SS – v – RS [2023] EWFC 32 (Fam)
Under FPR rule 4.4 the Court has power to strike out “a statement of case” (a) which discloses no reasonable grounds for bringing or defending the application; (b) which is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings; (c) for a failure to comply with a rule, practice direction or court order; or (d) in relation to divorce proceedings, where the parties consent.
Under rule 4.1(1) a “statement of case” means the whole or part of an application form or answer.
In the case of WYATT – v – VINCE [2015] UKSC 14, the Supreme Court allowed an appeal against the striking out of financial remedy proceedings brought nearly 20 years after decree absolute. Although the wife’s application faced “formidable difficulties” she was entitled to the exercise of the court’s discretion on her application.
In SS – v – RS [2023] EWFC 32 (Fam) Sir Jonathan Cohen struck out a husband’s application for an order for sale in the following circumstances.
The District Judge had made an order for his interest in the family home to be transferred to the wife on her undertaking to use her best endeavours to secure his release from the mortgage within a month. The order contained no provision as to what would happen in the event that she was unable to secure his release from the mortgage. The wife also undertook to indemnify the husband against all liability under the mortage.
The wife having been unable to secure the husband’s release from the mortgage, the husband made an application for an order for sale of the house and for compensation.
The wife applied to strike out the application on the basis that the application disclosed no reasonable grounds for bringing the application. By the time the application was heard, the wife had at last managed to secure the husband’s release from the mortgage.
In relation to the application for sale there was an issue as to whether the wife had in fact used her best endeavours to secure the husband’s release. The court was unable to determine that factual issue on a strike-out application; but as the husband had already been released from the mortgage, there was no basis for his application for an order for sale of the property.
In relation to the application for compensation the husband (who was in person) had three arguments :
- (i) that he had suffered loss from the wife’s failure to obtain his release from the mortgage, and the wife should indemnify him against that loss;
- (ii) that the wife’s failure to secure his release for more than 3 years amounted to economic abuse as defined in the Domestic Abuse Act 2021; and
- (iii) “compensation” was one of the principles identified by the House of Lords in the case of MILLER, McFARLANE [2006] 1 FLR 1186.
The Court considered each of these arguments to be misconceived :
- (i) the wife’s obligation to indemnify the husband related only to liability under the mortgage and not to any loss he might have suffered;
- (ii) the Domestic Abuse Act did not give rise to a right to compensation;
- (iii) “compensation” as described in MILLER, McFARLANE was an exceedingly limited concept and did not apply in these circumstances.
The husband’s application had no merit and was struck out.
Comment
Applications to strike out are likely to be very unusual.
As in WYATT – v – VINCE it is rarely if ever likely to strike out a financial remedy application, because it is unlikely to be possible to say that there are “no reasonable grounds” for the application.
In SS – v – RS the claim for compensation was clearly misconceived.
The application for an order for sale failed because the husband had already been released from the mortgage. If the wife had not already secured his release, it might have been more difficult to persuade the Court that there were no reasonable grounds for the application : the Court might have concluded that there was a factual issue requiring the Court to hear the evidence, as to whether the wife had used her best endeavours to secure the husband’s release.
CHRISTOPHER NAISH
19th March 2023