Vince v Wyatt

In financial remedy proceedings, the absence of a statutory limitation period does not require a stale claim to proceed to trial. Under the Family Procedure Rules 2010, the court may strike out a claim where, having regard to the whole history and the competing prejudice, it is an abuse of process or would obstruct the just disposal of proceedings. This includes a claim issued many years after divorce which has no real prospect of success. Relevant considerations include delay, evidential prejudice, the likely outcome, costs and judicial resources. Such strike-out applications remain rare and exceptional. A funding order should likewise reflect the merits and unusual features of the case.

The parties married in 1981, separated after about three years, and were divorced in 1992. They had no assets or income during the marriage. The wife later formed another family, while the husband built a highly successful business.

In 2011, nearly 19 years after the divorce, the wife applied for financial remedy. The High Court dismissed the husband’s application to strike out the claim and granted the wife an A v A order for £125,000 to fund her legal costs. The husband appealed. The central issues were whether the claim should be struck out under rule 4.4(1) of the Family Procedure Rules 2010, and whether the costs-funding order was justified.

1. Appeal allowed. Lord Justice Thorpe held that the deputy judge had construed rule 4.4 too narrowly. The court had to consider the entire history, rather than simply asking whether delay was inordinate and whether the resulting prejudice to the husband outweighed prejudice to the wife.
2. Rule 4.4(1)(b) should be interpreted broadly, consistently in substance with rule 3.4(2)(b) of the Civil Procedure Rules 1998, subject to the differences between family and civil proceedings. The absence of a limitation period for financial relief does not prevent a claim issued many years after divorce from being an abuse of process where it has no real prospect of success.
3. The case-management function includes eliminating hopeless claims and conserving judicial resources. Relevant considerations included the extreme delay, evidential difficulties, the parties’ long-standing impecuniosity, the timing of the husband’s wealth, and the likelihood that the wife would recover nothing while the husband incurred substantial irrecoverable costs. Even assuming that the wife’s evidence was accepted, her claim had no real prospect of success.
4. Lord Justice Jackson added that the absence from the Family Procedure Rules 2010 of an equivalent to rule 24.2 of the Civil Procedure Rules 1998 did not require a hopeless claim to proceed to trial. The abuse-of-process power under rule 4.4(1)(b) supplied the necessary jurisdiction. Applications of this kind should succeed only in rare and exceptional cases.
5. As an alternative, Lord Justice Thorpe stated that he would have allowed the appeal against the £125,000 A v A order if the primary appeal had failed. The case was not a conventional application by an impecunious wife against an affluent husband: the solicitors had agreed to defer recovery of their costs, and the husband might defeat the claim while remaining liable for both sides’ costs. Lord Justice Tomlinson agreed with both judgments.

• Court of Appeal (Civil Division): The appeal was allowed. Lord Justice Thorpe additionally indicated that the appeal against the costs-funding order would have succeeded if the primary appeal had failed.
• High Court of Justice, Family Division: Mr Nicholas Francis QC, sitting as a deputy judge, dismissed the husband’s strike-out application and granted the wife an A v A order for £125,000.