IN THE SUPREME COURT OF JUDICATURE FAFMI 95/1784/F

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE CONNELL)

Royal Courts of Justice

Strand
London WC2

Friday 24 May 1996

B e f o r e:

THE MASTER OF THE ROLLS

(SIR THOMAS BINGHAM)
LORD JUSTICE EVANS
LORD JUSTICE WARD

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KATHLEEN HARRIS
Petitioner/Appellant

-v-

WINSTON MICHAEL MANAHAN

Respondent
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(Transcript of Handed-down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
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MR N CARDEN (Instructed by Wynne Baxter Godfree, Brighton BN1 1GF)) appeared on behalf of
the Appellant

The Respondent appeared in person (not on 24.5.96)

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JUDGMENT
(As approved by the Court)

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©Crown Copyright
 JUDGMENT

LORD JUSTICE WARD: This is an appeal with the leave of Connell J. against his order dismissing

the appellant's application which was to set aside an order dated 17th November 1993 "on the ground

that it is vitiated by the bad legal advice given to her by her then legal advisors."

That November 1993 order was a consent order made in the ancillary relief proceedings

following the dissolution of the marriage of the appellant and her husband, the respondent. They had

married in 1962 and separated 30 years later in September 1992. They have 5 adult children. Decree

nisi of divorce was pronounced in February 1993 on the wife's petition and she pursued her claim for

ancillary relief. Affidavits of means were exchanged. The court appointed 17th November 1993 as a

date for a pre-trial review, the main purpose of which was, we were told, to give the parties an

opportunity to explore the possibility of settling the dispute. Both parties attended, the wife being

represented by her solicitor and the husband by solicitor and counsel. Negotiations took place leading

to an agreement which was approved by the District Judge who then made the order by consent, the

material elements of which were:-

1. The former matrimonial home was to be sold forthwith and:-

"The net proceeds of sale (defined as gross sale price less the
outstanding charges to Woolwich Building Society and Barclays Bank
Plc and the reasonable costs of estate agents and solicitors incurred in
the sale) be divided as follows:-

(a). In the event that said matrimonial home be sold for more than
£185,000 the respondent to receive £25,000 with the balance to the
petitioner;

or

(b). In the event that the said matrimonial home is sold for £185,000 or
less, the respondent to receive a sum calculated as 12.82% of the gross
sale price, and the petitioner to receive the balance."
2. The division of the proceeds of sale was to effect a clean break between the parties and there

were, accordingly, further provisions in the order for the dismissal of their respective claims for

ancillary relief, which included the wife's claim for periodical payments, and further provision for the

dismissal of their claims under the Inheritance (Provision for Family and Dependants) Act 1975, with

no order for costs.

The background to the making of that order is very shortly this: At the time of the separation in

September 1992 the matrimonial home was thought to be worth £240,000 and was subject to a first

charge in favour of the building society, approximately £87,000 being outstanding on the mortgage at

that time. Following the separation, the respondent husband ceased to make any further mortgage

repayments notwithstanding his employment on the Channel Tunnel earning £500.00 per week. The

parties owed about £7,000 to Barclays Bank and in June 1993 voluntarily charged the property to

secure that joint loan. She owed Lloyds Bank about £10,000, and he owed them nearly £8,000. In

November 1993 the bank obtained charging orders against the property in respect of those debts.

As Connell J. observed, "from late 1992 onwards the story becomes somewhat familiar." It was

not possible to sell the property for £240,000. By April 1993 the wife had reduced the asking price to

£200,000, which substantially reduced the net capital which would have become available on any sale.

In June 1993 an offer was in fact received to purchase the property for £195,000, completion being

sought by October 1993. The husband did not object to that sale. The wife's solicitors were, however,

advising that contracts could not be exchanged until there was agreement between husband and wife

resolving the claims for ancillary relief. The offerors became impatient and set a deadline of 8th

November 1993 but notwithstanding this ultimatum, the wife's solicitors continued to advise her that

she should not sell until the ancillary relief proceedings had been concluded. The prospective

purchasers withdrew. A week or so later, the consent order was made.

Had it been possible to sell for £195,000, then the husband would have received his £25,000

leaving, it is said, some £36,500 available to the wife, about £3,000 of which would have been needed
to discharge miscellaneous debts. Taking her costs of £4,500 into account, she would have been left

with a net sum of about £29,000. After payment of his bank borrowing, his debts and costs, the

husband would have had between £10,000 and £15,000 net. But he had his income and although a man

presumably in his 50's , he still had a good earning capacity. She was 51 and had no earnings of any

significance nor any prospect of any. It would not appear to me ever to have been an appropriate case

for a clean break and it is no surprise at all that she has commenced proceedings against her former

solicitors seeking damages for their negligently advising her to agree to the dismissal of her claim for

periodical payments when she had no obvious sources of income or means of support and was

receiving no significant capital sum to compensate her for the dismissal of her maintenance claims. She

also alleges that negligent advice cost her the chance of concluding a sale at £195,000. In the

events that have occurred, the loss of that sale was significant. Despite all her best endeavours the wife

was unable to secure any other purchaser. Meanwhile the mortgage arrears which had been mounting

for over a year continued to rise and the building society foreclosed in April 1994 and a possession

order was made on 3rd August 1994. The mortgagees remained sympathetic and agreed a stay on the

order for possession until February 1995. They granted a further indulgence because there was some

prospect in the spring of last year that the property might sell for £170,000. It was not to be. We were

informed by counsel that the building society have now taken possession. They have marketed the

property for £150,000 but a sale at that price has fallen through. Even if that price is achieved today

there would be a deficit because there would fall to be deducted legal and estate agents' costs, say

£5,000, the mortgage redemption figure of about £117,000, the Barclays Bank charge of about £11,000

and the Lloyds Bank loans of about £21,000. There will be no lump sum for either party. The effect of

the order would be that the wife would have nowhere to live and would be dependent on income

support. Her claim for damages for negligence is being met with the not very attractive defence that the

solicitor was entitled to an advocate's immunity from suit in respect of any incompetence he displayed

in the conduct of the proceedings at court. It is an altogether sorry tale indeed.

One approaches this appeal, therefore, with considerable sympathy for the petitioner but
sympathy may not be enough.

It was not until 4th April 1995 that the appellant instituted these proceedings by a notice of

application issued in the County Court of her intention to apply to the District Judge for orders that the

consent order be set aside on the ground I have set out and also for an order that the application be

transferred to the High Court to be heard by a judge thereof. That was duly ordered by the District

Judge who transferred the application to the Divorce Registry for listing before a High Court Judge

"for argument on the preliminary point as to whether the ground pleaded in the application is within

the classes entitling a party to seek to re-open a consent order of this nature." In that way it came before

Connell J.

Bearing in mind the pending negligence action, Connell J. held:-

"Naturally, it would not be appropriate for me to venture an opinion as

to whether or not the advice given was negligent, because I had not
heard any submission on behalf of the solicitors in that respect and I do
not know what their defence to the charge may be. However, I can say,
to put it at its lowest, that the advice given to the wife, on the basis of
the facts as described herein, was plainly bad advice."

I agree. The learned judge found, and again I entirely agree, that:-

"The compromise of the claim for periodical payments after a 30 year

marriage is a compromise which should only be agreed to by a wife
who is confident that she will be left with sufficient resources to house
and maintain herself in the future. Likewise, advice to reject an offer for
£195,000, i.e. close to the asking price, in a volatile market, has, in the
result, been shown to be bad advice."

The volatile market conditions prevailing at that time created risks which have now become realities

that:-

(a) The slump in the property market would further depress property prices thereby

reducing the amount upon which the wife was to be dependent for establishing her

home and/or for her support.

 (b) Mortgage arrears would continue to accrue through the husband's continuing

default but, since the husband took his share either as the fixed price of £25,000 or as a

percentage of the gross selling price, the mounting debts would be borne by the wife

alone.

It was, therefore, on any view an improvident and ill-advised bargain for the wife to have

struck.

The question in the appeal is whether bad legal advice justifies the setting aside of a consent

order. It is an important question. An affirmative answer could dramatically affect the workload of the

Family Courts because, in a field of jurisprudence where the solution is found by "trial and error and

imagination" (per Ormrod L.J. in Martin -v- Martin [1978] Fam. 12 at p.20c) and where the

unhappiness of the breakdown of a marriage easily transfers to disenchantment with the ancillary

arrangements made consequent upon it, the disgruntled have wide scope for blaming bad legal advice

for their dissatisfaction. The question raises difficult issues of precedent, procedure and policy. It is,

therefore, necessary to examine the nature and effect of consent orders, the function of the court in

approving agreed terms and the procedures for challenging the order before turning directly to the

question posed in the appeal.

1. THE EFFECT OF AN ORDER BEING MADE BY CONSENT.

In giving the advice of the Judicial Committee in de Lasala -v- de Lasala [1980] A.C. 546,

Lord Diplock said at p. 560 G:-

"Financial arrangements that are agreed upon between the parties for the
purpose of receiving approval and being made the subject of a consent
order by the court, once they have been made the subject of the court
order no longer depend upon the agreement of the parties as the source
from which their legal effect is derived. Their legal effect is derived
from the court order..."
That was considered by this court in Thwaite -v- Thwaite [1982] Fam. 1 where Ormrod L.J. with Dunn

L.J. and Wood J. gave the judgment of the court in these terms at p. 8:-

"This statement of principle is effectively binding on this court because

the relevant provisions of the Hong Kong ordinance are identical to the
corresponding provisions of the Matrimonial Act 1973. We respectfully
adopt it and believe that it removes much of the confusion about consent
orders which has prevailed in this jurisdiction. It does, however,
represent a significant departure from the general principle frequently
stated in cases arising in other Divisions of the High Court, that the
force and effect of consent orders derives from the contract between the
parties leading to, or evidenced by, or incorporated in the consent
order...A distinction, therefore, has to made between consent orders
made in this and other types of litigation...The effect of eliminating the
contractual basis of these consent orders should simplify the problem. If
their legal effect is derived from the court order it must follow, we
think, that they must be treated as orders of the court and dealt with, so
far as possible, in the same way as non-consensual orders...As orders of
the court, they must be subject to the provisions which apply to appeals
from orders made at first instance, though with one important exception.
Where the court of first instance has not adjudicated upon the evidence,
its decision cannot be challenged on the ground that the court has
reached a wrong conclusion on the evidence before it. Final orders of all
kinds, however, can be challenged on appeal and may be set aside on
other grounds."

Any doubt about this was removed by Lord Brandon of Oakbrook's emphasising as his fourth basic

principle in Jenkins -v- Livesey [1985] 1 A.C. 424 at 435 G:-

"When parties agree the provisions of a consent order, and the court
subsequently gives effect to such agreement by approving the
provisions concerned and embodying them in an order of the court, the
legal effect of those provisions is derived from the court order itself,
and does not depend any longer on the agreement between the parties."

2. THE FUNCTION OF THE JUDGE

The first three principles Lord Brandon wished to emphasise in Jenkins -v- Livesey, at p.435D

were:-
 "The first matter is that the powers of a judge of the Family Division of
the High Court, or of a judge of the Divorce County Court, to make
orders for financial provision and property adjustment following a
divorce are conferred on them, and conferred of them solely, by
statute...The second matter is that there no difference in this respect
between a judge's powers to make such orders after a disputed hearing
involving evidence on both sides, and his powers to make such orders
by the consent of the parties without having heard any evidence at all.
The third matter is that the powers of Registrars to make such orders,
when delegated to them by rules of court, are exactly the same as those
of judges, whether the proceedings concerned are in the Principal
Registry of the Family Division, or in the Registry of a Divorce County
Court."

The Matrimonial Causes Act 1973, as amended, makes clear what those powers are. Under s.25 it shall

be the duty of the court in deciding whether to exercise its powers, and if so, in what manner, to have

regard to the listed matters. Under s.25A:-

"Where..the court decides to exercise its powers..it shall be the duty of

the court to consider whether it would be appropriate so to exercise
those powers that the financial obligations of each party towards the
other will be terminated as soon after the grant of the decree as the court
considers just and reasonable."

Under the Inheritance (Provisions for Family and Dependants) Act 1975 the court may order that the

parties shall not be entitled to apply for orders under s.2 of the Act "if it considers it just to do so".

Implicit in the order are, therefore, decisions made by the district judge that it was appropriate

to order a clean break and that the court considered that the order was just and reasonable and that it

was also just to disentitle future claims under the Inheritance Act 1995.

The question, however, is how assiduous the judge must be before approving the compromise.

In Tommey -v- Tommey [1983] Fam. 15 Balcome J. (as he then was) said at p.21E:-

"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 that there are matters
about which he needs to be more fully informed before he makes the
order, he is entitled to make such inquiries 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 best
interest, 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."

Lord Brandon in Jenkins -v- Livesey said that "there is a great deal of practical common sense" in that

passage, even though he rejected the implication that there was no duty to give full and frank

disclosure.

The Matrimonial and Family Proceedings Act 1984 introduced a new s.33A which provided:-

"Notwithstanding anything in the preceding provisions of this 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 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 the application."

In this case the parties had attended in person having filed their affidavits and the need to file the

necessary rule 2.61 summary of relevant information must have been dispensed with.

In Pounds -v- Pounds [1994] 1 W.L.R. 1535 Waite L.J. said at 1539H-

"When the House of Lords ruled in Jenkins -v- Livesey (formerly

Jenkins) [1985] A.C. 424 that the duty of disclosure of assets was owed
by spouses not only to each other but to the court, it did so upon the
basis that it was the function of the court in every case, whether it was
proceeding by consent of the parties or after a contested hearing to be
satisfied that the provision made by the order fulfilled the criteria laid
down by s.25 of the Matrimonial and Causes Act 1973. It is clear,
however, that this was intended to be an assertion of general principle
only, and not to impose upon the court the need to scrutinise in detail
the financial affairs of parties who came to it for approval of an
independently negotiated bargain. It could not be otherwise, for earlier
that year Parliament had specifically enacted a more cursory regime for
the scrutiny of consent orders...The effect of s.33A and the rules and
directions made under it 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 enquiry as to whether there other circumstances into which it
ought to probe more deeply that any further investigation is required of
the judge before approving a bargain that the spouses have made for
 themselves."

Waite L.J. thus eloquently states the principle which I had brashly reduced to the observation that

whilst the court is no rubber stamp, nor is it some kind of forensic ferret.

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 enquiry 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.

In this case the petitioner frankly states in her affidavit that District Judge Hall "asked me if I

was happy with the order which was to be made. Having been told by Mr Fagg" (her solicitor) "that the

terms were "pretty fair", I naturally replied in the affirmative. Mr Fagg had explained to me, before we

entered the judge's chambers, that the terms of the order prevented me from ever claiming maintenance

from the respondent. Again, I accepted that because I was told that the deal was fair." In those

circumstances there can be no possible criticism of the district judge and Mr Carden made it quite clear

that he was not suggesting there was.

3. THE PROCEDURE

How can an order like this be challenged? There seem to be four possibilities. I covered three

of them in B-T -v- B-T (Divorce: Procedure) [1990] 2 FLR 1 and Thorpe J. suggested a fourth in Re C

(Financial Provision: Leave to appeal) [1993] 2 FLR 799.

1. Appeal: The Matrimonial Causes Rules 1977 permitted an appeal even against a consent order:

see rule 124. That was the position when I gave judgment in B-T. It is now submitted by Mr Carden
that the rule has changed and that a consent order cannot be appealed. Family Proceedings Rule 8 reads

as follows:-

"8.1 Appeals from district judges: (1) Except where paragraph (2)
applies, any party may appeal from an order or a decision made or given
by the district judge in family proceedings in a county court to a judge
on notice; and in such a case -

(a) CCR Order 13 Rule 1 (10) (which enables the judge to vary or
rescind an order made by the district judge in the course of
proceedings), and

(b) CCR Order 37, Rule 6 (which gives a right of appeal to the judge
from a judgment or final decision of the district judge),

shall not apply to the order or decision.

(2) Any order or decision granting or varying an order (or refusing to do

so) -

(a) on an application for ancillary relief...

shall be treated as a final order for the purposes of CCR Order 37 Rule
6.

(3) On hearing an appeal to which paragraph (2) above applies, the

judge may exercise his own discretion in substitution for that of the
district judge."

CCR 37 r.6 reads as follows:-

"Appeal from district judge: (1) Any party affected by a judgment or

final order of the district judge may, except where he has consented to
the terms thereof, appeal from the judgment or order to the judge, who
may, upon such terms as he thinks fit - (a) set aside or vary the
judgment or order or any part thereof..."

I do not find the construction of these rules easy. There is a clear attempt to separate interlocutory

orders under 8.1 (1) from final orders under 8.1 (2). I had pointed out in B-T pp13-15 the uncertainties

about the extent to which ancillary relief orders ranging from variable periodical payments orders to

non-variable lump sum and property adjustment orders could or should be treated as interlocutory or
final orders. The practical effect of the difference in the practice of the County Court is that on appeal

the judge has the ability to deal with the former as hearings de novo whereas with the latter the appeal

is akin to an appeal from the judge to the Court of Appeal. The value of that distinction was eroded by

Marsh -v- Marsh [1993] 1 W.L.R. 744 which decided that the provisions of 8.1 (3) give the judge the

power to exercise his own discretion so that the strict appellate approach was not intended to apply in

ancillary relief appeals. It would seem, therefore, to be a distinction without a difference.

Mr Carden submits that F.P.R. 8(2) must be more widely construed than that. He submits that

ancillary relief orders must not only be treated as final orders for the purposes of CCR 37r.6, but that

appeals against ancillary relief orders must be entirely governed by that rule. Since that rule excludes

an appeal where a party has consented to the terms thereof, no appeal lies against a consent order for

ancillary relief. Counsel who then represented the respondent in the court below apparently agreed and

the case proceeded upon that basis. I am far from convinced that Mr Carden is correct. My reservations

are these:-

(a) Rule 8.1 does not seem to apply to orders made in the High Court

where the rules would seem to permit an appeal against a consent order.

RSC 58 r.1 provides:-

"(1)...An appeal shall lie to a Judge in Chambers from any judgment

order or decision of...a Registrar of the Family Division."

Rule 3 provides a similar appeal from the District Registrar. Whether or

not leave to appeal is required may be a matter of debate. The decision

of this court in Purcell -v- F. C. Trigell Ltd [1971] 1 QB 358 was that

because "court or judge" in s. 31(1)(h) Supreme Court of Judicature

(Consolidation) Act 1925 included the district registrar, leave was

necessary but the notes in the Supreme Court Practice Vol 2 para.4606

seem to suggest that with the repeal of the successor section, s.18(1)(f)

Supreme Court Act 1981, there is no longer any need for leave. It is not
 necessary to enter that debate.

(b) If the purpose of the Rule were as Mr Carden contends, then the

rule-making committee could very simply have said: "CCR 37r.6 shall

apply to appeals against ancillary relief orders."

(c) Marsh -v- Marsh demonstrates that CCR 37r.6 does not fully apply

to ancillary relief appeals.

(d) If the established learning of the Privy Council, Court of Appeal and

House of Lords in de Lasala, Thwaite, Jenkins -v- Livesey and Barder

-v- Caluori [1988] 1 A.C. 20 was being swept overboard by a change in

the rules then:-

(i) One would have expected the rules to say so clearly, e.g., "No appeal

shall lie against a consent order for ancillary relief."

(ii) One would have expected to have been able to identify quite easily

what mischief this change was curing. It may be that the Rules

Committee had in mind that a right of appeal was unnecessary because

there was a right of rehearing under CCR 37r.1. I do not see why the

two remedies cannot live side by side. In matters heard by a judge there

is a right of rehearing as well as a right of appeal to the Court of Appeal

and although this court in O'Connor -v- Mohammed Din (C.A.T.

93/0150, The Times 15th February 1993) suggested that the remedy of

rehearing should be exhausted before going on appeal, there was no

reservation about these two routes being available.

In my judgment, it is at least arguable that an appeal against a consent order will still lie as of

right and without leave. If it does, and if the right to appeal is exercised in time, then the appeal
proceeds by virtue of the provisions of Rule 8.1(3) as one where the judge exercises his own discretion

in substitution for that of the district judge. The judge is accordingly under a duty to have regard to

the provisions of s.25 of the Matrimonial and Causes Act 1973 and, as I shall set out in a moment, he

is not bound to approve an agreement which, due to "bad legal advice", produces a manifestly unjust

result.

2. Rehearing: Some justification for excluding appeals against consent orders may be the

acknowledgment that if the judge gives his imprimatur of approval to the compromise placed before

him, then it can hardly be asserted that he was in error. Accordingly Order 37 r1 applies. That reads:-

"Rehearing: 1.(1) In any proceedings tried without a jury the judge shall
have power on application to order a rehearing when no error of the
court at the hearing is alleged.

(2) Unless the court otherwise orders any application under paragraph
(1) shall be made to the judge by whom the proceedings were tried...

(4) Where the proceedings were tried by the district judge, the powers
conferred on the judge by paragraphs (1)...shall be exercisable by the
(district judge) and paragraph (2) shall not apply."

Once again the practice in the County Court and the High Court differ in that there is no comparable

provision in the rules of the Supreme Court, even though the power so to provide is given by section

17(2) Supreme Court Act 1981.

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 at p.58:-

"...It is impossible to say that the court was in error merely because the
judge had not conducted some more exhaustive inquiry."

That would cover this case. 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.
 As to whether or not "bad legal advice" would justify a rehearing, I observe that the solicitor's

negligence was treated as a sufficient justification for a rehearing under the comparable provisions for

rehearing divorce causes: see D -v- D [1963] 1 WLR 194 and Jakeman -v- Jakeman [1964] P.420. It

should not, however, be thought that a rehearing would follow inevitably. As Ralph Gibson L.J.

pointed out in Morris-Thomas -v- Petticoat Lane Rentals [1987] 53 P.& C.R. 238 at 254:-

"Justice normally requires that when an action has been fought and duly
lost upon the ground apparently chosen by the plaintiff, with the advice
of solicitors and counsel, such a plaintiff should not, save in most
exceptional circumstances, be permitted to start again in order to fight
the claim on different grounds, and the claim that solicitor and counsel
made a mistake would rarely if ever justify a departure from that
principle. The court will not permit the litigant to suffer for the mistake
of his lawyer if the mistake can be corrected without injustice on the
other side: see Doyle -v- Olby Ltd [1969] 2 Q.B. 158; but when the
mistake is of the nature that can only be corrected by letting the plaintiff
start again with a fresh trial it will rarely be possible to assist such a
plaintiff."

If, however, the application is made in time, and if it is granted, then on the rehearing a fresh discretion

must be exercised on the facts then before the court.

It is not quite clear from the terms of the notice of application issued in this case whether the

appellant had CCR 37 r.1 in mind. It is possible so to construe the application. Although the rehearing

should be by the district judge who made the original order, I can see no objection to the difficult case

being transferred by him into the High Court to be resolved by the High Court Judge as was done

here.The application was, however, way out of time. There was no application to extend time and no

consideration appears to have been given to that matter at all.

3. Fresh action: In de Lasala Lord Diplock said at p.561E:-

"Since their Lordships have already held that Huggins J. in the exercise
of the divorce jurisdiction...had no power to vary the consent order...,
the only means now open to the wife to set it aside on grounds of fraud
or mistake would be by bringing a fresh action for this purpose."
Where the vitiating factor is said to be bad advice, then I can imagine circumstances where the bad

advice gives rise to a mistaken belief which, if shared by the other side, may enable the underlying

agreement to be attacked on the ground of mistake. I find it very difficult to envisage a cause of action

in which the negligence of one's own solicitor justifies the setting aside of an agreement made with a

third party. I do not find this route at all attractive.

4. Application in the suit: In Re C above, Thorpe J., as he then was, took a pragmatic approach to

problems of this kind and suggested at p.801C:-

"If an order made by a judge of the Division has been secured by some
vitiating factor, then the aggrieved party can re-open the proceedings by
the issue of a judge's summons for which no leave is required."

I suspect this was the course followed by this appellant. The parties before Thorpe J. took the appeal

route when they could perhaps have applied for a rehearing by the district judge who would not appear

to have been in error. That they had to go through the hoop of seeking an extension of time does not

appear to me to be a serious obstacle because it gives the court a chance to filter out the hopeless case

before the expense of a full blown contest is incurred. Whilst I am ordinarily totally sympathetic to

practicality overcoming technicality, nevertheless, where the rules sufficiently provide the remedy, as

they do, I see no justification for importing ad hoc procedures. Thorpe J., as he then was, has far

greater experience of these matters than I do and his judgment commands respect but I venture to think

that the extension he proposed goes further than is necessary.

There was no dispute before Connell J. about the correctness of the procedure that was

followed in this case. He proceeded to determine the matter upon its merits as I will soon turn to do. It

is a pity that we have not been able to have full argument on these procedural matters which remain far

from clear. The Family Proceedings Rules Committee could usefully look again at rule 8.1. I

tentatively make the following suggestions:-

1. There ought to be the same rule for County Court proceedings as for those transferred into the

High Court both as to appeals and as to rehearings.

2. The right to seek a rehearing under CCR 37 r.1 should enable consent orders to be reconsidered

in most cases because it is most unlikely that an error of the court can then be established.

3. Because, the ratio of de Lasala, Thwaite and Jenkins -v- Livesey demands that consent orders

be treated no differently from non-consensual orders, consent orders ought, in my opinion, to be

capable of being appealed in exactly the same way as contested orders. Judicious application of

O'Connor -v- Din should ensure that the appeal route is discouraged where rehearing is more

appropriate.

4. The time limit of 14 days provided both for rehearings as for appeals is a valuable filter which

ought not to be overlooked. It should be rigorously enforced whether the case is one of fraud, mistake,

non-disclosure, fresh evidence, or supervening events as in Barder -v- Caluori. It is, in my judgment,

all the more important if the reason advanced for the rehearing or appeal is "bad legal advice." The

guidelines set by Lord Brandon of Oakbrook in Barder apply with equal force whenever leave is

required or, I suggest, whenever any extension of time is sought. He suggested that leave should only

be given if certain conditions are satisfied:-

"The first condition is that new events have occurred since the making
of the order which invalidates the basis, or fundamental assumption,
upon which the order was made, so that, if leave to appeal out of time
were to be given, the appeal would be certain, or very likely to succeed.
The second condition is that the new events should have occurred
within a relatively short time of the order having been made. Whilst the
length of time cannot be laid down precisely, I should regard it as
extremely unlikely that it could be as much as a year, and that in most
cases it would be no more than a few months. The third condition is that
the application for leave to appeal out of time should be made
reasonably promptly in the circumstances of the case. To these three
conditions, which can be seen from the authorities as requiring to be
satisfied, I would add a fourth, which it does not appear has needed to
be considered so far, but which it may be necessary to consider in future
cases. That fourth condition is that the grant of leave to appeal out of
time should not prejudice third parties who have acquired, in good faith
and for valuable consideration, interests in property which is the subject
matter of the relevant order:" p.43C-E.
 If leave had to be sought in this case, I would be likely to refuse it because, as I shall show,

success was unlikely, there was long delay before protesting about the negligence and the proceedings

were not brought promptly

In the light of the way in which this litigation was conducted, I propose to assume that the

appellant has overcome all procedural hurdles so that the question of her appeal should be dealt with on

its merits. I turn now to the nub of that appeal.

4. BAD LEGAL ADVICE AS A FACTOR AFFECTING THE MAKING OF THE ORDER.

The first reference to bad legal advice to which we have been referred, was made in Edgar -v-

Edgar [1980] 1 W.L.R. 1410. There the wife had entered into a separation deed and had agreed to

terms that on the husband's buying her a house for £100,000 and maintaining her at the rate of £16,000

per annum she would not claim any lump sum or property adjustment orders. This was against the

advice of Mr Robert Johnson Q.C. leading Mr Nicholas Wilson. She in time presented a petition for

divorce and her prayer for ancillary relief included the claims she had agreed to forego. Eastham J.

nonetheless awarded her a further £670,000 but in the course of allowing the appeal Ormrod L.J. said

at 1417 C - F:-

"To decide what weight it should be given, in order to reach a just

result, to a prior agreement not to claim lump sum, regard must be had
to the conduct of both parties leading up to the prior agreement, and to
their subsequent conduct in consequence of it. It is not necessary in this
connection to think in formal legal terms, such as misrepresentation or
estoppel; all the circumstances as they affect each of the two human
beings must be considered in the complex relationship of marriage. So
the circumstances surrounding the making of the agreement are
relevant. Undue pressure by one side, exploitation of a dominant
position to secure an unreasonable advantage, inadequate knowledge,
possibly" (I have added the this emphasis) "bad legal advice, an
 important change of circumstances, unforeseen or overlooked at the
time of making the agreement, are all relevant to the question of justice
between the parties. Important too is the general proposition that formal
agreements, properly and fairly arrived at with competent legal advice,
should not be displaced unless there are good and substantial grounds
for concluding that an injustice will be done by holding the parties to the
terms of their agreement. There may well be other considerations which
affect the justice of the case; the above list is not intended to be an
exclusive catalogue."

The point arose in Camm -v- Camm [1983] 4 FLR 577 where Sir Roger Ormrod having

referred to his judgment in Edgar , said at p.518 B-F

"I made it clear (in Edgar) that that was not, of course, an exclusive list.
I still think it was right to refer to bad legal advice, although in that
passage I was not thinking in terms of negligence by the solicitor. The
unfortunate fact in this case was that the hearing below was occupied to
a considerable extent in questioning the wife's solicitor, who is himself
the defendant in a pending action for negligence which may or may not
be proceeded with. In that passage I was certainly not thinking in terms
of negligence: I was thinking in terms of exactly what I had said, "bad
legal advice", and we are all familiar with cases in which parties are
badly advised. That is to say it is not necessarily negligent advice to take
a course or permit a client to take a course which a more experienced, or
a stronger minded legal adviser would have discouraged...I think the
quality of legal advice is relevant on the issue of justice, but not in terms
of negligence actions."

Eveleigh L.J. neatly encapsulated the court's approach at p.585 B - D:-

"One has to ask in relation to the wife how far did she know what she
was doing, and what her choices were and in what circumstances did
she make the agreement? Then one has to ask whether it is just to allow
her to ignore the agreement, to go behind it, and one might say in a
given case that the agreement was made in such circumstances that it
should be binding unless a radical change of circumstances could be
shown. On the other hand, one might in another case say that the
circumstances in which the agreement was made were such that it
would wrong to hold that the party (in this case the wife) to it or for it to
effect the case at all. One should also consider whether the husband has
altered his position for the worse on the strength of the agreement."

Hoffmann L.J. understandably enough did not find the law to be in a satisfactory state. To one
schooled in the Chancery Division, the familiar approach of the Family Division to paint with the

broad brush seemed only to be slapdash. He pointed out in Pounds -v- Pounds [1994] 1 WLR 1535 at

1550H:-

"It does seem to me that the law is in an unsatisfactory state...The result

of the decision of this court in Edgar -v- Edgar and the cases which have
followed it, is that we have, it seems to me, the worst of both worlds.
The agreement may be held to be binding, but whether it will be can
be determined only after litigation and may involve, as in this case,
examining the quality of the advice which was given to the party who
wishes to resile. It is then understandably a matter for surprise and
resentment on the part of the other party that one should be able to
repudiate an agreement on account of the inadequacy of one's own legal
advisers, over whom the other party had no control and of whose advice
he has no knowledge."

Waite L.J. had said with the agreement of Hoffmann L.J. and Neill L.J. at p.1537 E - F:-

"So long as that bargain remained an out-of-court agreement, it would

be impossible to claim for it the finality which both sides hoped to
achieve. The common law will not enforce, and statute law renders
void, any provision in an agreement purporting to restrict rights to apply
to a court for an order giving financial relief. Far from being clean, the
break would become liable to a painful rejoining if either side, whether
because of second thoughts or because of change in circumstances,
became dissatisfied with the bargain. The only safe way of making their
agreement watertight would be to incorporate it in an order of the
court."

In this case the clean break agreement was approved and initialled by the district judge before decree

nisi was pronounced. The wife changed her mind - and her solicitors, and her new eagle-eyed advisers

spotted the timing of the order and successfully argued before Singer J. that the order was a nullity

having been made before decree nisi. That finding was reversed on appeal. It therefore became

unnecessary for the court to express any view about the effect of bad legal advice and the above

observations are obiter, but they are not lacking persuasive force,and Connell J. rightly placed

considerable reliance on their views.

This case was not referred to Thorpe J., as he then was, in B -v- B (Consent order; variation)
[1995] 1 FLR 9. There a consent order had been made providing a lump sum and a term of periodical

payments on the expiry of which the wife's claim would be dismissed, but the order did not contain the

direction under S. 28 (1A) of the Act which would have provided that the wife was not entitled to

apply for a variation of the order by extending that term. She in time duly applied for just such an

extension and for increased periodical payments from her wealthy husband whose earnings had

increased and who had substantial pension entitlements. Thorpe J. found that:-

"What these two non-specialist solicitors intended is, to me, manifestly

plain. I am in no doubt at all that Mr G, Mr W, the husband, and the
wife, must all have understood in their differing ways that there was to
be a deferred dismissal of the periodical payments claim at the
expiration of 7 years."

He accepted the wife's submission that the fact of bad legal advice should taken into consideration on

the application to vary and he held at p.22F:-

"So, what should be done at this stage? The responsibility for the
creation of this quite unnecessary further litigation seems to lie with Mr
G and possibly with Mr W, although I must bear in mind that I have not
heard from either in defence of what they did during the course of their
respective professional relationships. Each of the parties has issued a
protective writ within the limitation period and it would therefore
arguably be enough for this court to say that the matrimonial causes
settlement has been achieved by a consent order, and if that order is
unfair to either then each has their remedy in negligence. For many
reasons I do not think that it is appropriate response. The decisions of
the Court of Appeal in relation to applications that invoke ss. 23 - 25 in
the face of contracts that prevent such application is nonetheless to grant
relief in exceptional circumstances. I reject the submission that different
principles apply where the contract has been made the subject of order
by consent and the application is under S. 31 in breach of a provision in
the consent order that expressly or by implication debars it. The general
considerations expressed by Ormrod L.J. in Edgar (above) and in Camm
(above) in my judgment apply. The rationalisation contained in the
judgment of Eveleigh L.J. in Camm at p.588 B-D is, in my judgment, of
equal application to variation and extension applications.
Fundamentally, where the parties come before the court with a proposed
order to satisfy a wife's rights to financial provision the court at that
stage has a statutory duty to have regard to a number of factors and
considerations. That function was seemingly performed by the district
judge who considered the draft and the r 76 (A) statement. That function
 was distorted by the incomplete and slanted presentation of the essential
circumstances as by the failure of the negotiators, and in consequence of
the court, to face the important question - was the right to apply for
extension alive or dead? So if the statutory exercise that should have
accompanied the making of the consent order was not properly
performed, it seems to me that it is my function to perform it now."

As Connell J. correctly observed, Thorpe J. was dealing with an application to vary, not an application

to set aside a consent order.

The effect of these authorities seem 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.

5. BAD LEGAL ADVICE AS A GROUND FOR SETTING AN ORDER ASIDE.

In de Lasala Lord Diplock had, as I have set out, referred to challenges being made to the

validity of the order there on the ground of fraud or mistake. In Thwaite Ormrod L.J. observed that

there were other grounds, mentioning fresh evidence properly admitted by an appellate court and

material non-disclosure, this latter ground being confirmed by Jenkins -v- Livesey. Barder -v- Caluori

established another category where new events occurring since the making of the order invalidate the

basis upon which it had been made. In de Lasala, the wife was asserting that she had been induced to

agree to the consent order (a) by misrepresentations by the husband as to his financial position at the

time and (b) by the bad advice she had received from her then legal advisors as to what her tax position

would be. It was not necessary for the Privy Council to rule upon that latter submission.

So, as Connell J. held, the question posed sharply as it is here, has not yet directly arisen for

decision. Connell J. held:-

 "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...Further, it is not said here that the husband misled the wife
or the court, or behaved in any way improperly. No doubt, since 17th
November 1993, he has believed that the agreement reached on that
day, which was embodied in the order of the court, was final and
binding and he was fully entitled so to believe. When considering the
justice of the case it would in my judgment be unfair to this husband to
set the order aside. That is not by any means conclusive of the issue
because the wife's situation must also be born in mind. She has issued
proceedings against her solicitors, although these may not be without
problems...So far as her application before me is concerned, bearing in
mind in particular the dicta, albeit an obiter dicta of Waite L.J. and
Hoffmann L.J. in Pounds, 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."

I broad terms, I agree his conclusion and with his sentiments.

In reaching my own decision, I derived help from the approach of Balcombe.J. in Tommey

even though his actual conclusion was doubted by Lord Brandon in Jenkins -v- Livesey. There it was

agreed that the wife would receive a sum in full and final settlement of all her financial claims and the

court approving that agreement, accordingly dismissed those claims. She then applied to set aside that

part of the order on the ground that the husband had exerted undue influence in obtaining her consent

to the agreement. Balcombe J. held at 24E:-

"Whether that development (of the existing law by holding that undue
influence is an additional ground upon which a matrimonial order can
be set aside) should take place involves considerations of policy. In my
judgment this involves holding a balance between two important
principles which are often expressed by the latin phrases: ubi jus, ibi
remedium, and interest reipublicae ut sit finis litium."

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. It may, but perhaps it may not, be fully

redressed by her claim against her former solicitors.This alternative remedy should, however, be as

irrelevant as it is in applications to strike out an action for want of prosecution (see Birkett -v- James

[1978] AC 279). This aspect of justice demands that she have a remedy against her husband.

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.

Lord Scarman said in Minton -v- Minton [1979] AC 593 that two principles inform the modern

legislation:-

"One is the public interest that spouses, to the extent that their means
permit, should provide for themselves and their children. But the other -
of equal importance - is the principle of "the clean break." The law now
encourages spouses to avoid bitterness after family break-down and to
settle their money and property problems. An object of the modern law
is to encourage each to put the past behind them and to begin a new life
which is not overshadowed by the relationship which has broken
down."

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. The point is made by Lord

Wilberforce in the Ampthill Peerage case [1977] AC 547 at p.569:-

"English law, and safe it is to say, all comparable legal systems, place
high in the category of essential principles that which requires that
 limits be placed upon the rights of citizens to open or reopen
disputes...Any determination of disputable fact may, the law recognises,
be imperfect: the law aims at providing the best and safest solution
compatible with human fallibility and having reached that solution
closes the book...For a policy of closure to be compatible with justice, it
may be attended with safeguards: so the law allows appeals: so the law,
exceptionally, allows appeals out of time; so the law still more
exceptionally allows judgments to be attacked on the ground of
fraud...But these are exceptions to a general rule of high public
importance, and as all the cases show, they are reserved for rare and
limited cases, where the facts justifying them can be strictly proved."

That last observation bears examination. 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. 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. I draw consolation from the speech of Lord

Oliver of Aylmerton in Dinch -v- Dinch [1987] 1 W.L.R. 252 at 255C:-

"The hardship and injustice that such failure (of the solicitors) inevitably
causes, particularly in cases where one or both parties are legally aided
and the only substantial family asset consists of the matrimonial home
are so glaring in the instant case that I feel impelled once again to stress
in the most emphatic terms that it is in all cases the imperative
professional duty of those invested with the task of advising the parties
to these unfortunate disputes to consider with due care the impact which
any terms that they agree on behalf of their clients have and are intended
to have...It is, of course, also the duty of any court called upon to make
 such a consent order to consider for itself, before the order is drawn up
and entered, the jurisdiction which it is being called upon to exercise
and to make clear what claims for ancillary relief are being finally
disposed of. I would, however, like to emphasise that the primary duty
in this regard must lie on those concerned with the negotiation and
drafting of the terms of the order and that any failure to fulfil such duty
occurring hereafter cannot be excused simply by reference to some
inadvertent lack of vigilance on the part of the court or its officers in
passing the order in the form which the parties have approved."

CONCLUSIONS

1. If, as I believe there may be or ought to be, a right of appeal, then if the appeal is entered in

time, 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.

2. If there is a right of rehearing, and I believe there is, and if that application is made in time,

then the court will not necessarily permit the rehearing for bad legal advice but, on the assumption that

the error is discovered (and perhaps acknowledged) within such a short time, then the respondent's

claim to be adversely affected by rehearing is not likely to weigh substantially.

3. If the leave of the court is necessary, then the strict control suggested by Barder -v- Caluori

should be rigorously enforced.

4. The requirement that the appeal or rehearing would be "certain or very likely to succeed"

assumes special significance. Only in the most exceptional case of the cruellest injustice will the public

interest in the finality of litigation be put aside.

5. This is not such a case.

Accordingly I would dismiss the appeal.

LORD JUSTICE EVANS: I agree.

THE MASTER OF THE ROLLS: I also agree.

Order: Appeal dismissed. No order for costs of appeal. Legal Aid taxation of wife's costs. Leave
to appeal to House of Lords refused.