Rupert Chapman

Supreme Court to consider strike-out application in family proceedings

The Supreme Court is to consider an appeal in relation to the role of applications to strike out claims in financial remedies claims, with implications for other family proceedings (except those involving children), in a landmark case on which permission to appeal has been granted.

In Vince v Wyatt [2013] EWCA Civ 495 the Court of appeal considered an appeal against a Deputy High Court Judge’s decision to refuse to allow an application by the husband (H) to strike out the wife’s (W) application for financial remedies without a full consideration of the merits of that application.

The parties had been married for only 3 years and had one child, with another child being treated as a child of the family. They had been undergraduates at the time and had chosen to adopt a traveller lifestyle during their marriage, having neither assets nor income. They had separated in 1984 and divorced in 1992. H had claimed that there had been an application for ancillary relief which had been dismissed, but there was no evidence and no existing paperwork. In 1995 W had entered into another relationship, by which she had children, and H had started a successful business with the support of his new partner, which was at the time of the hearing said to be worth ‘many millions’. H had married his new partner in 2006 and had a child through that relationship. The parties’ child was, by the hearing, an adult, living with H and making his career in H’s business.

W did not make any claim until 2011 (more than 18 years after the divorce), when she sought the full range of orders available to her as well as an order for the payment of £125,000 towards her legal costs. H, in response, sought an order to strike out W’s application, relying on rule 4.4(1) of the Family Procedure Rules 2010. The court considered that application together with W’s application for a ‘fighting fund’ to pursue the proceedings.

Rule 4.4(1) permits the court to strike out a statement of case if;

(a) It discloses no reasonable grounds for bringing or defending the claim,

(b) It is an abuse of process or will obstruct the just disposal of proceedings,

(c) There has been a failure to comply with a rule of Court, Practice Direction or Order, or

(d) In matrimonial proceedings and Civil Partnership proceedings, the parties consent.

H relied on the prejudice caused by the delay, in particular the fact that he could neither show that there had been previous proceedings, nor what the outcome of those proceedings had been, and on the case of Rossi v Rossi [2007] 1 FLR 790 in which it had been suggested that a claim brought outside 6 years after the divorce would be unlikely to succeed. He relied on the short length of the marriage, the lack of any assets at the time, and asserted that the application was an abuse of process, as well as being without reasonable grounds. The Judge had come to the conclusion that the delay did not justify a strike-out under rule 4.4(1)(a) which he felt to be reserved to cases involving a lack of jurisdiction, and that there would be a prejudice to W in striking out under rule 4.4(1)(b) where she may be able to show just reasons for her delay at trial. As such he refused the application for strike-out and allowed the costs order.

Thorpe LJ, giving the lead judgement, held that;

Rule 4.4(1) was designed to bring the FPR into line with the CPR.

In considering an application for a strike-out under Rule 4.4(1), the court should consider all relevant considerations within the history of the case and exercise its case management powers. The case of Crossley v Crossley [2008] 1 FLR 1467 was an example of the proper use of the court’s case management powers. It is implicit that the Court disagreed with the narrow interpretation of rule 4.4(1)(a) as applying only to cases which showed a want of jurisdiction.

Those factors included the prejudice to H from delay as well as the use of court resources.

The facts of the specific case were extreme, where the delay had been so long and W had lived an impecunious life with both H and her later partner.

An order for the payment of legal fees was inappropriate both because of the successful strike-out application and because there were generally so many problems with W’s case that the prospect was of H succeeding in having the claim dismissed and not only being unable to recover his own costs, but having paid for W to mount the claim in the first place.

Jackson LJ, drew attention to the similarities between the CPR and the FPR in relation to strike-out applications, while highlighting that it was ‘odd’ that there was no ancillary power to give a summary judgement as there was in the CPR, but that the fact did not require the court to allow a hopeless case to progress to trial. In particular rule 4.4(1)(b) should be interpreted in the same manner as Rule 3.4(2) of the CPR. He took the view that applications for strike-out would only succeed in rare and exceptional cases.

The matter returned to the Court of Appeal in June 2013 when the Court heard an application by H to obtain a refund from W of the monies he had paid over under the costs order between the first instance decision and the Court of Appeal’s decision. The Court of Appeal distinguished this case from that of Moses-Taiga v Taiga [2005] EWCA (Civ) 1013 and ordered that W should repay the monies she had received after the Court of Appeal had listed the matter for an oral hearing.

The Supreme Court will be asked to address 6 separate grounds for appeal, the central issues being;

(a)    Whether the Court has the power to strike out an application for financial remedies without the merits being considered at trial, and

(b)   Whether the Court was right to order return of legal fees paid under the interim maintenance order for the purposes of legal fees, and which had been spent by the time of trial.

The hearing is likely to be in December 2014.

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