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Family Law

The leading authority on all aspects of family law

14 APR 2014

JP v NP [2014] EWHC 1101 (Fam)

The full judgment is available below.

(Family Division, Eleanor King J, 9 April 2014)

Financial remedies - Jurisdiction - Equal division of assets - Judgment before grant of decree nisi - Appeal

The wife's appeal against an order setting aside the financial order for want of jurisdiction was allowed.

The husband and wife were married for 35 years and upon their separation the judge ordered an equal division of the total matrimonial assets of £42,000. There was a delay in decree nisi being obtained due to the parties being unable to locate a marriage certificate but when it was granted 11 months later, the case was listed for mention and the husband paid the wife £21,000.

In the following year the husband applied to set aside the order for want of jurisdiction. The order was set aside on the basis that by giving judgment prior to the grant of decree nisi he was in breach of s 23 of the Matrimonial Causes Act 1973. Permission to appeal that decision was granted to the wife. At this point the wife's costs were £16,000 and the parties were asked to consider their positions.

In line with the decision in Pounds v Pounds [1994] 1 FLR 775 the judge had the power to approve a draft consent order in advance of decree nisi and to direct that it should take effect at a later date. The same observation had to apply to contested matrimonial matters and not just consent orders.

Family Proceedings Rule 29.15 applied equally to contested proceedings and consent orders and gave the court discretion as to the date of implementation and in neither case was there a necessity or requirement for a fresh appraisal after decree nisi. In this instance the judge gave an indication of outcome by way of a judgment with the order to come into effect at a later date. The order was therefore made after decree nisi. The wife's appeal was allowed.

The husband was order to pay the wife's costs of the appeal and proceedings below.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

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Neutral Citation Number: [2014] EWHC 1101 (Fam)

Case No: FD10D02707

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/04/2014

Before :

MRS. JUSTICE ELEANOR KING DBE

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Between :

JP

Appellant

- and -

NP

Respondent

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Mr. Michael Conshaw (instructed by Duncan Lewis Sols) for the Applicant

Mr Christopher Bryden (instructed by Mills Chody Sols) for the Respondent

Hearing dates: 4th March 2014

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Judgment

The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mrs. Justice Eleanor King DBE :

[1] This is the third time an application has been made to set aside or appeal an order made in these financial remedy proceedings which follow the breakdown after 35 years of the marriage of JP (Wife) and NP (Husband). The total assets available for distribution are £42,000.

[2] On 15 August 2011 DDJ Cornwell (deceased), conducted a financial remedy hearing at the conclusion of which he gave a judgment indicating that the appropriate terms of the resolution of the financial applications would be for there to be an equal division of the assets. An order for costs was made against the husband. Due to difficulties in locating the marriage certificate, decree nisi had not been pronounced at the date of the hearing; the learned Deputy District Judge therefore ordered the wife forthwith to complete her application for decree nisi and that, upon pronouncement of the decree nisi, the matter was to be listed for mention.

[3] Eventually, 11 months later, the order was made and shortly afterwards the husband paid £21,000 to the wife. In circumstances which will be set out in a little more detail, thereafter on the 6 August 2013 the husband issued an application to set aside DDJ Cornwall's financial remedy order for want of jurisdiction. On 7 November 2013 DDJ Crowther heard and allowed that application and set aside DDJ Cornwell's order. The application to set aside was allowed on the basis that DDJ Cornwell had, by giving judgment prior to the granting of decree nisi made an order in breach of s23 Matrimonial Causes Act 1973 which prohibits the making of an order in financial remedy proceedings prior to decree nisi. DDJ Crowther granted permission to appeal her decision.

[4] It is accepted by both parties that if the appeal is allowed the wife will retain her £21,000; if refused, it is further agreed that she will issue fresh financial remedy proceedings and the likely outcome is that there would be an equal division of the assets, if any are left after payment of costs, which seems unlikely.

[5] Before embarking on a consideration of the jurisdictional issue, the court asked the parties to pause and consider whether there was any point from either side's perspective in continuing with the litigation. The answer was given by Counsel that we are where we are and that by this stage the costs consequences resulting from the litigation render the case quite impossible to settle. The wife's costs are now over £16,000.

[6] It is against this deeply depressing background that I turn to consider how this couple, with total assets of only £42,000 found themselves in the High Court struggling, with the aid of interpreters, to understand the nuances of a legal argument the outcome of which would benefit neither of them.

Procedural history

[7] On 3 June 2010 the wife issued a divorce petition. The parties had been married in India and had no copy of the marriage certificate. The wife's solicitors accordingly undertook to the court to provide either the marriage certificate or appropriate evidence of marriage. It was this evidential difficulty that caused the subsequent delay in obtaining the decree nisi which in turn was responsible for the difficulties now faced.

[8] On 14 June 2010, pursuant to s37 of the Matrimonial Causes Act 1973, an injunction was obtained by the wife freezing the sum of £42,000. This money was the sum that the husband had been awarded following TOLATA proceedings against his son in relation to the former matrimonial home. When the final hearing of the ancillary relief came on in front of DDJ Cornwall on 15 August 2011 the decree nisi had still not been obtained.

[9] I have available a note of judgment prepared by counsel for the wife at that hearing. The husband was unrepresented. The learned Deputy District Judge noted the length of the marriage, the poor health of the parties and the absence of pensions; he found that the only assets were the proceeds of the litigation already mentioned, together with several plots of land in India worth little or nothing. DDJ Cornwall unhesitatingly concluded that there should be an equal division of the assets and went on I will assume that the husband has made an application for ancillary relief and dismiss them both save for the payment of the lump sum.

[10] In relation to costs the judge ordered the husband to pay the costs of the proceedings on a publicly funded basis to be assessed if not agreed. The judge concluded by saying the wife needs to obtain the decree nisi.

[11] At the conclusion of that hearing an order was made in the following terms:

Upon hearing counsel for the Petitioner the respondent in person

And upon DDJ Cornwell having delivered an extemporary judgment as to the appropriate terms of the resolution of financial applications

IT IS ORDERED THAT

(1) The Petitioner do forthwith complete her application for decree nisi

(2) Upon pronouncement of decree nisi the matter be listed for a mention before DDJ Cornwell if available.

[12] The latter part of 2011 and 2012 saw various comings and goings in relation to decree nisi and the eventual obtaining of appropriate evidence of the marriage.

[13] On 15 March 2012 the wife's counsel sent an email to the court attaching a draft financial remedy order reflecting the terms proposed in the judgment together with a note of judgment, her email says:

..the DDJ did not say to hurry in drafting the order (fatal words in a busy barrister) as the decree nisi had not been issued. I understand that the case has not been finally closed yet as there were other procedural matters, outstanding never the less I think it is time the draft order was approved and readied to be issued.

The contents of the email make it abundantly clear that Counsel was as aware as the judge had been that there could be no order until after decree nisi.

[14] On 16 April 2012 the husband's solicitors wrote to the wife's solicitors asking about progress with the decree nisi and asking for a draft bill of costs. A chasing letter was sent on 30 April 2012 and decree nisi was finally granted on 16 May 2012. On 14 June 2012 the wife's solicitors sent a draft order for approval and sealing to the Principal Registry, it would seem that the mention provided for by DDJ Cornwell did not in fact take place, as on 14 July 2012 an order for financial remedy was made.

[15] On 20 November 2012 the husband's solicitors sent the wife's solicitors a cheque for £21,000 said to be pursuant to the order of 15/8/11. This left only the issue of the order for costs outstanding. The husband's solicitors asked for the bill. The wife's costs in round figures were £8,600, a very substantial sum when considered against the totality of the available pot. The husband was undoubtedly horrified at the size of the bill and the husband's solicitors wrote to those representing the wife on 6 February 2013 when, for the first time, it was suggested that DDJ Cornwell had had no jurisdiction to deal with the case in the way that he had. The letter said:

We should emphasise that our client would not now seek to challenge the payment to your client of the lump sum of £21,000 notwithstanding that the court had no jurisdiction to order payment. He does challenge the court's jurisdiction to make the costs order.

Our client does want these long running proceedings to be resolved and we are therefore instructed to propose that these proceedings all be concluded by payment to your client of the sum of £2,000 in respect of her costs. You will understand that this offer is made on the basis that your client has no entitlement to any costs

[16] Two months later, on 11 April 2013, having served the bill of costs on the husband, the wife obtained a default costs certificate, the husband not having raised any points of dispute on the bill of costs despite his challenge to the jurisdiction of the court contained in the letter of 6 February 2013. The husband was therefore ordered to pay the sum of £8660.59 together with £140 fixed costs of the assessment.

[17] The husband subsequently applied to set aside the default certificate alleging that DDJ Cornwell had no jurisdiction to make the order. The application was granted by Master Howarth on 7 June 2013, the costs order was set aside and the wife was ordered to pay the husband's costs of the application assessed at £2,160. This successful challenge to the order for costs was not however the end of the matter as on 6 August 2013, the husband, emboldened by his success in front of Master Howarth and notwithstanding what he had said in the letter of February 2013, issued an application to set aside the financial remedy order of 15 August 2011.

[18] The hearing of the husband's application to set aside DDJ Cornwell's order came before DDJ Crowther on 7 November 2013. DDJ Crowther made the following orders:

1. That the order of DDJ Cornwall made on 15/8/11 and sealed by the court on 14/7/12 be set aside for want of jurisdiction

2. W do pay H's costs assessed at £2,440 not to be enforced without the leave of the court

3. Leave to appeal

4. The costs of acquiring a transcript of the judgment of today are a necessary and proportionate disbursement.

[19] On 28 November 2013 the wife filed an Appellant's notice and the matter came on for hearing today.

The Judgment

[20] DDJ Crowther dealt with the jurisdictional issue briefly in a judgment of under two pages; the basis of her decision is encapsulated in para 5 of the judgment which reads as follows:

I have been very impressed by the arguments put forward by counsel but I have come to the decision that is essential to distinguish between orders obtained by consent and orders obtained after evidence and when the judge had to make a determination of contested issues. In for example, Pounds the court found that it was perfectly in order for a district judge to give advance approval to the terms of a consent order on the basis that nothing would be put in a perfected and enforceable order of the court until after decree nisi, and I think circumstances of that kind, which are very common in this court, can be sharply distinguished from what happened before district judge Cornwall. I think what is fatal to the wife's claim in the court order is the words that district judge Cornwell ‘delivered a judgment' as to the appropriate terms of the resolution. I do not think the wife can escape the fact that the word judgment was used and that was intended to be a formal determination of the parties' claims. I am told that the note of hearing is an unreliable document. I think it is a little late for that point to be raised. It is amongst the papers given to me and I see correspondence referring to it. Nobody appears to have disputed it until now, but in it he does dismiss the parties claim with the exception of the lump sum issue, and that is something which is done at the conclusion, where appropriate, of an ancillary relief judgment.

I do find in favour of the husband and I find that the order was not validly made. It will not have much impact on the financial case because, as I have said, he has acted in the spirit of what DDJ Cornwell said by sharing the sum with the wife. The only current issue therefore that follows from this judgment today is the issue of costs. I will have to hear what counsel has to say on that matter.

The Law: Appeals

[21] The Family Procedure rr 2010 apply to this appeal. FPR 2010 r30.12 provides:

(1) Every appeal will be limited to a review of the decision of the lower court unless -

(a) An enactment or practice direction makes different provision for a particular category of appeal; or

(b) The court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re‑hearing.

(2) Unless it orders otherwise, the appeal court will not receive -

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) the Appeal Court will allow an appeal where the decision of the lower court was -

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The Appeal Court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in that party's appeal notice unless the appeal court gives permission.

[22] This appeal has to be considered in accordance with the principles laid down by Thorpe LJ in Cordle v Cordle [2001] EWCA Civ 1791; [2002] 1 WLR 1441; [2002] 1 FLR 207 where Thorpe LJ restated the test laid down in the G v G (Minors) Custody Appeal [1985] 1 WLR 647; [1985] FLR 894 by saying:

[32] ...... ... any appeal from a decision of a district judge in ancillary relief shall only be allowed by the circuit judge if it is demonstrated that there has been some procedural irregularity or that in conducting the necessary balancing exercise the district judge has taken into account matters which were irrelevant, or ignored matters which were relevant, or has otherwise arrived at a conclusion that is plainly wrong

[23] In this case the ground of appeal is that DDJ Crowther erred in law in setting aside the order of DDJ Cornwell.

[24] Section 23 of the Matrimonial Causes Act 1973 states:

On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders ...

Section 23 therefore provides the jurisdictional basis for the making of financial remedy orders which orders cannot be made until on or after decree nisi regardless of whether they are made by consent or following a trial with a consequential judgment.

[25] The Court of Appeal first considered a case where an order purported to have been made prior to decree nisi in Munks v Munks [1985] FLR 576. Munks was a case where the Registrar (now a District Judge), made an order by consent prior to decree nisi being pronounced. When the order was challenged it was thought that the error might be corrected under the slip rule by amending the date of the order to that of the decree nisi. The Court of Appeal held that the Registrar had no jurisdiction to make the order prior to the decree nisi and an order made without jurisdiction and which one party is entitled to have set aside, cannot be saved by the slip rule or under the inherent jurisdiction.

[26] The issue came before the Court of Appeal two years later in Board (Board Intervening) v Checkland [1987] 2 FLR 257. On this occasion there had been an administrative error and despite the Registrar indicating that the order was to be made upon decree nisi, it was drawn up and signed before decree nisi had been made. The Court of Appeal followed Munks holding that as the order had been made without jurisdiction, it could not be revived by operation of the slip rule or the exercise of the inherent jurisdiction of the court. In the lead judgment May LJ observed

[p263]: One cannot by the operation of the slip rule, or by exercising the inherent jurisdiction of the court, breathe life into an order which the judge making it had no jurisdiction to make.

[27] Mr Bryden on behalf of the husband, draws the court's attention specifically to the short concurring judgment of Anthony Lincoln J [p263]:

I agree s 23 of the Matrimonial Causes Act 1973 dictates in the clearest possible language the moment with reference to which the court has to exercise its jurisdiction in determining financial arrangements. It is upon the decree, or thereafter. To make such determination before that point in time is clearly not authorised by the language of the act. The court has to consider the resources of the parties at that time and not earlier. That remains so where the parties have consented. Even in the case of consent order there must be some inquiry by the court into the resources of the party on or after the decree. The registrar made an order on 23 May 1983, which was to take effect on an ascertainable date in the future. When that date ultimately materialised, the resources could well have materially changed. The short answer to the appellants in this case is that, if the true intention of the registrar was to make an order that was to take effect in the future, he had no jurisdiction to form such an intent.

[28] The issue most recently came before the court in the well known case of Pounds v Pounds [1994] 1WLR 1525. The case again concerned a consent order. Due to a clerical error, the perfected consent order carried the date when the registrar had signified his approval of the proposed settlement rather than the sealing date. Singer J held that the registrar had no power on a date prior to the decree nisi to direct that the order should be made on a date subsequent to the decree nisi. He held, in line with Anthony Lincoln J's observations in Broad that a consent order was only valid if some judicial act was brought to bear upon it after the date of the decree nisi. The consent order was therefore he held a nullity.

[29] The Court of Appeal allowed the husband's appeal reinstating the order. In the course of their judgment the Court of Appeal considered the date from which an order takes effect. The governing rule at the date of Pounds and to which the Court of Appeal referred was RSC, Ord 42 r 3

RSC, Ord 42,r3 provides:

(1) a judgment or order of the court ... takes effect from the day of its date.

(2) Such a judgment or order shall be dated as of the date on which it is pronounced, given or made, unless the court ... orders it to be dated as of some earlier day, in which case it shall be dated as of that other day

[30] The Rules governing the date from when a judgment or order takes effect have moved on since Pounds. RSC Ord 42,r3 became CPR r 40.7(1). The new rule removed the power of the court to order the judgment or order to take effect from an earlier date but was otherwise unchanged as to substance providing that:

r40.7 -(1) A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify

[31] On 6 April 2011, (4 months before DDJ Cornwell heard the case), the new FPR 2010 (FPR 2010) came into force. FPR r 2.1‑(1) provides:

‘(1) Unless the context otherwise requires, these rules apply to family proceedings in -

(a) the High Court

(b) a county court; and

(c) a magistrate's court

[32] FPR Part 29 contains various Miscellaneous provisions and FPR r29.15 provides, in identical terms as CPR 1998 r40.7(1) :

29.15 A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify

[33] In Pounds the Court of Appeal held that the Registrar had power under RSC Ord 42, r3 to approve a draft financial consent order in advance of the decree nisi and direct that it should take effect at a future date. It should be noted that Anthony Lincoln J did not have the opportunity to consider the effect of RSC Ord 42 r3 in the short judgment he gave in Board.

[34] In Pounds the Court of Appeal were specifically considering a consent order and emphasised that matrimonial consent orders were not subject to special rules exempting them from the provisions in RSC, Ord 42 r 3; in my judgment the same observation must equally have applied to a contested matrimonial matter resulting in a judgment; the distinction made by the Court of Appeal was as between matrimonial and non matrimonial orders rather than consent orders and non‑consent orders, further the rule specifically refers to judgments which implies that contested issues are covered by the rule. I am reinforced in that view as:

a) rule FPR 29.15, which has ultimately replaced RSC, Ord 42 r3, and which applied at the date of the hearing, applies to all family proceedings unless the context otherwise provides (FPR r2.1‑(1))

b) Financial remedy proceedings are family proceedings,(s8(4)(b) Children Act 1989), and

c) the rule applies to all family proceedings no distinction being made as to whether by consent or otherwise.

[35] I am therefore satisfied that the learned DDJ had power under FPR 29.15 to direct that a judgment shall take effect from such later date as the court may specify.

[36] The question remains as to whether notwithstanding the court's power under FPR 29.15 to determine the effective date of the judgment, there is a distinction to be made as between consent and non‑consent orders for the purposes of s23 MAC 1973 such that the Deputy District Judge, in hearing this case in the way he did, made a determination the nature of which amounted to the making of an order prior to decree nisi and therefore without jurisdiction.

[37] The Court of Appeal in Pounds in considering whether the consent order in question had been made in breach of s23 MCA 1973 examined both the nature of the judicial act and mechanics of consent orders :

i) In relation to the judicial act itself, (and contrary to Anthony Lincoln J's view in Board), the Court of Appeal said that the Registrar's approval took place at one stage only; where the judicial approval pre dated decree nisi there was no necessity for any fresh appraisal of its merits at decree nisi when the only step required was that the order should be perfected and sealed

The Court said [1541 l]

The timing of the financial consent order, like that of the decree nisi, involves a judicial exercise at one stage only. That occurs at the point when the registrar signifies his approval of the draft order. If decree has already been pronounced, he can make the order there and then. The approval date and the order date will in that instance be the same. If, on the other hand, the pronouncement of the decree is still pending, the registrars judicial function will include, in addition to the approval of the draft order, the necessity to choose between two possible courses of action in regard to the subsequent machinery required to bring into being an order for giving effect to the draft which he has approved.

ii) In relation to the mechanics and the extent of the judicial inquiry necessary prior to such approval being given, the Court of Appeal considered s33A Matrimonial Causes Act 1973 which provides as follows:

S33A Consent orders for financial provision on property adjustment

(1) Not withstanding anything in the preceding provisions as part of this act: on an application for a consent order for financial relief the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with that application.

The Court of Appeal described the effect of s 33A as follows: [page 1540 g]

The effect of s33A and the Rules and Directions made under it 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 descending 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.

[38] In Pounds the Court of Appeal therefore concluded overall that:

(1) the court has power under Ord.42,r.3(2) when initially making an order to direct in advance that its order shall bear some date other than the date on which the terms are approved, which date can be decree nisi;

(2) Where a consent order is made, the judicial exercise is required at one stage only this can be at the time when following a broad appraisal of the parties' financial circumstances, approval is given to the proposed order and can be prior to the granting of decree nisi.

(3) It is settled law that an order which is a nullity, because it was made (or directed to be dated) on a day when the court had no jurisdiction to make it, cannot have validity conferred on it retrospectively by use of the slip rule.

Accordingly Waite LJ concluded: [1549 t]

I consider the consent order was validly made; that the attribution of the date of the appointment before the registrar instead of the date of the sealing was a purely clerical error; and that the judge ought to have ordered the consent order to be amended under the slip rule by inserting the sealing date as its true date.

[39] Mr Bryden, on behalf of the husband submits that these conclusions can not be equally applied to contested applications, (a submission accepted by DDJ Crowther at the set aside hearing); there is, he argues a fundamental difference between a consent order and a case where the court heard argument and gave judgment. The consent order he submits is peculiarly protected by s33A which provides an exception, he says, to the normal quasi inquisitorial jurisdiction of the court under the Matrimonial Causes Act and accordingly, he argues, the ratio of Pounds is constrained by the limited function of the court in those circumstances.

[40] Mr Bryden reminds the court that DDJ Cornwell gave a judgment against the background of opposed proceedings. In hearing the case and in making a determination, Mr Bryden argues that DDJ Cornwell fell into the error highlighted by Anthony Lincoln J in Board v Checkland (set out above in paragraph 27 above), in that the Deputy District Judge determined the case prior to decree nisi and in doing so fell foul of s23 MCA 1973. DDJ Crowther agreed with this approach saying that what was fatal to the wife was that DDJ Cornwell used the words delivered a judgment and by the use of the word judgment, DDJ Crowther held, DDJ Cornwell was indicating that what was intended was a formal determination of the parties' claims. and was therefore in breech of s23 MCA 1973

[41] A key feature of Anthony Lincoln J's rationale Board was that the court had to consider the resources at decree nisi and not before as the resources of the parties could have materially changed between determination and order; accordingly there was no jurisdiction to make an order which would take effect in the future. Mr Bryden submits by making what was identified by DDJ Crowther as a final determination no such necessary consideration would take place at decree nisi. Mr Bryden submits that in those circumstances without the failsafe afforded to consent orders by s33A MCA 1973, until such time as the Court of Appeal overturns or specifically disapproves the observations of Anthony Lincoln J, the court is bound to dismiss the appeal.

Discussion

[42] It is clear from the order made by DDJ Cornwell on 15 August 2011 that he knew that he did not have the jurisdiction to make an order before decree nisi:

i) In the recital he carefully referred to the appropriate terms of the resolution of the financial application

ii) He ordered the wife to apply for decree nisi

iii) He ordered the matter to be listed for mention upon pronouncement of the decree

It follows that DDJ Cornwell undoubtedly had in mind the provision of s23 MCA 1973. The question for DDJ Crowther therefore was whether DDJ Cornwell, notwithstanding his understanding of his jurisdictional limitations, nevertheless in making that proleptic order fell foul of the provision?

[43] Mr Bryden submits that the distinction between a consent order and a contested issue (and the reason why FPR 29.15 has no place in a contested case), is that unlike consent orders which are protected by s33A, there is, following a contested hearing, a continuing duty to investigate and circumstances may change between the hearing and the making of the order upon decree nisi, it follows he says that an indication of outcome in whatever form falls foul of s23 MCA 1973, such an indication is he says, as was held by DDJ Crowther, intended to be a formal determination of the parties' claims and therefore determines the date from which the judgment is to take effect.

[44] DDJ Crowther held that the very use of the phrase delivered a judgment by DDJ Cornwell on the face of the order is fatal and the judicial equivalent of placing one's foot over the base line when serving in tennis - it is a fault which cannot be remedied by the fact that the ball thereafter lands within the box. The use of the word judgment submits Mr Bryden is indicative of a determination having been made before decree nisi and therefore in breach of s23 MCA 1973.

[45] Mr Cronshaw on behalf of the wife argues that the principles applied in Pounds apply equally to contested hearings as to consent orders and, he says, references to s33A MCA 1973 for the purposes of drawing a distinction to the contrary are not well founded. Regardless he says, of whether the court approves a proposed consent order on the basis of the schedule of information or indicates a view of an appropriate outcome having heard evidence and given judgment, circumstances can change which would result in one of the parties objecting to the order being drawn up and perfected and there is therefore no logical reason why there should be a fresh judicial act decree nisi following a trial and not following the approval of a proposed consent order.

[46] Mr Cronshaw submitted that the procedure adopted by DDJ Cornwell, (or variations on the same lines), is perfectly proper and one commonly used in practice. He referred by way of example to the case of McCartney v Mills McCartney [2008] EWHC 401 (Fam); [2008] 1 FLR 1508. Bennett J heard the case over many days and gave a judgment running to 327 paragraphs, all in the absence of a decree nisi and at the conclusion of which he said: [322]

Accordingly, I shall order that the husband will pay to the wife on or after decree nisi a lump sum of £16.5m

[47] Mr Bryden submits that Bennett J had no jurisdiction to make such an order. The effect of his action in making a determination prior to the decree nisi was to fall foul of s23 MCA 1973; the order, made in McCartney, Mr Bryden said, (with understandable diffidence), is a nullity and is not saved by FPR 29.15 (then CPR 40.7(1)), as where a judge has in fact made a determination in breach of the s23 MCA and therefore without jurisdiction, a procedural ability otherwise to defer an order would not render it valid.

[48] With respect I disagree with Mr Bryden's analysis; in my judgment a determination is not necessarily synonymous with a judgment and is a word used neither in s23 MCA 1973 or FPR 29. 15.

[49] The wording of the rule, (which I have already held applies equally to consent and opposed applications), anticipates that a judgment will be either:

i) a final determination taking effect from the moment of judgment or

ii) an indication of outcome with the consequential order to be drawn and made at a later date, (here upon the making of decree nisi),

[50] Anthony Lincoln J referred to the fact that even in consent orders there must be some inquiry by the court into the resources of the party on or after the decree. That, with respect to Mr Bryden, does not help him as, not only is that obiter observation inconsistent with the later ratio in Pounds, but if that were the case, consent orders approved prior to the making of decree nisi would be as vulnerable as orders made after a contested hearing. Mr Bryden submits that consent orders are saved by s33A MCA. I cannot agree, the issue with which we are concerned is an issue of timing and not of depth of inquiry and s33A in my judgment deals with the latter not the former.

[51] In Pounds the Court of Appeal held that: There was neither the scope nor the necessity for any fresh appraisal, after decree nisi, on the merits of the proposed consent order [1549d]. In my judgment precisely the same principle applies to indications of outcome contained in a judgment; the only difference being that in a consent order, policy has limited the depth of inquiry necessary where parties have reached a concluded agreement, whereas in a case where there is a dispute requiring resolution by the court, a more detailed consideration of the evidence is needed through the calling of witnesses and the hearing of argument resulting in the giving of a judgment.

[52] In my judgment in both cases FPR 29.15 gives the court discretion as to the date of implementation and in neither case is there a necessity or requirement for any fresh appraisal after decree nisi. I should emphasise that it remains the case that FPR 29.15 has no impact on the basic jurisdictional principle encapsulated in s23 NMCA 1973 and regardless of whether the court is dealing with a consent order on the one hand or an disputed issue on the other, if the court purports to make an order or provides for a judgment to take effect prior to decree nisi, the resulting order will be a nullity and cannot be saved by FPR 29.15.

[53] There will be those rare cases where circumstances change fundamentally between judgment, (or approval of the consent order), and decree nisi but the court has in its arsenal the ability to deal with such situations; for example when hearing an application for notice to show cause why an order should not be perfected, consideration can be given to allegations of serious non disclosure which have come to light since approval of the order or judgment; similarly provision can be made for a hearing pursuant to Edgar v Edgar [1980] 1 WLR 1410 where one party regrets a bargain.

[54] In my judgment it is apparent from the wording used by DDJ Cornwell that he was giving an indication of outcome by way of a judgment with the order to be made at a later date pursuant to FPR 29.15 the date being the granting of decree nisi. In accordance with that indication, an order was made after and not before decree nisi. It follows that I allow the wife's appeal as I find that the Deputy District Judge did not err in law having had at all times the jurisdiction to hear the case, give a judgment and provide for the consequential order to be made after decree nisi.

[55] Costs must follow the event in this case and I make an order that the husband pays the wife's costs of the appeal here and below to be assessed if not agreed. It is most unfortunate that the husband did not maintain the pragmatic view he took earlier in the proceedings that is to say that whilst he did not accept that the court should have made the financial remedy order, the outcome was one which he did not seek to disturb. In deciding to pursue the application to set aside the substantive order, having succeeded in setting aside the costs order, the husband unfortunately seemed, as he danced on a jurisdictional pin head, to lose sight of the fact that the outcome was still right. The jurisdictional argument has been a luxury which this family, of all families, simply could not afford even if, as was indicated to me at the start of the hearing, the litigation was by then driven entirely by considerations of costs.

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