Public Policy

There is a public policy in all litigation, but especially in family law litigation, about finality, conclusion and certainty. Judges constantly testify to the importance of parties knowing that there is an end to the dispute and to the litigation.

Lord Wilberforce in Ampthill Peerage case (1976) 2 WLR 777:

“It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question. How otherwise could a man's life be planned?

This policy has been in statutory form for over a century; This principle of finality of determination is, of course, but one strand in a more general fabric. English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. 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 it closes the book.

The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must 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: so limitation periods may, exceptionally, be extended.

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.”

In addition, the whole direction of the conduct of family law dispute resolution over the past 25 years has been to encourage settlements, agreements and a conciliatory approach. This was the SFLA/resolution Code of Conduct in the early 1970s which still applies today and with even greater force. It is now embodied in the Law Society Family Law Protocol.

It is only rare and exceptional cases which require a final hearing. Cases might be exceptional because of the facts, because of conflicts of evidence, because of the disputed area of law; only exceptional cases like these that should reach that final stage. Too many cases go to a final hearing or close to a final hearing when they should be settled.

Family law directly encourages settlement by allowing for/providing for the making of consent orders. The vast majority of financial disputes on relationship breakdown are settled by consent orders. Therefore lawyers need good knowledge about making consent orders. See the separate notes on the law, practice and procedure of making a consent order.

However the very public policy which encourages finality also discourages appeals and applications to set aside. This is especially on issues of consent orders. Nevertheless, there are genuine cases, exceptional cases, where the consent order is no longer fair and just. It is necessary for another order to be made which is fair and just. Public policy has made the obtaining of this new order hard, procedurally complex, urgent and precise. It is only in these narrow circumstances that public policy will allow any review of the finality of litigation. These notes set out the procedure and law on the breaking of a consent order.

An example was T v M (2013) EWHC 1585 in which only four months after a final order, admittedly after a contested hearing rather than a consent order, and after the wife had given oral evidence on three of the four days of the hearing, the husband applied to vary the maintenance order. The appeal was dismissed by Coleridge J who endorsed the comment of Bennett J in the case of Rose v Rose (2003) EWHC 505 (Fam): " …it is absolutely essential in ancillary relief cases that the court should be able to put a stop to applications seeking to reopen matters already decided by a court, whether by consent or after a contested hearing, if the court is satisfied that no useful purpose will be served by reopening the matter."