Dale Vince v Kathleen Julie Wyatt

Divorce – Financial provision – Ancillary relief – Application to strike out – Abuse of process – Parties having neither assets nor income upon marrying and upon separating – Decree absolute being pronounced – Other divorce documents being lost over ensuing years – Husband launching successful business worth millions of pounds – Wife applying for ancillary relief – Husband applying to strike out application on basis of wife’s delay – Whether judge erring in dismissing application to strike out ancillary relief claim – Family Procedure Rules 2010, SI 2010/2955, r 4.4.

When the parties married in December 1981, they had neither assets nor income. They were (or had been) polytechnic students and had both chosen the New Age or Traveller creed and lifestyle. The wife had given birth to their only child, D, in May 1981. The wife already had a daughter, E, who the husband accepted into the family. In about 1984, the parties separated. As at marriage, they had neither assets nor income. In 1986, the husband found another partner, K, with whom he thereafter cohabited for a number of years. A son was born into that new family in 1988. By the early 1990s, the wife was working as a carer in a refuge. At some stage, the husband commenced proceedings seeking a residence order in relation to the children. The proceedings, which were not particularly contentious, preceded the wife’s petition for divorce. In 1992, the decree absolute was pronounced. Neither party retained any further documents from their divorce and the solicitors’ files were subsequently shredded, with the result that it was impossible to establish, at the date of the instant appeal, whether the wife had sought ancillary relief. In 1993, the wife found a new partner, G, with whom she went on to have two children. In about 1995, the husband launched a business in the wind industry. The wife applied to the Child Support Agency (‘CSA’) for child support in 1997 and there was a review in 1998. The husband’s business being then fledgling, it resulted in a nil assessment. She made a second application to the CSA in 2001, when E was 22 years old and D 18. That application was later withdrawn. In 2010, the wife instructed solicitors, who issued an application for financial remedy on her behalf. By that time, the husband’s company was worth millions of pounds. The husband subsequently applied for the proceedings to be struck out, relying upon r 4.4a of the Family Procedure Rules 2010, SI 2010/2955 (‘the FPR’), which provided: ‘(1) Except in proceedings to which Parts 12 to 14 apply, the court may strike out a statement of case if it appears to the

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a FPR 4.4(1) is set out at [48], below.

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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 …’ The judge proceeded on the basis that r 4.4(1)(a) caught cases which failed for want of jurisdiction, whereas r 4.4(1)(b) better fitted the husband’s fundamental attack, which rested upon the wife’s inordinate delay and the prejudice to the husband that would arise were the case permitted to go to trial. The judge held, inter alia, that, before any evidence had been heard, the potential for prejudice to the wife in being prevented from bringing her case was such that the strike out application had to be dismissed. The husband appealed.

Held – The introduction of r 4.4 of the FPR was intended to ensure that the power to strike out in financial remedy proceedings mirrored the court’s power to strike out in civil proceedings. As in civil proceedings, the rule was complementary to the court’s inherent powers of case management. In the instant case, the judge had fallen into error in his construction of r 4.4 and had approached his essential task too narrowly. It was not apt simply to ask was the delay inordinate and, if so, was the prejudice to the husband greater than the prejudice to the wife. The judge had to have regard to all relevant considerations within the history and exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court. Part of the case management function was to eradicate hopeless claims. Although the wife could no doubt appeal to the husband’s sense of charity, he was not to be compelled to boost the wife’s income by the exercise of the jurisdiction under the Matrimonial Causes Act 1973, the existence of which could not now be plainly established and could only be presumed; he was not her insurer against life’s eventualities (see [32]–[35], [45] and [63], below).

Per curiam. It is perhaps unfortunate that the FPR contains no rule which is equivalent to r 24.2b of the Civil Procedure Rules 1998, SI 1998/3132 (‘CPR’). The solution to this problem lies in FPR 4.4(1)(b). The wording of this rule is identical to the wording of CPR 3.4(2)(b)c . The interpretation and operation of these two rules should be essentially the same, subject to such variance as arises because the one rule deals with family litigation and the other deals with civil litigation. One significant difference between (a) claims for financial relief in family cases and (b) civil claims is that in family cases there is no limitation period, although in practice long delay may constitute a ground for dismissing the claim. In civil cases, on the other hand, if a claim is brought too late the statutory defence of limitation is available. In the family context, there is no statutory bar to bringing a claim for financial relief ten, twenty or even thirty years after the divorce. Nevertheless, the court should not allow either party to a former marriage to be harassed by claims for financial relief which (a) are issued many years

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b CPR 24.2 is set out at [53], below.

c CPR 3.4(2) is set out at [50], below.

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after the divorce and (b) have no real prospect of success. It must be an abuse of the court’s process to bring such proceedings (see [56], [58] and [60], below).

Per curiam. An application to strike out under FPR 4.4(1)(b) will only succeed in rare and exceptional cases. Under no circumstances should parties start making applications to strike out merely on the grounds that the other side’s case is weak or unlikely to succeed. The court will take a very dim view of any such conduct and may well order the applicant to pay the costs of the application on an indemnity basis (see [62], below).

Crossley v Crossley[2007] EWCA Civ 1491, [2008] 1 FCR 323, [2008]1 FLR 1467.

Currey v Currey[2006] EWCA Civ 1338, [2007] 1 FLR 946.

Rossi v Rossi[2006] EWHC 1482 (Fam), [2006] 3 FCR 271, [2007]1 FLR 790.

Summers v Fairclough Homes Ltd[2012] UKSC 26, [2012] 4 All ER 317, [2012]1 WLR 2004.

Swain v Hillman [2001] 1 All ER 91, CA.

The husband, Dale Vince, appealed (with permission granted by Thorpe LJ on 25 February 2013) against the decision of Nicholas Francis QC, sitting as a deputy judge of the Family Division on 14 December 2012, dismissing the husband’s application to strike out the claim of the wife, Kathleen Julie Wyatt, for financial remedy following their divorce, the decree absolute having been granted in 1992. The facts are set out in the judgment of Thorpe LJ.

Martin Pointer QC, Geoffrey Kingscote and Simon Webster (instructed by Schillings) for the husband.

Philip Cayford QC (instructed by Mishcon de Reya) for the wife.

8 May 2013. The following judgments were delivered.

[1] Only for convenience will I refer to the parties to this appeal as husband and wife, for their marriage in 1981 lasted only some three years. Thus it is almost 30 years since they separated and it is 19 years since they were divorced.

[2] The husband appeals the outcome of the hearing before Nicholas Francis QC sitting as a deputy judge of the Family Division on 13 and 14 November 2012. His reserved judgment of 14 December 2012 dismissed the husband’s application to strike out the wife’s claim for financial remedy and granted the wife’s application for an A v A order to finance the claim in the sum of £125,000. The husband’s notice of appeal was filed on 17 January 2013 and on 25 February I granted permission to appeal.

[3] The issues raised by the cross-applications both in the court below and this court turn very largely on the extraordinary history which I will endeavour to summarise.

[4] The parties met as undergraduates. On 18 December 1981 they married when the husband was 20 and the wife was 22. They were, or had been polytechnic students and both chose the New Age or Traveller creed and lifestyle. At marriage they had neither assets nor income. The wife gave birth to their only child, Dane, on 2 May 1981. However, she had given birth to a daughter, Emily on 22 January 1979, the product of an earlier relationship. Emily was accepted by the husband as a child of the family, with Dane’s arrival a family of four.

[5] The date of the separation cannot be clearly established but it was probably in 1984. The wife moved to Lowestoft where she survived on state benefits. The husband housed himself in Bath in an old ambulance. Neither was working in any conventional sense. As at marriage they had neither assets nor income.

[6] In 1986 the husband found another partner, Karen Lane with whom he thereafter cohabited for a number of years. A son was born into this new family in 1988.

[7] The wife nevertheless asserts that she resumed a relationship with the husband in 1989, an assertion that the husband disputes.

[8] By the early 1990s the wife was working in Sunderland as a carer in a refuge. At some stage the husband commenced proceedings in the Sunderland Family Proceedings Court seeking a residence order in relation to the children. The proceedings appear not...