In the light of the President’s recent decision that a challenge to a financial remedy order on the ground of fraud, mistake or material non-disclosure can be made without permission under FPR 4.1(6) ( CS v ACS and another [2015] EWHC 1005 (Fam)), what is the judicial preference for challenge—by that route or by way of appeal, subject to permission?
The current position is that either route is open to a party who wishes to reopen a financial remedy application on the grounds of vitiating circumstances, where no error of the court is alleged. The final sentence of Practice Direction 30A, para 14.1, which suggests otherwise, will be removed in the light of the President’s decision and the Family Procedure Rule Committee is considering possible amendments to the rules to clarify the situation, There are clearly advantages in applying to the first instance judge to set aside the order, but that may not always be appropriate. The Supreme Court may deal with the procedure to be followed in Gohil and Sharland where judgments are awaited.
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