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Family Law

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Court of Protection Practice and Procedure Conference 2016

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11 MAR 2015

Vince v Wyatt [2015] UKSC 14

Vince v Wyatt [2015] UKSC 14

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 972]

Hilary Term[2015] UKSC 14
On appeal from: [2013] EWCA Civ 495; [2013] EWCA Civ 934


Wyatt (Appellant)
Vince (Respondent)


Lady Hale
Deputy PresidentLord ClarkeLord Wilson
Lord Hughes
Lord Hodge

Heard on 8 and 9 December 2014

Philip Cayford QC
Simon Calhaem
Miriam Foster
(Instructed by Mishcon de Reya)

Martin Pointer QC
Simon Webster
Rebecca Bailey-Harris
(Instructed by Schillings)

LORD WILSON: (with whom Lady Hale, Lord Clarke, Lord Hughes andLord Hodge agree)


[1] It will be convenient to describe the appellant and the respondent as the wifeand the husband even though they were divorced 22 years ago.

[2] The circumstances of the case are highly unusual. The suit for divorceproceeded in the Sunderland County Court and, within weeks of the grant ofthe decree absolute on 26 October 1992, the court file was transferred to theGloucester and Cheltenham County Court. But that court has either destroyedor mislaid the file. The current internal instruction to courts is to retaindivorce files for 100 years but to allow them to strip them of most documents(including, oddly, the petition) after 18 years from the date of the final order.The fact that not even a stripped file has been found suggests that the wholefile has been mislaid. Furthermore neither party presently holds anydocument relating to the divorce proceedings other than the decree absolute.In 2011 the wife issued an application within the proceedings for financialorders, in particular for an order that the husband should make payment of alump sum to her in satisfaction of all her claims. She also applied for an orderthat the husband should make interim periodical payments to her in sumsequal to her estimated costs of the substantive application pursuant to thedecision of the Court of Appeal in Currey v Currey (No 2) [2006] EWCACiv 1338, [2007] 1 FLR 946. The husband cross-applied for an order that thewife’s substantive application, which had been fixed to be heard for threedays beginning on 15 April 2013, be struck out pursuant to Rule 4.4 of theFamily Procedure Rules 2010, S1 2010/2955, (“the family rules”). On 14December 2012 Mr Nicholas Francis QC, sitting as a deputy judge of theHigh Court, Family Division, dismissed the husband’s cross-application and,on the wife’s application, ordered the husband to make interim periodicalpayments to her, indeed “directly to [her] solicitors”, at the rate of £31,250per month for four months (ie a total of £125,000) beginning on 2 January2013 (“the costs allowance order”). The husband appealed to the Court ofAppeal against both orders. By orders dated 13 June 2013 that court (Thorpe,Jackson and Tomlinson LJJ, [2013] EWCA Civ 495, [2013] 1 WLR 3525),set aside the orders of the deputy judge; struck out the wife’s substantiveapplication; and ordered that, of the £125,000 which by then the husband hadpaid in full, the wife should repay to him such sum as exceeded the state ofher account with her solicitors on 17 January 2013, which amounted to anorder for repayment of £36,677 (“the repayment order”). The court explained its striking-out order and its repayment order in judgments delivered on 8May and 13 June 2013 respectively.

[3] The wife appeals against the orders made by the Court of Appeal and thusseeks the reinstatement of the orders of the deputy judge. Her appeal raisesthe following questions:

(a) What is the extent of the jurisdiction to strike out a spouse’sapplication for a financial order under Rule 4.4 of the family rules?

(b) In the light of the factors relevant to the determination of the wife’sapplication did the Court of Appeal err in striking it out?

(c) If the answer to (b) is yes, what case management directions would beproportionate to the unusual circumstances of the wife’s application?

(d) Irrespective of the answer to (b), did it err in setting aside the costsallowance order and/or in making the repayment order?

The parties' present circumstances

[4] The wife is aged 55. According to her written evidence, which (as thehusband accepts) should be assumed to be true for the purposes of his strikeoutapplication, she is in poor health. She lives in a house with three or fourbedrooms in Monmouth which in 2010 she purchased from the local authorityon a discounted basis under the Right to Buy scheme for £60,000 by virtueof a mortgage in that amount. The house is in a poor state of repair.

[5] The wife has the following four children.

(a) Emily, who is aged 36. Emily was born to the wife prior to themarriage by a man other than the husband. Emily’s father nevermaintained her. Upon the marriage the husband and the wife treatedher as a child of the family. Throughout her life Emily has encountereddifficulties which the wife has tried to help her to surmount. Emilylives in the house in Monmouth. She has a daughter, aged four, wholives mid-week with the wife’s mother and at weekends and duringholidays in the house in Monmouth.

(b) Dane, who is aged 31. He is a child of the marriage. Thirteen yearsago, when he became 18, Dane moved from the house in Monmouthin order to live with the husband and to work for his company.

(c) and (d) Robin, who is aged 21, and Jessie, who is aged 18. They wereborn to the wife long after her separation from the husband by a manwho has never maintained them. They live with the wife in the housein Monmouth.

[6] The wife subsists partly on her wages generated during periods of low-paidemployment, albeit punctuated by periods of ill-health, and partly on statebenefits. The three adult children resident in her household appear to makeno more than modest contributions to its running expenses.

[7] The husband is aged 53. He has achieved brilliant success and is clearly aremarkable man. For several years following the breakdown of the marriagehe was, as I will explain, a new-age traveller, protesting loudly againstnuclear weapons and, generally, in favour of green solutions to society’sneeds. His long-standing interest in green energy, together with his innatescientific ingenuity, led him in due course, and from the smallest beginnings,to develop the commercial supply of wind power. He is now the soleshareholder of Ecotricity Group Ltd, a company which, through others,provides green electricity to at least 70,000 homes and businesses in the UKfrom its fleet of turbines. The value of his company is at least £57m. He liveswith his second wife, their small son and Dane in a Georgian hill fortoverlooking Stroud.

The history

[8] Early in 1981, when she was aged 21, the wife met the husband, who wasaged 19. He and some friends were renting a house in Stafford. In the summer1981 the wife moved with Emily, then aged two, into the house and began tocohabit with him. She enrolled on a degree course at North StaffordshirePolytechnic but, after one term, abandoned it. She says (but he denies) thathe persuaded her to abandon it.

[9] On 18 December 1981 the parties were married. Thereafter they largelysubsisted on state benefits. Late in 1982 they moved to Norfolk. By then thewife was pregnant. She says (but he does not recall) that she enrolled on adegree course at the University of East Anglia but was constrained to withdraw from it when unable to make arrangements for the care of Emilyand the coming baby.

[10] On 2 May 1983 Dane was born. Late in 1983 the family moved to rentedaccommodation in Lowestoft but early in 1984 the husband moved into abed-sitting room elsewhere in the town. If brief subsequent reunions allegedby the wife (but denied by the husband) are ignored, their marital cohabitationthen came to an end: it had subsisted for just over two years.

[11] Then began the husband’s life as a traveller. It was to continue for about eightyears. In 1984 he left Lowestoft in an old ambulance which had beenconverted into a camper van. Although the circumstances are disputed, itseems that, during that first year of separation, Dane, albeit aged only one,was spending much of his time with the husband on the road rather than withthe wife and Emily in Lowestoft. The wife says (but the husband disputes)that in the summer 1984 she and Emily joined the husband and Dane in theambulance on a site in Bath and that in the following summer, after Dane hadon any view gone back to live permanently with her, she and the childrenjoined the husband at Stonehenge for the summer solstice. Then she movedwith the children to Sunderland.

[12] From 1985 to 1995 the life of the wife and children, and indeed of thehusband, was profoundly unsettled.

(a) In 1985 the wife obtained work in a women’s refuge in Sunderland.

(b) In 1985/86 the husband drove to Spain with a new partner in a 30 yearold fire engine which he had converted so as to burn diesel rather thanpetrol. He stayed there for a year.

(c) Following his return to England, the husband rejoined the travellingcommunity but visited Sunderland on various occasions in order to seethe children.

(d) In 1988 the wife moved with the children to Durham and makes anassertion (about which the husband has no recollection) that she thenenrolled on a course at Durham University but had to withdraw fromit for lack of his financial support of herself or the children.

(e) In June 1989 both the husband and the wife and children attended theGlastonbury festival. The wife introduces it as a “reconciliation” buton any view they did not resume cohabitation there.

(f) At around the same time, allegedly at the husband’s request, the wifeleft Durham with the children in order to live on a local authoritytravellers’ site in Swindon. The husband describes the site as akin to arubbish tip. When not travelling during the summer, he had begun tolive with his partner on a site in Stroud, to which the wife and childrenmoved for a few weeks.

(g) For almost two years between 1989 and 1991 the wife and childrenoccupied travellers’ sites in the west country. The three of them livedfrom hand to mouth. In the autumn 1991 the wife obtained a jobpicking fruit for a fortnight and this (so she says but the husbanddisputes) explains why the children went temporarily to live with himin a trailer on another site near Stroud. The wife says that, at the endof the fortnight, the husband refused to return them to her and it seemsthat, by a ruse and with the aid of her stepfather, the wife spirited themback to Sunderland, where she and the children set up home again.

(h) In 1992 the wife and children moved to a house in the Forest of Dean.Shortly afterwards the wife struck up a relationship with the father ofRobin and Jessie, who was working there temporarily. He returned tohis home in Somerset prior to Robin’s birth and, when late in 1995, hewent to the wife’s home in order to visit Robin, Jessie was conceived.In his judgment delivered on 8 May 2013, Thorpe LJ described thewife’s relationship with the father of Robin and Jessie as “tantamountto marriage” and therefore suggested that, during its currency, anyclaim by the wife against the husband would have carried littlecredibility; but, with respect and as the husband accepts, thatdescription by the learned lord justice represented a substantialmisunderstanding of the evidence.

(i) Early in 1994 Emily, who was then aged 15 and who was beginningto present the difficulties which have since beset her, moved to livewith the husband and his partner. But, after about a year, she returnedto live with the wife.

(j) Shortly after Emily’s departure from it, the wife, Dane and Robin wereevicted from the house in the Forest of Dean and, according to the wife (as to which the husband has no recollection), moved to live in ashelter for the homeless.

(k) In 1995 the local authority let to the wife the house in Monmouthwhich she has since bought from it. There she, Emily, Dane, Robinand, following her birth in 1996, Jessie all began to reside; and therethey continued to live from hand to mouth, largely on state benefits. AHazard Awareness Notice issued by the local authority in 2010 statedthat the house was heated by only two electric fires; that there was nohot water in the kitchen; that the house was damp; and that the backdoor could not be locked.

Legal proceedings

[13] Meanwhile, in 1991, there had been legal proceedings between the parties.They were precipitated by the wife’s removal of the children back toSunderland. The husband issued an application in the Sunderland FamilyProceedings Court for an order that both children should reside with him. Nocopy of the court’s order survives but it is agreed that early in 1992 thejustices instead ordered that the children should reside with the wife. It mayalso have made an order for contact, perhaps for reasonable contact, in favourof the husband. The parties agree that the justices also ordered that thehusband should make nominal periodical payments to the wife for the benefitof the children. For the general removal of the ability of a court to exerciseits jurisdiction to make an order for child maintenance was not to take effectuntil a year later: section 8(3) of the Child Support Act 1991.

[14] Early in 1992, in the Sunderland County Court, the wife issued the petitionfor divorce which resulted in the decree absolute dated 26 October 1992. Didshe include in her petition applications for the full range of financial ordersfor the benefit of herself? In the absence of any copy of it, we can make onlyan educated guess – which is that she did so. Such was the usual practice. Butit matters not for, in the absence of her remarriage (which would haveprecluded her doing so: section 28(3) of the Matrimonial Causes Act 1973(“the 1973 Act”)) it was open to her to initiate applications for them in 2011or at any time. Then the potentially important further question arises:assuming that in her petition she included applications for financial orders,what orders, if any, were then made upon them? The husband asserts a clearrecollection that, following the transfer of the proceedings to the Gloucesterand Cheltenham County Court, it ordered that “[he] did not have to pay [thewife] any money”. His asserted recollection is of course, consistent with eachof three hypotheses:

(a) that the court made only a nominal order for the husband to makeperiodical payments to the wife; or

(b) that its order on her applications was “no order” or (which amounts tothe same thing) that it never addressed them; or

(c) that it dismissed all the wife’s applications; in that event it would notbe open to her to bring the present proceedings.

The Court of Appeal considered it “likely” that no order was sought or made,ie it favoured hypothesis (b). I agree. The court added that hypotheses (a) and(c) were possible. Hypothesis (a) is indeed a significant possibility but in myview hypothesis (c) is so remote a possibility as entirely to be discounted.Notwithstanding the shortness of the marital cohabitation and its expiry eightyears previously, I cannot imagine that the court would have dismissed thefinancial applications of the wife (who was also a young mother) in theabsence either of her consent or of a capital payment by the husband, neitherof which is suggested to have been forthcoming.

Failure to support the children

[15] The wife strongly relies on the husband’s lack of financial support of Daneuntil 2001. She also relies on his failure to support Emily from 1984 onwardssave during the year when she lived with him. But in respect of Emily, treatedas a child of the family, the husband would be able to point out that the extentof his obligation to maintain her at any time during her minority would havebeen influenced by the extent, if at all, to which he had at an earlier timeassumed responsibility for maintaining her: section 25(4)(a) of the 1973 Act.

[16] The wife contends that, from about 1994, the husband gave pocket money toDane during periods of contact; that once he bought a computer and a deskfor him; but that, despite repeated pleas on her part, he never made paymentsto her for the support of Dane or indeed of Emily. The husband’s case differsonly in degree. He contends that he made occasional cash payments to thewife of up to £200; that from time to time he provided her with second-handcars; and that there was a period of unspecified length during the later yearswhen he provided her with regular monthly cash payments of £200.

[17] Although for present purposes the wife’s case must be taken at face value, ithappens in any event to be virtually common ground that during all thoseyears the husband did not provide the wife with any substantial payments of maintenance for either of the two children; and that she struggled to maintaina home for them in circumstances of real privation bordering upon poverty.For most of those years the husband’s failure to pay maintenance reflectedhis inability to pay it. It is clear that, in making only a nominal order in favourof the children the justices in Sunderland in 1992 were satisfied that he wasunable to provide support. Equally in March 1997 the Child Support Agency,to whom the wife had applied for support, assessed the husband’s liability tosupport Dane at nil. The wife adds that both in 1994 and in 1996 she consultedsolicitors in an attempt to extract maintenance for herself and the childrenfrom the husband but that, no doubt for the same reason, nothing came of it.

[18] Meanwhile the husband was taking those first steps which, in retrospect, canbe seen to have led to his phenomenal success. One year early in the 1990s,at the Glastonbury festival, he fixed a windmill to the top of an old pylon,installed batteries at its foot, plugged in four large mobile telephones andoffered festival-goers a wind-powered phone service. Then he went toCornwall to inspect Britain’s first wind turbines. Thereupon he and a partnerbegan to make wind-monitoring equipment. Then in 1996, following thegrant of planning permission and with the aid of a substantial bank loan, heand two others, through a limited company, erected a wind turbine on the topof a hill at Nympsfield, near Stroud, by which they generated and soldelectricity. Suddenly the company began to generate a substantial net pre-taxprofit: it was £236k in 1997 and it doubled within the following three years.There is no need to chart the later expansion of the husband’s businesses. Thefact is, therefore, that it was only in the final years of Dane’s minority thatthe husband was in a position to pay substantial maintenance for him.

Strike-out in family proceedings

[19] Rule 4.4 of the family rules, which contains the power to strike out anapplication in family proceedings, has no parallel in any of the preceding setsof rules which governed what are now called family proceedings. There hasalways been an inherent jurisdiction, at any rate in the High Court, to protectthe court by striking out material abusive of its process; but there is no valuein today considering its extent. Paragraph (4) of Rule 4.4 provides thatparagraph (1) does not limit any other power of the court to strike out astatement of case but no one suggests that the deputy judge had an inherentjurisdiction to strike out which went wider than that set by paragraph (1). Inmy view family courts may, like civil courts, now safely proceed on thefooting that, were their power under the rules not to go so far as to enablethem to strike out the statement, their inherent jurisdiction, if any, would gono further: Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1WLR 2004, para 42. The family rules came into force on 6 April 2011 and,prior to the decision of the Court of Appeal in the present case, there was no reported authority on the construction of Rule 4.4. So far as is material, therule, which does not apply to proceedings in relation to children, provides:

“(1) … the court may strike out a statement of case if it appearsto the court –a) that the statement of case discloses no reasonablegrounds for bringing or defending theapplication;b) that the statement of case is an abuse of thecourt’s process or is otherwise likely to obstructthe just disposal of the proceedings …”

[20] Rule 4.4(1) is modelled upon Rule 3.4(2) of the Civil Procedure Rules 1998,S1 1998/3132, (“the civil rules”), which came into effect on 29 April 1999.Indeed, of the words in Rule 4.4 quoted in para 19 above, only one differsfrom those in Rule 3.4(2), which refers at (a) to bringing or defending the“claim” rather than the “application”. It would be odd if in familyproceedings the words in Rule 4.4(1) extended to a situation to which, iftransposed to civil proceedings, the words in Rule 3.4(2) would not extend.

[21] Although the principal task is to construe the words “no reasonable grounds”and “abuse of the court’s process” in (a) and (b), Rule 4.4(1) poses apreliminary conundrum. The power is to strike out a “statement of case” ifthat statement is an abuse or (which in particular generates the conundrum)if it “discloses” no reasonable grounds. Rule 4.1(1) provides that, in Part 4,“statement of case” means the whole or part of an application form or answer.The form to be used in applying in divorce proceedings for a financial orderis Form A: see Rule 5.1 and Table 2 in Practice Direction 5A supplementaryto that rule.

[22] The conundrum stems from the fact that Form A in effect requires theapplicant to do no more than to identify the names and addresses for serviceof herself and the respondent and to specify the financial order or orders forwhich she is applying. The form does not enable the applicant there to set outthe grounds of her application. Instead she will no doubt do so in her financialstatement, which, save as otherwise directed, must be in Form E and must befiled and served at least five weeks prior to the first appointment: Rules 9.14and 5.1 and Table 2 in Practice Direction 5A. It would therefore make nosense to ask, as a literal construction of the rules would require, whether the Form A discloses reasonable grounds for bringing the application: for it neverdiscloses any grounds at all. We must do our best to make the rules operatesensibly and I suggest that, pending possible reconsideration by the FamilyProcedure Rule Committee either of Rule 4.1(1) or of Rule 4.4(1)(a) and (b),the phrase “statement of case” in (a) and (b) should be taken to refer to thestatement in support of the application for a financial order as well as to theapplication in Form A itself.

[23] So, then, to the principal task, namely the construction of the words “noreasonable grounds” and “abuse of the court’s process”. In this respectsubparagraphs 1 and 2 of paragraph 2 of Practice Direction 4A, whichsupplements Rule 4.4, are helpful. They say:

“2.1 The following are examples of cases where the court mayconclude that an application falls within rule 4.4(1)(a) -

(a) those which set out no facts indicating whatthe application is about;

(b) those which are incoherent and make no sense;

(c) those which contain a coherent set of facts butthose facts, even if true, do not disclose anylegally recognisable application against therespondent.

2.2 An application may fall within rule 4.4(1)(b) where itcannot be justified, for example because it is frivolous,scurrilous or obviously ill-founded.”

Subparagraphs 1 and 2 are closely modelled on subparagraphs 4 and 5 ofparagraph 1 of Practice Direction 3A, which supplements Rule 3.4 of the civilrules. Apart from having, intriguingly, chosen to replace “vexatious” with“frivolous” in subparagraph 2, the makers of the family rules chose to adoptthe examples given by the makers of the civil rules in effect word for word.One might, in the light of this parallel, even more confidently have inferredthat the makers of the family rules intended that their reference to “noreasonable grounds” and “abuse of the court’s process” should carry the samemeaning as in the civil rules.

[24] The civil rules, however, expressly confer a further power, namely to givesummary judgment. Rule 24.2 empowers the court in civil proceedings togive summary judgment if it considers that the claimant or defendant has noreal prospect of successfully prosecuting or defending the claim and if thereis no other compelling reason why the case should be disposed of at a trial.In the civil rules Practice Direction 3A draws a link between the powers tostrike out and to give summary judgment in civil proceedings. Paragraph 1.2explains that they are two distinct powers which may be used to achieve thesummary disposal of issues which do not need full investigation at trial.Paragraph 1.7 is as follows:

“A party may believe he can show without a trial that anopponent’s case has no real prospect of success on the facts, orthat the case is bound to succeed or fail, as the case may be,because of a point of law (including the construction of adocument). In such a case the party concerned may make anapplication under Rule 3.4 or Part 24 (or both) as he thinksappropriate.”

It is indeed common practice in civil proceedings to join an application tostrike out under Rule 3.4 with an application for summary judgment underRule 24.2. But in Swain v Hillman [2001] 1 All ER 91 at p 92 Lord WoolfMR observed that the power under Rule 24.2 was wider than the power underRule 3.4 and that under the latter, unlike the former, the general focus of thecourt was only upon the statement of case which was alleged to disclose noreasonable grounds for bringing the claim. Or, as my Lady, then Hale J,crisply put it three months later, “the essence of a strike out is that one doesnot look at the evidence on the claim”: Bridgeman v Brown, Court of Appeal,19 January 2000, All England Official Transcript, p 4.

[25] Now arises the complication. On the one hand the family rules contain nopower analogous to Rule 24.2 of the civil rules to give summary judgment.On the other hand paragraph 2.4 of Practice Direction 4A, which supplementsRule 4.4 of the family rules, provides:

“A party may believe that it can be shown without the need fora hearing that an opponent’s case has no real prospect ofsuccess on the facts, or that the case is bound to succeed or fail,as the case may be, because of a point of law (including theconstruction of a document). In such a case the party concernedmay make an application under rule 4.4.”

The paragraph is of course modelled on paragraph 1.7 of Practice Direction3A in the civil rules, set out at para 24 above.

[26] In giving the leading judgment in the Court of Appeal, with which Jacksonand Tomlinson LJJ agreed, Thorpe LJ based the decision to strike out thewife’s application on Rule 4.4(1)(a), namely on the absence of any reasonablegrounds for bringing it. But, in giving a concurring judgment with which inturn Thorpe and Tomlinson LJJ also agreed, Jackson LJ identified analternative basis for the decision. He suggested that it was unfortunate thatthe family rules contained no rule equivalent to Rule 24.2 of the civil rules;that the effect of the omission could not be that an application for a financialorder which had no real prospect of success had to proceed to trial; that thesolution lay in Rule 4.4(1)(b), namely that an application which had no realprospect of success was an abuse of the court’s process; and that the wife’sapplication was a classic example of it.

[27] As a result of the fuller argument with which this court has been presented,it is clear to me that, with respect, Jackson LJ was wrong to insinuate into theconcept of abuse of process in Rule 4.4(1)(b) of the family rules anapplication for a financial order which has no real prospect of success. Thelearned Lord Justice did not (and could not) suggest that the omission fromthe family rules of any rule analogous to Rule 24.2 of the civil rules wasaccidental. It was deliberate; and so it was bold for him to say thatnevertheless the effect of that rule was to be discerned elsewhere in the familyrules. Although the power to strike out under Rule 4.4(1) extends beyondapplications for financial remedies, for example to petitions for divorce, nodoubt it is to such applications that the rule is most relevant. The objection toa grant of summary judgment upon an application by an ex-spouse for afinancial order in favour of herself is not just that its determination isdiscretionary but that, by virtue of section 25(1) of the 1973 Act, it is the dutyof the court in determining it to have regard to all the circumstances and, inparticular, to the eight matters set out in subsection (2). The determination ofan application by a court which has failed to have regard to them is unlawful:Livesey (formerly Jenkins) v Livesey [1985] AC 424 at p 437, Lord Brandonof Oakbrook. The meticulous duty cast upon family courts by section 25(2)is inconsistent with any summary power to determine either that an ex-wifehas no real prospect of successfully prosecuting her claim or that an exhusbandhas no real prospect of successfully defending it. Indeed, were thelatter conclusion to be appropriate, how should the court proceed to quantifythe ex-wife’s claim? For in applications for financial orders there is no suchseparation as exists in civil proceedings between issues of liability and thoseof quantum. Procedures for the court’s determination of applications forfinancial orders, which both respect its duty under section 25(2) of the 1973Act and yet cater for such applications as may be fit for an abbreviated hearing, are now well in place: see para 29 below. I suggest that Rule 4.4(1)of the family rules has to be construed without reference to real prospects ofsuccess. The three sets of facts set out in paragraph 2.1 of Practice Direction4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt itsometimes is. The touchstone is, in the words of paragraph 2.1(c) of thePractice Direction, whether the application is legally recognisable.Applications made after the applicant had remarried or after an identicalapplication had been dismissed or otherwise finally determined would beexamples of applications not legally recognisable. Since the greater includesthe lesser, it is no doubt possible to describe applications which fall foul ofRule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4of the Practice Direction remains in my view an unhelpful curiosity whichcannot override the inevitable omission from the family rules of a power togive summary judgment.

[28] Rule 1.2 of the family rules requires the court to seek to give effect to theoverriding objective when it interprets any of the rules or exercises any powerthereby given to it. Rule 1.1(1) defines the overriding objective as enablingthe court to deal with a case justly, which, by rule 1.1(2)(b) and (e), includesdealing with it in ways proportionate to the nature of the issues and allottingto it an appropriate share of the court’s resources. Such should therefore bethe court’s objective in determining whether the wife’s statement of case fallsfoul of Rule 4.4(1)(a) and/or (b) and if so whether (being perhaps onlynominally a separate question) to exercise its resultant discretion to strike itout. No one argues that the wife’s Form A and supporting affidavit representan abuse of the process of the court save in the extended sense proposed byJackson LJ; if his proposal is wrong, subparagraph (b) does not apply. In myview subparagraph (a) is equally inapplicable: for, keeping closely in mindthat it does not encompass inquiry into the existence or otherwise of a realprospect of success, one cannot say that the form and the affidavit fail todisclose either a legally recognisable application or, in any other relevantsense, reasonable grounds for bringing it.

[29] Although, however, the wife’s appeal against the strike-out should succeedand her application should proceed, it is essential at this stage to conduct aprovisional evaluation of the issues. For, by Rule 1.4(1) of the family rules,the court must further the overriding objective by actively managing cases,which, by Rule 1.4(2)(b)(i) and (c), includes promptly identifying the issues,isolating those which need full investigation and tailoring future procedureaccordingly. This exercise will dictate the nature, and in particular the length,of the substantive hearing. No doubt the High Court judge who, in the presentcase, directed, even prior to the filing of evidence on either side, that thewife’s application should be fixed to be heard for three days was seeking tohelp the parties to procure an early fixture. But, by so doing, he was not discharging his duty under Rule 1.4. Family courts have developed specificprocedures for the determination of certain types of financial application. Theobvious example is the determination of an application on a summons to arespondent to show cause why the order should not be in the terms withwhich, prior to an attempt to resile from them, she or he had agreed eitherfollowing the separation (Dean v Dean [1978] Fam 161) or prior to themarriage (Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467).In both cases, however, the court stressed that the show-cause procedure didnot obviate the need for the court to discharge its duty under section 25 of the1973 Act, powerful though the effect of the agreement would, within thatexercise, probably prove to be. Indeed Sir James Munby, President of theFamily Division, has recently directed that a spouse attempting to reject anaward made following her or his submission to arbitration by a member ofthe Institute of Family Law Arbitrators should also be subject to the showcauseprocedure: S v S (Arbitral Award: Approval), Practice Note, [2014]EWHC 7 (Fam), [2014] 1 WLR 2299. I do not suggest that the wife’sapplication is suited to the show-cause procedure but, in the light of theanalysis of the issues to which I now turn, it may well be suited to tightdirections pursuant to Rule 1.4.

Analysis of the issues

[30] The wife’s application faces formidable difficulties.

(a) The marital cohabitation subsisted for scarcely more than two years.

(b) It broke down 31 years ago.

(c) The standard of living enjoyed by the parties prior to the breakdowncould not have been lower.

(d) The husband did not begin to create his current wealth until 13 yearsafter the breakdown.

(e) The wife has made no contribution, direct or indirect, to its creation.

[31] Furthermore, (f), the wife’s delay in bringing the application appears to beinordinate. She can explain the first 13 years of it: there was no point inpressing financial applications against the husband while he had no money.But what about the delay for the 14 years from say 1997 until 2011, when her application was issued? She says that, for the first several of those years, shedid not realise that the husband was becoming wealthy and that, for example,his continued failure to maintain Dane led her to assume that there was nosignificant change in his financial circumstances. But that point takes the wifeto no further than 2001 when, on becoming an adult, Dane went to live withthe husband. She points to the legacy of discouragement from seekingfinancial provision from the husband which arose from the justices’ nominalorder in 1992, from the agency’s nil assessment in 1997 and fromunproductive consultations with local solicitors in 1994 and 1996. But thereis no explanation for much of the more recent delay.

[32] Consistently with the potentially life-long obligations which attend amarriage, there is no time-limit for seeking orders for financial provision orproperty adjustment for the benefit of a spouse following divorce. Sections23(1) and 24(1) of the 1973 Act provide that such orders may be made ongranting a decree of divorce “or at any time thereafter”. Yet there is aprominent strain of public policy hostile to forensic delay. The court will lookcritically at explanations for it; and, even irrespective of its effect upon therespondent, will be likely, by reason of it and subject to the potency of otherfactors, to reduce or even to eliminate its provision for the applicant.Nevertheless it remains important to address its effect upon the respondent.In some cases, albeit not in the present, a respondent can show that he hasassumed financial obligations or otherwise arranged his financial affairs inthe belief that the applicant would make no claim against him and that he hasdone so in a way which, even if it were possible, it would not be reasonablefor him to put into reverse. Sometimes, instead, he can point to factual issuesof which the dimming of memories or the disappearance of witnesses overthe period of the delay no longer permits accurate determination. But, werethis wife’s application to proceed to substantive determination, the need forresolution of factual issues would be slight. All that is said on behalf of thehusband in the present case is that the delay has deprived him of the chanceof establishing that, around 1992, the wife’s financial applications weredismissed; but, as already indicated, a dismissal is so unlikely that it shouldbe entirely discounted.

[33] Confronted by the difficulties identified at (a) to (f) in paras 30 and 31 above,what might the wife assert so as to carry her application forward to possiblesuccess? It is, standing alone, insufficient that the husband is now so wealthythat (as has readily been agreed) he can meet whatever award, if any, mightreasonably be made in her favour and there is no need for any exploration ofhis financial circumstances. But the wife asserts needs, both for a better homefor herself and her family and, in the light of the severe limitations on herearning capacity, for a fund out of which to maintain herself for the rest ofher life. These, with questionable forensic wisdom, she quantifies at £0.55m for the home and £1.35m for the fund, and thus at a total of £1.9m. Even atthis stage one can say that, in the light of the negatives, an award approachingthat size is out of the question. It is a dangerous fallacy, albeit currentlypropounded by those who favour reform along the lines of the Divorce(Financial Provision) Bill currently before the House of Lords, that thecurrent law always requires rich men to meet the reasonable needs of theirex-wives. As Thorpe LJ said in North v North [2007] EWCA Civ 760, [2008]1 FLR 158, at para 32, “… it does not follow that the respondent is inevitablyresponsible financially for any established needs… [h]e is not an insureragainst all hazards…” In order to sustain a case of need, at any rate if madeafter many years of separation, a wife must show not only that the need existsbut that it has been generated by her relationship with her husband: see Millerv Miller, McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, para138 (Lady Hale). Apparently the wife aspires to argue that, but for thethwarting of her attempts in 1981, 1982 and 1988 to secure a degree andthereby to raise her earning capacity, her needs would not have reached theircurrent level. In this regard she would also argue that her responsibility forthe care for Dane and Emily over the years has inhibited her establishment ofa higher earning capacity; but the husband would counter by reference to herresponsibility for the care of her two younger children and to her poor healthover the years. It is not at this stage clear to me that the wife will be able tosustain her claim on the basis of need.

[34] But the wife has a point which may prove to be much more powerful. Thedeputy judge addressed it in detail but unfortunately the Court of Appealomitted to refer to it. In the discharge of its duty under section 25 of the 1973Act the court will be required, by subsection (2)(f), to have regard to “thecontributions which each of the parties has made … to the welfare of thefamily, including any contribution by looking after the home or caring for thefamily”. Such contributions are not limited to those made prior to theseparation or even during the marriage. The wife strongly relies on

(a) her care of Dane from 1985 to 2001;

(b) her care of Emily from 1984 to 1994, from 1995 to her becoming anadult in 1997, and perhaps in the light of her difficulties eventhereafter;

(c) the absence of any significant financial or other contribution on thepart of the husband to their care during those years; and

(d) the conditions of poverty in which she was constrained to provide suchcare to Dane and Emily during those years.

The wife suggests that it is no answer to this part of her case for the husbandto point to his inability to make significant payments for the children for mostof those years, as recognised by the justices in 1992 and by the agency in1997. The husband (so she contends) mischaracterises her case as one inwhich she seeks either to investigate the amount of child support that heshould have paid during those years or indirectly to appeal against, forexample, the determination of the agency in 1997. Her case is no more thanthat, for whatever reason, the heavy burden fell upon her and, in effect, uponher alone.

[35] In Pearce v Pearce (1980) 1 FLR 261 the parties separated in 1969 and fornine years the wife cared single-handedly for the three children. Until 1977the husband was an undischarged bankrupt and made no financialcontribution to the running of the wife’s household, which was sustained bystate benefits. In 1978 the husband inherited from his father a house worth£19,000 and liquid capital of £15,000. The wife then applied for an order fora lump sum. The Court of Appeal upheld an award to her of a lump sum of£12,000. Ormrod LJ, with whom Orr LJ agreed, said, at p 264, that courtswould not encourage applications long after the divorce but that the justiceof the case might require an award notwithstanding a lapse of time. Hecontinued:

“One has here a husband who has never paid a penny piece forthe maintenance of his former wife or his three children since,at the latest, 1969 and it means that the wife has lived in greatdifficulty on social security with all the responsibilities forbringing up these three girls unaided, all that length of time, sothat on the merits, in my judgment, she has a strong case. Herclaim on the merits certainly goes a long way to eliminating thecontrary factor, the lapse of time.”

Ormrod LJ added, at p 266:

“The husband has never attempted to discharge his obligationsin relation to these three children. The whole responsibility hasbeen placed on the wife, whose life must have been made verydifficult all these years. Is there any reason whatever why, nowthat the husband has come into a certain amount of money, she and the children should not have the opportunity of benefitingto some extent from it?”

Finally Ormrod LJ held, at p 267, that, in the light of his lack of contributionto the wife’s household, the fact that the husband’s capital had come to himby inheritance long after the separation was no ground for exempting it frompartial redistribution to the wife and that the award gave her “an opportunityof perhaps living in something a little bit better than the poverty which shehas been living in all these years”. For another example of a short marriage,a substantial contribution on the part of the wife in caring for the children, a30-year delay in her bringing her application (following an overseas divorce)and a significant capital award, see M v L (Financial Relief After OverseasDivorce) [2003] EWHC 328 (Fam), [2003] 2 FLR 425.

[36] In my view this court should direct the swift referral of the wife’s applicationto a Financial Dispute Resolution (“FDR”) appointment before a judge of theFamily Division, who, in the absence of settlement, will indorse or imposethe time estimate of the substantive hearing and, in accordance with Rule9.17(9)(b) of the family rules, will direct the fixing of dates for it.Subsequently, at the Pre-Trial Review, the allocated trial judge will decide“which issues need full investigation and hearing” for the purposes of Rule1.4(2)(c)(i) and, in the light of his decision, will insert the time for crossexaminationof each party (to be measured, surely, in hours rather than days)into the template prepared in accordance with the Statement on the EfficientConduct of Financial Remedy Final Hearings issued, in relation to the HighCourt, by Mostyn J, with the authority of the President, on 5 June 2014. Itmay however be helpful to suggest that the major issues requiring limitedinvestigation by way of oral evidence seem at this stage to be the wife’s delayon the one hand and the disparate contributions to the care of the children onthe other. These are, to my mind, the two magnetic factors. They pull inopposite directions and the question may ultimately prove to be whether, inthe light also of the five difficulties identified in para 30 above, the wife’sdelay is so potent a factor as not just to reduce but even to eliminate whatmight otherwise have been awarded to her by reference to contributions andpossibly also to needs. Had it been relevant, as Jackson LJ considered, to askwhether the wife’s application had a real prospect of success, my opinionwould have been that it had a real prospect of comparatively modest success,perhaps of an order which would enable her, like the wife in the Pearce caseabove, to purchase a somewhat more comfortable, and mortgage-free, homefor herself and her remaining dependants.

The costs allowance order

[37] If, as the Court of Appeal held, the wife’s application should be struck out, itfollowed, subject to consequential issues about whether to make a repaymentorder, that the husband’s appeal against the costs allowance order should beallowed. But the husband had argued to the Court of Appeal, and, albeitfaintly, continues to argue before this court that, even were her applicationnot to be struck out, the deputy judge should not have made that order.

[38] The court now has a statutory jurisdiction to order a party to an applicationfor financial orders in divorce proceedings to make payments to enable theother to pay for legal services for the purposes of pursuing or defending it. Itis set out in section 22ZA of the 1973 Act, inserted by section 49(2) of theLegal Aid, Sentencing and Punishment of Offenders Act 2012, and it cameinto force on 1 April 2013. Such provision no longer has to be cast in theform of maintenance pending suit or interim periodical payments. It is a freestandingjurisdiction under which the court can order payment of a capitalsum albeit, if it so directs, to be made by instalments. Under subsection (3)of section 22ZA the court cannot make an order unless satisfied thatotherwise the applicant for it would not reasonably be able to obtainappropriate legal services and, under subsection (4), that in particular she (orhe) is not reasonably able to secure a loan to pay for the services and isunlikely to be able to obtain them by granting a charge over any assetsrecovered as a result of the application.

[39] But the deputy judge made his order prior to 1 April 2013. So he wasexercising the jurisdiction which was first recognised by Holman J in A v A(Maintenance Pending Suit: Payment of Legal Fees) [2001] 1 WLR 605 andthe existence of which was indorsed by the Court of Appeal in the Curreycase cited at para 2 above. There I said, at para 20:

“In my view the initial, overarching inquiry is into whether theapplicant for a costs allowance can demonstrate that she cannotreasonably procure legal advice and representation by anyother means. Thus, to the extent that she has assets, theapplicant has to demonstrate that they cannot reasonably bedeployed, whether directly or as the means of raising a loan, infunding legal services. Furthermore … she has also todemonstrate that she cannot reasonably procure legal servicesby the offer of a charge upon ultimate capital recovery.”

So there is a close parallel between the criteria articulated in the Currey caseand those set out in section 22ZA (3) and (4) of the 1973 Act.

[40] The evidence accepted by the deputy judge was that the wife’s solicitors hadagreed to extend credit to her for services rendered to her until hisdetermination of her application for a costs allowance order but that, were theapplication to fail, the partners of the firm would meet in order to determinewhether, and if so on what basis, they could continue to act for her. Accordingto the husband, this evidence should have led the deputy judge to decline tobe satisfied that the solicitors would not continue to act for her until thedetermination of her application, at any rate in the event that she were toexecute a charge in their favour upon whatever she might recover of the sortheld to be lawful in Sears Tooth (A Firm) v Payne Hicks Beach (A Firm)[1997] 2 FLR 116. I disagree. In circumstances in which the wife alreadyowed the solicitors about £88,000 for their work done on her behalf on anapplication in which her ultimate recovery from the husband was likely to becomparatively modest and conceivably even non-existent, it wasunreasonable to consider that they would, still less should, continue to act forher on that basis against an evidently litigious husband who was causingsubstantial escalation of the interlocutory costs in a manner which clearlycaused him no difficulty.

[41] So the deputy judge’s costs allowance order should be restored and the Courtof Appeal’s repayment order set aside. The court has received energeticargument about the repayment order. It was for repayment of such sum asexceeded the wife’s liability to her solicitors on 17 January 2013, being thedate when the husband filed his notice of appeal and therefore when, in theopinion of the Court of Appeal, her solicitors should have appreciated thevulnerability of their security under the order. The wife’s liability to hersolicitors on that date was in the sum of £88,323 so the effect of the orderwas for repayment of £36,677. The four instalments totalling £125,000 paidby the husband between January and April 2013 had been paid into the clientaccount of the wife’s solicitors and, by the date of the hearing in the Court ofAppeal had, save for £2539, been released into their office account againstinvoices delivered to the wife both for £88,323 and for the work morerecently done on her behalf referable to the husband’s appeal.

[42] It may be helpful briefly to notice the wife’s argument that, even had theCourt of Appeal been correct to have concluded that the costs allowanceorder should not have been made, it was not open to it to direct repayment ofany part of the £125,000 other than £2539. The argument is that the wifecould not be ordered to make repayment because she had never received anypart of the sum paid; that, while it remained in their client account, the wife’ssolicitors held it for the benefit not of her but of the husband (hence his entitlement to repayment of £2539); and that, when the balance of the fundwas released in stages into their office account, it became the property of thesolicitors. In support of this argument the wife cites Twinsectra Ltd v Yardley[2002] UKHL 12, [2002] 2 AC 164, in which the House of Lords held that asolicitor for a borrower might hold borrowed money in trust not for theborrower but for the lender subject to the solicitor’s power to apply it by wayof loan to the borrower for such purposes as had, to his knowledge, beenagreed with the lender. I cannot accept this analysis of the costs allowanceorder. It provided for the husband to make interim periodical payments to thewife and indeed to make them directly to her solicitors or, in other words, viathem. Had he not duly paid under the order, it would have been for her toenforce it. When the instalments were paid into their client account, thesolicitors therefore held them for her benefit albeit subject to the terms of theorder. If an order for payment made in respect of legal services under section22ZA of the 1973 Act or made under the preceding jurisdiction recognisedin the Currey case has been wrongly made, the appellate court must at leasthave jurisdiction to order that sums paid under it should be repaid; otherwisesuch orders would, to the extent implemented, in practice be unappealable.But, as by its order for only partial repayment the Court of Appeal recognised,an appellate court has a discretion whether to exercise its jurisdiction to orderrepayment in the wake of a successful appeal. Where the payments have beenapplied to the purchase of legal services in accordance with the order, thecourt should in that regard carefully consider all the circumstances, includingwhether the payer, say a husband, should have applied for a stay of the orderand whether, in the light of his circumstances and the wife’s ability to makerepayment to him, it is reasonable to exercise the discretion to orderrepayment whether unconditionally or subject to a prohibition againstenforcement against her without further leave. The exercise should certainlynot be equated with that of determining the incidence of costs at theconclusion of an appeal.
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