Wyatt v Vince

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Clarke,Lady Hale,Lord Hodge,Lord Hughes,Lord Wilson
Judgment Date11 Mar 2015
Neutral Citation[2015] UKSC 14

[2015] UKSC 14

THE SUPREME COURT

Hilary Term

On appeal from: [2013] EWCA Civ 495; [2013] EWCA Civ 934

before

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Hughes

Lord Hodge

Wyatt
(Appellant)
and
Vince
(Respondent)

Appellant

Philip Cayford QC Simon Calhaem Miriam Foster

(Instructed by Mishcon de Reya)

Respondent

Martin Pointer QC Simon Webster Rebecca Bailey-Harris

(Instructed by Schillings)

Heard on 8 and 9 December 2014

Lord Wilson

(with whom Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge agree)

INTRODUCTION
1

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

2

The circumstances of the case are highly unusual. The suit for divorce proceeded in the Sunderland County Court and, within weeks of the grant of the decree absolute on 26 October 1992, the court file was transferred to the Gloucester and Cheltenham County Court. But that court has either destroyed or mislaid the file. The current internal instruction to courts is to retain divorce 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 whole file has been mislaid. Furthermore neither party presently holds any document relating to the divorce proceedings other than the decree absolute. In 2011 the wife issued an application within the proceedings for financial orders, in particular for an order that the husband should make payment of a lump sum to her in satisfaction of all her claims. She also applied for an order that the husband should make interim periodical payments to her in sums equal to her estimated costs of the substantive application pursuant to the decision of the Court of Appeal in Currey v Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946. The husband cross-applied for an order that the wife's substantive application, which had been fixed to be heard for three days beginning on 15 April 2013, be struck out pursuant to Rule 4.4 of the Family Procedure Rules 2010, S1 2010/2955, ("the family rules"). On 14 December 2012 Mr Nicholas Francis QC, sitting as a deputy judge of the High Court, Family Division, dismissed the husband's cross-application and, on the wife's application, ordered the husband to make interim periodical payments to her, indeed "directly to [her] solicitors", at the rate of £31,250 per month for four months (ie a total of £125,000) beginning on 2 January 2013 ("the costs allowance order"). The husband appealed to the Court of Appeal 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 substantive application; and ordered that, of the £125,000 which by then the husband had paid in full, the wife should repay to him such sum as exceeded the state of her account with her solicitors on 17 January 2013, which amounted to an order for repayment of £36,677 ("the repayment order"). The court explained its striking-out order and its repayment order in judgments delivered on 8 May and 13 June 2013 respectively.

3

The wife appeals against the orders made by the Court of Appeal and thus seeks the reinstatement of the orders of the deputy judge. Her appeal raises the following questions:

  • (a) What is the extent of the jurisdiction to strike out a spouse's application 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's application did the Court of Appeal err in striking it out?

  • (c) If the answer to (b) is yes, what case management directions would be proportionate to the unusual circumstances of the wife's application?

  • (d) Irrespective of the answer to (b), did it err in setting aside the costs allowance 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 the husband accepts) should be assumed to be true for the purposes of his strikeout application, she is in poor health. She lives in a house with three or four bedrooms in Monmouth which in 2010 she purchased from the local authority on a discounted basis under the Right to Buy scheme for £60,000 by virtue of 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 the marriage by a man other than the husband. Emily's father never maintained her. Upon the marriage the husband and the wife treated her as a child of the family. Throughout her life Emily has encountered difficulties which the wife has tried to help her to surmount. Emily lives in the house in Monmouth. She has a daughter, aged four, who lives mid-week with the wife's mother and at weekends and during holidays in the house in Monmouth.

  • (b) Dane, who is aged 31. He is a child of the marriage. Thirteen years ago, when he became 18, Dane moved from the house in Monmouth in 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 were born to the wife long after her separation from the husband by a man who has never maintained them. They live with the wife in the house in Monmouth.

6

The wife subsists partly on her wages generated during periods of low-paid employment, albeit punctuated by periods of ill-health, and partly on state benefits. The three adult children resident in her household appear to make no more than modest contributions to its running expenses.

7

The husband is aged 53. He has achieved brilliant success and is clearly a remarkable man. For several years following the breakdown of the marriage he was, as I will explain, a new-age traveller, protesting loudly against nuclear weapons and, generally, in favour of green solutions to society's needs. His long-standing interest in green energy, together with his innate scientific ingenuity, led him in due course, and from the smallest beginnings, to develop the commercial supply of wind power. He is now the sole shareholder of Ecotricity Group Ltd, a company which, through others, provides green electricity to at least 70,000 homes and businesses in the UK from its fleet of turbines. The value of his company is at least £57m. He lives with his second wife, their small son and Dane in a Georgian hill fort overlooking Stroud.

THE HISTORY
8

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

9

On 18 December 1981 the parties were married. Thereafter they largely subsisted on state benefits. Late in 1982 they moved to Norfolk. By then the wife was pregnant. She says (but he does not recall) that she enrolled on a degree course at the University of East Anglia but was constrained to withdraw from it when unable to make arrangements for the care of Emily and the coming baby.

10

On 2 May 1983 Dane was born. Late in 1983 the family moved to rented accommodation in Lowestoft but early in 1984 the husband moved into a bed-sitting room elsewhere in the town. If brief subsequent reunions alleged by the wife (but denied by the husband) are ignored, their marital cohabitation then 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 eight years. In 1984 he left Lowestoft in an old ambulance which had been converted into a camper van. Although the circumstances are disputed, it seems 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 with the 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 the ambulance on a site in Bath and that in the following summer, after Dane had on any view gone back to live permanently with her, she and the children joined the husband at Stonehenge for the summer solstice. Then she moved with the children to Sunderland.

12

From 1985 to 1995 the life of the wife and children, and indeed of the husband, 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 year old fire engine which he had converted so as to burn diesel rather than petrol. He stayed there for a year.

  • (c) Following his return to England, the husband rejoined the travelling community but visited Sunderland on various occasions in order to see the children.

  • (d) In 1988 the wife moved with the children to Durham and makes an assertion (about which the husband has no recollection) that she then enrolled on a course at Durham University but had to withdraw from it for lack of his financial support of herself or the children.

  • (e) In June 1989 both the husband and the wife and children attended the Glastonbury festival. The wife introduces it as a "reconciliation" but on any view they did not resume cohabitation there.

  • (f) At around the same time, allegedly at the husband's request, the wife left Durham with the children in order to live on a local authority travellers' site in Swindon. The husband describes the site as akin to a rubbish tip. When not travelling during the summer, he had begun to live with his partner on a site in Stroud, to which the wife and...

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