Judgment received in Michael Glaser & Phillip Blatchly’s success in the Court of Appeal

On 19 January 2017 Michael Glaser and Phillip Blatchly successfully represented the husband against a wife’s appeal which would have set aside a consent order from 2005 on the basis of non-disclosure, in the well publicised matter of Norman v Norman [2017] EWCA Civ 120.

The application for permission to appeal had a long history – Lady Justice King noting that there had been litigation for 18 years since separation which is “over three times the length of the marriage”.

The case broke new ground in that Lady Justice King confirmed that the correct procedure to set aside the 2005 order would either be an appeal, now 11 years out of time, or an application to set aside pursuant to FPR 4.1(6). The Court held that an application under FPR 4.1(6), if promptly made, should be considered with the criteria in Tibbles v SIG PLC [2012] EWCA Civ 518, with the “desirability of finality in litigation”, the undesirability of litigants having “two bites of the cherry” and the “the need to avoid undermining the concept of an appeal”. Lady Justice King held that Mrs Norman’s application had to be refused on that basis alone, it being her “third bite” of the cherry.

Mrs Norman sought to rely on Sharland v Sharland, which shifted the burden of proof for allegations of non-disclosure. However, Michael and Phillip were able successfully to deploy the rule in Henderson v Henderson, which prevents a party from relying on something they could have deployed in previous litigation and the Court agreed with their approach, Lady Justice King stating that it is “axiomatic that the ‘material change in circumstances’ must relate to the issue in the case”.

Further the Court held that neither that Arnold v Westminster Bank nor Virgin Atlantic Airways v Zodiac Seats assisted Mrs Norman in respect of the issue being res judicata. Although a judgment refusing permission to appeal, Lady Justice King gave permission for this judgment to be cited as authority pursuant to the Practice Direction of 9 April 2001 as it established a new principle and/or extended the present law.

Lady Justice Gloster and Lord Justice Lewison agreed with the judgement of Lady Justice King.