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Rules of evidence and procedure after Norman

Date:19 MAR 2017
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Solicitor Advocate

Though Mrs Norman will not thank anyone for saying this, her two unsuccessful recent applications in the Court of Appeal – Norman v Norman [2017] EWCA Civ 49 (Fam) (‘Norman 1’), Norman v Norman [2017] EWCA Civ 120 (Fam) (‘Norman  2’) – have clarified a modest number of areas of family procedural and evidential law.

Mrs Norman had been able to continue litigation over her finances and a 2005 consent order for some eighteen years; or, as King LJ said in Norman 2 (at para [4]), she had litigated for more than three times the length of her marriage. The detail of the tortuous route by which she succeeded in having two cases heard in successive months in the Court of Appeal does not matter. It is the significance of the principles examined which apply here, namely:

  1. Open court principles in family proceedings, especially in the Court of Appeal;
  2. Res judicata and the rule in Henderson v Henderson; and
  3. Finality of litigation and set aside applications (and further review of Matrimonial and Family Proceedings Act 1984 (‘MFPA 1984’) s 31F(6) and Family Procedure Rules 2010, r 4.1(6)).

Open court principles

The open court principle and family proceedings, particularly in relation to parties’ anonymity, has had a number of outings in the past couple of months. The most authoritative of these is Norman 1; but there are also X v X [2016] EWHC 3512 (Fam), Bodey J (should he permit a husband’s request for anonymity of the parties in a case already widely publicised); and A v (1) SSWP and (2) G [2017] UKUT 9, Charles J in the Upper Tribunal (child support: should the general practice of the UT of anonymising report references be continued? Yes, subject to an application by either of the parents).

 Mrs Norman wanted anonymity in the Court of Appeal. The common law rules for civil proceedings generally are summarised in Civil Procedure Rules 1998, r 39.2. Hearings are to be in public, subject to those which, on application by a party to the proceedings, ‘may be in private’ (r 39.2(3): eg ‘to protect the interests of any child or patient’). The naming of parties, said Gloster LJ, is part of the open justice principle; and anonymity does not follow because parties are anonymous in the court below. If anonymity is claimed it must be formally applied for (see para [34]).

 Gloster LJ was speaking only for proceedings in the Court of Appeal. Privacy principles in family proceedings generally (under FPR 2010, r 27.10) remain (as can be seen in redacted and anonymised form in X v X (Application for a Financial Remedies Order) [2016]  EWHC 1995 (Fam)). In family proceedings at whatever level – as Bodey J stressed – children remain a critical factor, and he drew attention to what Lady Hale had said in PJS  v News Group Newspapers Ltd [2016] UKSC 26, [2016] 2 FLR 251. Though the welfare of children affected ‘cannot always rule the day’:

'[72] …. they deserve closer attention than they have so far received in [PJS]… children’s interests [are] likely to be affected by a breach of the privacy interests of their parents, but the children have independent privacy interests of their own. They also have a right to respect for their family life with their parents.'

Res judicata and rescinding family orders

In Norman  2 two main points were argued for Mrs Norman: (1) that the court should use its powers to rescind an order; and (2) that the rule in Henderson v Henderson (below) did not apply in this case to Mrs Norman and that therefore her application should not be struck out as an abuse of process. King LJ (with whom Gloster and Lewison LJJ agreed) rejected both aspects of the appeal, and in both cases basing her findings on the need for finality in litigation. She cited the Court of Appeal in Mitchell  MP v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795:

'[44]… The circumstances in which the [discretion under CPR, r 3.1(7) to vary or revoke and order] can be exercised were considered by this court in Tibbles v SIG Plc (trading as  Asphaltic Roofing Supplies) [2012] EWCA Civ 518. The court held that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion.'

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(1)  Rescission of family orders

In support of set aside or rescission of the 2005 order, Mrs Norman relied on the provisions of MFPA 1984, s 31F(6) and FPR 2010, r 4.1(6). In all material respects r 4.1(6) is the same as CPR 1998, r 3.1(7). Lady Hale explained these two provisions in Sharland  v Sharland [2015] UKSC 60, [2015] 2 FLR 1367 thus (cited by King LJ at para [56]):

'[4] … section 31F(6) gives the family court power ‘to vary, suspend, rescind or revive any order made by it’. Rule 4.1(6) of the Family Procedure Rules provides that ‘A power of the court under these rules to make an order includes a power to vary or revoke the order’. On the face of it, as the learned editors of The Family Court Practice 2015 point out (p 1299), this is a very wide power which could cut across some other provisions, for example those prohibiting variation of lump sum and property adjustment orders. Clearly, as Munby P observed, the power, ‘although general is not unbounded’ (para [11]). However, it does give the family court power to entertain an application to set aside a final order in financial remedy proceedings on the well-established principles with which we are concerned in this case.'

Mrs Sharland succeeded in persuading the court to set aside an earlier order on grounds of fraudulent non-disclosure. These provisions were not enough to help Mrs Norman. Yes the court had the powers set out in r 4.1(6) and MFPA 1984, s 31F(6) (as far as they went); but these must be exercised in line with the finality criteria. Any application to set aside a consent order, said King LJ:

'[57] … will be considered against the Tibbles criteria against the backdrop of the desirability of finality in litigation, the undesirability of permitting litigants to have ‘two bites at the cherry’ and the need to avoid undermining the concept of appeal.'

This then brings the appeal to the second strand.

(2) The rule in Henderson v Henderson

In family proceedings there is a spectrum of instances where res judicata applies: in children proceedings it may give way to other demands (see eg Re B (Minors) Care Proceedings: Issue Estoppel) [1997] Fam 117, sub  nom Re B (Children Act Proceedings: Issue Estoppel) [1997] 1 FLR 285, Hale J); but in ancillary relief proceedings the rules become more strict – or less ‘airy-fairy’ as Bodey J described it in N  v N (Child Maintenance: Res Judicata and Strike Out) [2015] EWHC 514 (Fam), [2015] 2 FLR 1441, Bodey J) (and see Evidence in Family Proceedings by David Burrows (Family Law, 2016) at Ch 7 Pts 4-8).

The rule in Henderson v Henderson (1843) 3 Hare 100 per Wigram V-C was summarised in Virgin Atlantic Airways Ltd v Zodiac  Seats UK Ltd [2013] UKSC 46, [2014] AC 160 by Lord Sumption. He described it as precluding ‘a party from raising in subsequent proceedings matters which were not, but could and should have been, raised in the earlier’ proceedings. This rule and res judicata have similar origins.

 In 2009 Mrs Norman had failed in an application to set aside a 2005 financial consent order where she had said that Mr Norman had not disclosed material information. In this further application – under appeal to the Court of Appeal in Norman 2 – she tried to re-run her 2009 argument and on the basis of information she had had in the earlier set aside application. ‘She was simply wishing to deploy [the earlier information] in a somewhat different way’ (para [31]). This was not permissible, said King LJ. She went on to explain the cross-over between strike out for abuse of process and res judicata. The two are separate concepts, but both rely on ‘overlapping legal principles with the common underlying purpose of limiting abusive and duplicate litigation’ (per Lord Sumption in Virgin v Zodiac at para [25]).

So did res judicata apply to Mrs Norman? Emphatically it did, said King LJ. There was no justice in re-opening the 2005 order. Justice required that ‘these proceedings to be brought to an end’ (para [83]).

So the original 2005 consent order stands; and Mrs Norman’s name is published as with most other names in the Court of Appeal.