In this guest post, barrister Elizabeth Wark explains what happened when a solicitor accidentally applied online for a divorce for the wrong client, and why that couldn’t be fixed by the court.
The facts
In the recent case of Williams v. Williams [2024] EWHC 733 (Fam), a junior solicitor mistakenly applied for a final divorce order using the new online portal for their client, the Wife in contentious financial remedy proceedings.
This application was described as “the click of a wrong button”, done without the Wife’s knowledge or instructions. The final order was granted a mere 21 minutes later, the system operating with “customary speed”.
The Wife subsequently initiated attempts to ‘undo’ the final order, which were resisted by the Husband. She first made a “without notice” application to the court (ie without first notifying the Husband), seeking for the final order to be set aside. This was granted on the papers by DDJ Underhill. The Husband, having been informed of the Wife’s application, applied for it to be listed for a hearing on notice and it came before the President of the Family Division, Sir Andrew McFarlane.
Before him, the Wife sought either to uphold DDJ Underhill’s decision or for the court to exercise its own discretion to set aside the final order by one of a number of procedural routes: either by the power found at Family Procedure Rules (FPR) r 4.1(6) whereby the court has a power to “vary or revoke” an order, the application of the ‘slip rule’ at FPR r.29.16 under which “the court may at any time correct an accidental slip or omission in a judgment or order” or by an exercise of the High Court’s inherent jurisdiction.
Arguments advanced by the Wife focused on the procedural mechanisms available to the court.
Counsel for the Wife gave examples to support the idea that the court did have jurisdiction to exercise its discretion where there had been a “shotgun divorce”:
- A litigant in person making the same mistake as the individual at the firm.
- A litigant in person being forced, maybe by threat of violence, by the respondent to apply for a final order on the portal.
The Wife asserted that the absence of her instructions and/or consent vitiated the exercise by the solicitor of their apparent authority to act for her in applying for the final order and its subsequent grant was therefore “voidable”, though no legal authority was cited on the point.
The Wife was confident as to the correctness of her view. Notably, in the event of success, pursued her claim for costs on the higher indemnity basis against the Husband.
The Husband’s position was that “a final order of divorce is a once and for all order, which cannot be set aside by the consent of the parties and may only be rescinded by the court if it is found to be either void or voidable”. Where there was procedural regularity, and absent some other vitiating feature, such as fraud or duress, a final order should be treated as such. The question of what mechanism may be used to achieve this was a secondary and subsidiary one. The Husband asserted that the Wife’s remedy was an action in professional negligence against her solicitors.
The court’s decision
In a judgment delivered on 10 April 2024, McFarlane P rejected the Wife’s arguments.
The order of DDJ Underhill had no effect. The principal issue was that the order was made ‘on the papers’ by that judge without notice to the Husband. This was in contravention of the requirement at FPR r.7.31(a) that notice is to be given to the parties “of the date, time and place of every hearing which is to take place in a case to which they are a party”.
He determined the slip rule was not available either in respect of DDJ Underhill’s order or to the final order and cited Knowles J’s observations in IC v RC [2020] EWHC 2997 (Fam) at [23] that the slip rule was the “mechanism whereby a clerical error of the court or its officials can be corrected or where error arises from some accidental slip or omission”. Here, McFarlane P observed at [18], “the error here was in the making of the application, not the granting of the order”.
Dealing with the potential danger to litigants in person of obtaining an ‘accidental’ divorce, McFarlane P observed that only professional users would have portal access to multiple case files at once. He also rejected the argument that a single misstep by an operator would have this consequence, as “the final click of the mouse is made after travelling through a series of earlier screens”.
McFarlane P accepted that, in principle, there were mechanisms available to the court to set aside a final order but that there were no qualifying circumstances to justify why it should be exercised. Public policy considerations weighed heavily in the court’s reasoning. McFarlane P referred to “the important role a person’s married or unmarried status has in society: it is a matter that engages with public policy issues in addition to any private rights or interests”.
Final divorce orders are “a particular category of order”. There is a very high bar to set one aside, so that divorced parties and wider society have certainty about their status and the implications that flow from a final order. It was in the “public interest that a final order of divorce should be unimpeachable when granted with competent jurisdiction and after compliance with the correct procedural routes”.
Final divorce orders are unique in that, save for a limited number of specific situations, the court must grant one when seised with an application to make a conditional order final. Those include defective service on the other party, that an appeal or application to set aside has been lodged against the grant of the conditional order, or there is an application to prevent the making of a final order on the basis that the court cannot be satisfied that the financial provision made by the applicant for the respondent (almost always the financially weaker party) is “reasonable and fair or the best that can be made in the circumstances”. The latter example is relevant where one party’s rights or options within financial remedies proceedings may be prejudiced by the grant of a final divorce order.
There is a near absence of any discretion and indeed final divorce orders are processed as an administrative function of the court. Per the HMCTS website, “The court will process the final order within 24 hours of receiving the application, unless there is an issue or it needs to be reviewed by a judge.” (Emphasis added.)
In this way, final divorce orders are not comparable to other types of final orders within the family jurisdiction, which are made by a judge or magistrates and invariably involve the exercise of discretion.
McFarlane P agreed with submissions by the Husband’s counsel that “the court should be very slow to open up a potential third stage in divorce proceedings where, post-final order, a party can come back and say that the application for the order was made by mistake. As the authorities make clear, a final order made without procedural irregularity should stand for all the world”.
Discussion
The outcome generated a significant amount of comment within the legal community, perhaps partly due to an instinctive reaction that it was harsh against the Wife and the solicitor who, in a moment of human error, the type of which we have all made, lodged the application.
One can only have a great deal of sympathy with the Wife and the solicitor involved. However, the adage “hard cases make bad law” rings true.
This is an important cautionary tale for legal professionals but is unlikely to have any impact on the vast majority of litigants involved in divorce proceedings.
Further points:
1. An argument to set aside a final divorce order which is predicated on the ‘slip rule’ appears destined to fail. Being a unique, binary, form of order, it is distinct from other forms of orders considered in the case law which typically concern a substantive order with various different directions and provisions, such as for costs.
2. The key case in relation to setting aside a final divorce order is Shahzad v Mazher [2020] EWCA Civ 1740. There, the husband petitioned for divorce on the basis that the parties had been separated for five years (this being prior to the ‘no fault divorce’ changes in the law). This information was false. The parties had in fact only separated one year prior to the husband’s petition. Upon receiving the decree nisi, the wife applied for it to be rescinded. Thereafter, the husband applied for it to be made absolute and the court did so make the decree absolute without consideration of wife’s extant application. The judge at first instance set this aside and the husband appealed to the Court of Appeal, who upheld the first instance decision. Interestingly, Moylan LJ noted that the husband’s fraud wasn’t the fatal issue, but rather the procedural irregularity: “if the judge had set aside the decree absolute on the basis only of fraud as to the date of separation, this appeal may have taken a different course. However, the second part of his judgment made clear that he also set aside the decree because of procedural irregularity, namely that the decree had been made absolute in breach of FPR r.7.32(2) because the wife’s application to rescind the decree nisi was pending. This…made the decree absolute voidable” (at [72]).
3. A point taken by the Husband, but not relevant to McFarlane P’s decision, was that even if the Husband in Williams had consented to the Wife’s application, the court did not have the jurisdiction to set aside the final order. The court considered this argument in its analysis but did not rule or comment on the merit of the assertion. An interesting, discrete observation is that the parties’ consent is relevant to the question of setting aside a decree nisi. In the High Court case of S v. S (Recission of Decree Nisi: Pension Sharing Provision) (2002) Fam Law 17, the wife applied to rescind a decree nisi (now ‘conditional order’) pronounced in April 1999 which was never made absolute. The husband supported her application. The purpose was to enable her to bring fresh divorce proceedings, taking advantage of the new legislative regime introduced by the Welfare Reform and Pensions Act 1999 and the pension sharing provisions therein. Those were available in divorce proceedings commenced after 1 December 2000. One may wonder as to the outcome in some future litigation, as a variation on those facts, HMRC were to rely on a final order in pursuing tax liabilities, but the parties were of the united position that it was achieved by mistake.
4. Proposal for change? Most of us are familiar with ‘two factor authentication’ when signing into certain electronic accounts. A further analogy is found in the field of nursing, when dispensing medication that is potent, dangerous, addictive or all three, a common system is that two nurses must check the medication against the prescription and the identity of the patient. Perhaps a similar approach could be taken when a final order is applied for by a solicitor, whereby a text or email is sent to the client involved, requiring them to independently check and confirm the details from their own device. Or, as a slight variation on that, where two members of the firm are required to check and approve the application.
Elizabeth Wark is a barrister at 3 DJB chambers in London.
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