the order is voidable does not, of itself, conclude matters. The court would have to move on and be persuaded that the final order should be set aside in order to do justice to all those whose interests were engaged. In that context, as held in M v P, in Shahzad and in the earlier cases, there is a strong public policy interest in respecting the certainty and finality that flows from a final divorce order and maintaining the status quo that it has established. Approaching the question in that manner, if the final order in this case were voidable because of the solicitors’ error in applying for it without their client’s authority, any public policy or other factor in favour of setting the order aside would be far outweighed by the almost invariable policy preference not to do so.

1. As a consequence, even if the facts of this case render the order voidable, the Wife’s application must fail and be dismissed