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Family Law

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25 JUN 2013

Evidence, Practice and Procedure: Estoppel and strike out - bars to re-litigation

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsAbuse of process and its related issue estoppel, have been before family courts in reported decisions on at least three occasions in the past six months: Vince v Wyatt [2013] EWCA Civ 495 and T v M [2013] EWHC 1585 (Fam), Coleridge J were both strike-out applications; and in BP v KP, NI and OI [2012] EWHC 2995 (Fam), Mostyn J considered a preliminary issue application based on H's assertion that W was prevented by issue estoppel from running a recklessness argument.

The relationship between these cases derives from the idea that a person should not be troubled twice by the same - or in the case of Vince, any - litigation. The interrelationship between strike out and issue estoppel is explained by the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1. The strike out jurisdiction derives from the common law, and is formalised in family proceedings in FPR 2010 r 4.4(1), thus:

(1) ... the court may strike out a statement of case if it appears to the court -

(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings ...

 Vince v Wyatt has been considered here recently (a former wife sought to pursue a financial remedy case over twenty years after the couple's marriage had ended). The strike out jurisdiction was lucidly explained in that case by Jackson LJ. In T v M a husband was unhappy at the court's finding as to his wife's earning capacity and the maintenance she had consequently been awarded. He did not appeal against the order. He applied for variation of the periodical payments (Matrimonial Causes Act 1973 s 31), four months after it had been made. W applied to have his application struck out. The district judge - who had also dealt with the original order - granted her application. Coleridge J dealt with H's appeal from that strike out.

The thrust of Coleridge J's decision is blunted by the fact that he does not know on which of r 4.4(1)(a) or (b) (see para [11]) the district judge struck out H's application. He thinks probably (a); but the technical term of ‘abuse of process' could be fairly and usefully (perhaps) applied to short-dated variation applications (as here). There is no minimum time before a spouse can apply. Coleridge J did not reflect upon the point. He merely dismissed H's appeal in default terms: by saying it was not (b), from which the reader must infer (a):

[24] I do not think that ... it is a proper use of the court's time or a proper use of the court process to allow this case to proceed, but I would not go as far as to say it amounts to abuse.  It does not, it seems to me, satisfy the very high threshold that is imported into [a s 31 variation] application of this kind and I cannot find fault in the end with the district judge disposing of the case in the way that he did.

In BP v KP, NI (considered here in March) Mostyn J analysed  recent law on res judicata and considered fully an issue estoppel argument of H, as to whether W, by her earlier settlement of a case, was estopped from taking a point in subsequent separate proceedings. He held that W was not bound by any estoppel.

Mrs Vince was not permitted to run her case at all, thanks to the passage of time. H in T v M was halted in limine since he had only recently run similar points in court (this point may need further judicial clarification). Mrs BP's issue had not been tried. She may have agreed to something: but a trial on the merits? That particular constituent of issue estoppel was unquestionably absent, so no one was being troubled again by her litigation. Because so long out of time Mrs Vince's litigation was an abuse; and H in T v M was attempting re-litigation almost before the ink on the order sought to be varied was dry.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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