When is a bad application so hopeless that it can be struck out without a full hearing? That question lies at the heart of M v B [2025] EWFC 182, a case that dives deep into the contested territory of strike out powers in financial remedy proceedings.
This judgment, delivered by Sir Jonathan Cohen, is more than just procedural housekeeping—it's a clear-eyed look at a developing legal battleground: whether and how family courts can dispose of unmeritorious applications summarily, and what safeguards must be observed.
The Background
The case began with a substantial consent order: the husband (H) agreed to pay his wife (W) £5.5 million across three instalments. In 2020, following business losses, H applied to vary the order under the Thwaite jurisdiction (on the basis that the order was still executory). That led to a reduced payment agreed in 2021.
In 2024, H returned again, citing further financial deterioration. W responded with a strike out application under FPR 4.4(1)(a) and (b), arguing that H's new application was hopeless and an abuse of process. The issue was whether the court could—legally and fairly—terminate the application before a substantive hearing.
The Core Issue: Does Summary Justice Exist in Family Law?
At the centre of the case was whether FPR 4.4 and PD 9A para 13.8 give family courts the power to strike out or summarily dispose of a set aside or variation application.
Sir Jonathan Cohen's conclusion: the answer remains unclear, and courts must tread carefully.
He highlighted conflicting views:
- Roberts J (AB v CD [2022]): She accepted that PD 9A para 13.8 permits summary disposal of applications to set aside financial remedy orders, where appropriate.
- Francis J (Ma v Roux [2024]): He supported a real prospect of success test akin to CPR summary judgment principles, arguing that new rules and PDs supersede earlier limitations.
- Cohen J's view: Practice Directions cannot create new powers not conferred by the rules. Following Roocroft v Ball, the court should avoid using “summary strike out” procedures that sidestep proper process—especially where the effect is to foreclose on a potentially legitimate claim.
What is the Main Practice Point?
Despite W's argument that H was in flagrant default and raising no new issues, the court refused to strike out the application summarily. Instead, Cohen J opted for an abbreviated hearing later on—recognising both parties’ right to be heard and the danger of short-circuiting justice.
This approach avoids appeal risk and delay. It also affirms a key principle: in financial remedy cases, procedural shortcuts must not undermine fairness.
Strike Out Procedure: A Quick Refresher
Under FPR 4.4(1), the court may strike out a statement of case if:
- (a) it discloses no reasonable grounds for bringing or defending the application;
- (b) it is an abuse of process or likely to obstruct justice;
- (c) there has been a failure to comply with rules or orders;
- (d) both parties consent (in matrimonial applications).
But this power is narrower in the family law context than in civil claims. As Vince v Wyatt and Roocroft v Ball remind us, family proceedings are uniquely sensitive to fact-specific fairness and procedural equality.
Final Thought
M v B confirms that while the strike out rules exist, their reach is limited and heavily scrutinised. As tempting as it may be to rid the system of hopeless applications, family courts must continue to ensure that parties are heard, not just managed.
For practitioners, the message is clear: if you're seeking to strike out a set aside or variation application, expect a high bar—and always prepare for an abbreviated hearing instead.
