McFarlane: Public policy supports upholding order
One of the country’s highest-profile family law firms obtained a final order of divorce for a client in error without her instructions or authority, it has emerged.
The president of the Family Division, Sir Andrew McFarlane, this week refused an application to rescind the order which London firm Vardags sought through the online divorce portal.
“There is no reported authority where a decree absolute or final order has been set aside in circumstances of complete procedural regularity,” he said.
“There is no authority establishing that a final order made in such circumstances is to be considered voidable, let alone void.”
McFarlane P declined to hold that the order was “rendered voidable by the lack of actual consent from the wife, where her solicitors were generally authorised to act for her and the court was entitled to accept the application for the final order made by them as being validly made on her behalf”.
The parties separated in January 2023 after more than 21 years of marriage. The wife issued an application for divorce and a conditional order was made, directing that she could apply for a final order of divorce from 21 September 2023.
Vardags told the court that the member of staff involved had intended to apply for a final order of divorce for another client, but inadvertently opened the electronic case file in ‘Williams v Williams’ and proceeded to apply for a final order.
Having realised the mistake two days later, the firm applied on behalf of Mrs Williams to rescind the order; it did so without notice to the husband’s solicitors because the order was made on that basis.
It informed the husband’s solicitors a few days later, who wrote to the court asking for the application to be listed before the president.
“Communications continued between the parties’ solicitors on this issue, in particular in relation to concerns that the husband had as to the impact that any final order for divorce may have on his will and tax arrangements,” the ruling said.
There remain ongoing contested financial remedy proceedings.
It later emerged that Deputy District Judge Underhill had made an order purporting to set aside the final order but McFarlane P set that order aside as Vardags had not made a formal on-notice application, as it should have done.
He continued: “[Counsel for the wife, Richard Todd KC] could not point to any authority to make good his assertion that the exercise by the solicitor of their apparent authority to act for the wife in applying for the order was vitiated by the fact that the wife had not consented, thereby making the order voidable.
“I am unpersuaded that these circumstances do render the order voidable.
“Further, I accept [counsel for the husband, James Ewins KC’s] submission 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.
McFarlane P dismissed the application to set aside the order, adding that, if he was wrong and the order was voidable, “any public policy or other factor in favour of setting the order aside would be far outweighed by the almost invariable policy preference not to do so”.
The president specifically rejected Mr Todd’s characterisation of the error as being simply that of someone at Vardags “clicking the wrong button”, noting that the names of the parties were prominently displayed throughout the process.
“At the final stage, after clicking the request for a final order, a further screen comes up inviting the operative to confirm that this is indeed what is sought – again the name of the case is prominently displayed on this screen.
“The potential, which Mr Todd described, for a litigant in person, or their well-meaning relative, to operate the portal and make the same mistake as the professional operative at Vardags apparently made, does not exist.
“A litigant in person will only have access to their own case, with no potential for them to apply for a final order in a different divorce application.”
Vardags did not respond to a request for comment.
Can the professional portal have some additional provisions, perhaps an option for applicants solicitors to “lock” a case pending resolution of FR proceedings or a question asking if FR order made(not that that bars an application for FO but it woukd provide another opportunity to stop and think). It is something I always worry about especially when there can be some cases where surnames are common.