Price v Price
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Underhill,Lord Justice Moses,and |
| Judgment Date | 21 May 2014 |
| Neutral Citation | [2014] EWCA Civ 655 |
| Date | 21 May 2014 |
| Docket Number | Case No: B6/2013/1642 |
| Court | Court of Appeal (Civil Division) |
[2014] EWCA Civ 655
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
HIS HONOUR JUDGE OLIVER
RG12D01819
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Lady Justice Black
and
Lord Justice Underhill
Case No: B6/2013/1642
Miss Lynsey Cade-Davies (instructed by Gordon Dadds) for the Appellant
Miss Sarah Edwards (instructed by Hadfields Butt & Bowyer) for the Respondent
Hearing dates: 29 th January 2014
On 14 November 2012, Mrs Price's divorce petition was issued. It was a behaviour petition based upon Mr Price's alleged profligacy with money. It was served on Mr Price in the normal way. Mr Price returned to the county court an acknowledgment of service form, dated 30 November 2012, in which he indicated that he intended to defend the divorce. However, no answer from him ever reached the court file or, it appears, the court building. It is common ground, therefore, that for the purposes of the rules, no answer was filed.
On 24 January 2013, Mrs Price applied for decree nisi on the basis that the petition was undefended. On 29 January 2013, the county court certified that Mrs Price was entitled to a decree and to an order that Mr Price pay her costs. The pronouncement of the decree was listed for 18 February 2013.
On 14 February 2013, Mr Price (who was acting in person) applied for that hearing to be vacated and for the certificate of 29 January 2013 to be set aside. He said in his application notice that an answer dated 12 December 2012 had been posted on 12 December 2012. In the normal course of things, that would have reached the court in time, the case would have been treated as defended, and no certificate would have been granted. As it appeared that the court did not have any record of an answer, Mr Price also applied for leave to file an answer out of time.
The papers were put before His Honour Judge Oliver who adjourned the pronouncement of decree nisi to 4 March 2013. He listed the case before a district judge on 28 February 2013 for consideration of the question of the answer and for directions.
On 28 February 2013, there was a short hearing before District Judge Burgess, at which Mr Price appeared in person. The district judge dismissed Mr Price's application and ordered Mr Price to pay Mrs Price's costs of it, summarily assessed at just over £1,500. By way of reasons, he said:
"The application is dismissed. The reason is that I am not satisfied that an answer was filed in time. The marriage has plainly irretrievably broken down."
These short reasons need to be read in the context of the exchanges that immediately preceded them in which it can be seen that Mr Price was saying that he had sent his defence to the court and the district judge responded that documents were date-stamped and logged when they were received at the court and that as there was no document on the court file and no log of it, as far as he was concerned it had not been filed.
Mr Price, still in person, appealed against the district judge's order to Judge Oliver. The pronouncement of decree nisi was stayed pending the determination of the appeal.
On 28 May 2013, Judge Oliver dismissed the appeal. He pronounced decree nisi of divorce and ordered Mr Price to pay Mrs Price's costs assessed at just over £2,500.
Mr Price then appealed to this court with permission of Lewison LJ. His objective remains to file an answer and defend the divorce proceedings. It seems that not only does he dispute much of what is set out in the petition, he also wishes to stay married and thinks that it can work.
The law
Case law
In Nash v Nash [1968] P 597, the Divisional Court considered the circumstances in which a decree nisi should be set aside to enable a spouse who had not filed an answer prior to the grant of the decree to defend the divorce. It was, of course, a decision under the old divorce law and well before the special procedure which now applies to divorces but it is the nonetheless the source of the modern approach. The court looked back over some of the previous authorities and identified three classes of case, as follows:
i) Where the applicant knew nothing about the divorce. In that case, he would get a rehearing of the suit almost automatically.
ii) Where the applicant knew all about the divorce and chose not to defend but later changed his mind. That applicant would have to convince the court that on the evidence before the court as a whole, it was more probable than not that the decree was obtained contrary to the justice of the case.
iii) Where the applicant was aware of the proceedings and anxious to defend but, through ignorance or lack of full advice, was unaware of the necessity of taking procedural steps in order to preserve his position and had no knowledge of the actual divorce hearing until after it had taken place. In this type of case, the court would not automatically or almost automatically grant a rehearing but on the other hand should not require to be satisfied that if there were a rehearing a different result would be more probable than not. It would be necessary and sufficient that the applicant satisfied the court that he had a case which he wished to put forward and which, if accepted, might well lead to a different result. The court was not bound to accept the applicant's affidavit at its face value but on the other hand should not attempt to make any such investigation of its truth as would be appropriate at the hearing of the suit.
It was the husband in Nash who was seeking a rehearing. He had signed an acknowledgment of service and his solicitor applied for legal aid so that he could defend. After a period of some weeks waiting, the wife's solicitor notified the husband's solicitor that he was applying for a registrar's certificate with a view to setting the case down. The case was heard and a decree pronounced. When the husband learned of it, he applied to have the decree set aside and a rehearing ordered so that he could defend the suit and his application was granted. The case was said to fall into the third category and the court took the view that the husband had shown that he had a case which he wanted to put before the court and which, if accepted, might well lead to a different result from the first hearing.
Our attention was invited to three cases reported at the start of the 1980s. By now, the special procedure was in existence. Day v Day (1980) 1 FLR 341 established that under the special procedure, the process of adjudication had been transferred from the judge to the registrar (as it then was) and that if the registrar had given a certificate, the certificate had to be set aside before leave could be given to file an answer out of time. It was held that the application should be dealt with on the same lines as an application for a re-hearing after decree nisi under the former procedure.
Day v Day was itself an example of the second class of case described in Nash, with the focus of the court being on whether the decree would have been obtained contrary to the justice of the case in the event that no relief was given. The husband had been served with an initial petition to which he had failed to respond with a notice of intention to defend and an answer despite having ample opportunity because, as Ormrod LJ put it, he was "hoping, like the ostrich, that if he kept his head down the threat of divorce would go away". Following the re-service of the petition thereafter, he must have understood that the wife was intent on divorce and, having filed a notice of intention to defend, had ample time to file an answer before directions were given but did not do so. In the circumstances, the court did not "think that the justice of the case requires that there should be a re-hearing or that he should now be permitted to defend the wife's suit for divorce".
I have said that Day was an example of the second class of case described in Nash because I think it is properly so characterised, given what was said about it by Cumming-Bruce LJ in Mitchell v Mitchell [1984] FLR 50 at 56. However, it was in fact to the earlier case of Owen v Owen [1964] P 277 that the court in Day went for its starting point in formulating the principles that should be applied to such a case. Ormrod LJ drew from Owen that the application should be refused unless there were " substantial grounds for the belief" that the decree was obtained contrary to the justice of the case whereas in Nash, the court had cited from Owen but then settled on the slightly different formulation that for the applicant to succeed, he had to convince the court that it was " more probable than not" that the decree was obtained contrary to justice of the case (see Sir Jocelyn Simon's agreement at page 601/602 of Nash with the obiter dictum of Davies LJ in Stevens v Stevens [1965] P 147).
Nash and Owen were both Divisional Court cases and in both Sir Jocelyn Simon P was a member of the court, although the High Court judge with whom he sat in each case was different. I have concluded that the slightly different formulation in the two cases was probably unintentional. In any event, in Day the court proceeded to develop the position, commenting that the analogy with an application for a re-hearing after decree nisi had been granted under the former procedure was not wholly accurate.
Ormrod LJ observed that in some respects a respondent is less favourably placed under the special procedure than under the previous procedure and too rigid an approach...
To continue reading
Request your trial
-
Nadeem Shahzad v Nusrat Mazher
...to enable the parties to take advantage of the new pension sharing provisions which did not apply retrospectively. In Price v Price [2015] 1 FLR 1202, the Court of Appeal (Black LJ, as she then was, giving the judgment) allowed the husband's appeal from the dismissal of his application to s......
-
鄧 對 王
...Ormrod LJ法官在該案認為，在實施特別程序之前答辯人向法庭要求批准重新聆訊的相關法律原則仍然適用︰見Day v Day第34C頁及Price v Price [2014] EWCA Civ 655, [2015] 1 FLR 1202。 33....