Litigators should take note of the High Court judgment in Williams v Williams [2024] EWHC 733 (Fam) in which the Court refused to set aside a final order which had been applied for in error using an online portal.
Background
On 9 August 2023 a conditional order was made in divorce proceedings, which provided that an application for a final order may be made from 21 September 2023. On 3 October 2023, the wife's solicitors applied for a final order via the HMCTS portal - by mistake, and without their client's knowledge or instructions - having intended to apply for a final order for another client with a similar name. The solicitors discovered their mistake on 5 October 2023 and applied to set aside the final order the following day.
After being informed of the without notice application to set aside the order, the husband's solicitors requested the application be listed for a hearing on notice before the President of the Family Division. It was then listed on 8 March 2024. Meanwhile, on 17 October 2023, a Deputy District Judge considered the wife's application on paper and set aside the final order,. The husband disputed the Court's jurisdiction to make that order.
Decision
The Court set aside the 17 October 2023 order, as the husband's request for the set aside application to be listed on notice should have prevented a determination on the papers.
Dealing with the substantive application, the wife's solicitors submitted that the original error was simply the result of "clicking the wrong button". However, the Court found that several stages and "screens" of the online process had been passed, each of which prominently displayed the names of the parties, before the final stage was reached and the "final click" was made. Taking into account case law authority, and public policy considerations (that in divorce proceedings "a final order made without procedural irregularity should stand for all the world"), the Court decided that the final order in the divorce would stand.
Implications
Whilst the full background and circumstances in which the error was made by the wife's solicitors is unknown, many people would admit to having made a mistake in an online process at some point. As such this decision might seem harsh at first glance. However, it is premised on strong public policy considerations particular to divorce proceedings.
In light of this decision family lawyers should review their supervision and risk management processes, to avoid a similar error in the future. The same public policy considerations may not be in play in litigation more generally, but this case is a reminder to all litigators to take care, particularly as Court processes are increasingly moving to online platforms.
