Price v Price

An application to set aside a certificate and obtain leave to file an answer out of time is governed by an amalgam of the Family Procedure Rules 2010, rule 4.6, and the authorities developed from Nash v Nash. The court must consider all relevant circumstances and, where applicable, the Nash categories. Their language does not create rigid formulae. Where a respondent says that an answer was posted but not received, and the issue has important consequences, fairness will normally require evidence on oath or affirmation, with appropriate questioning. At the permission stage, the court should not conduct a trial of the proposed defence. Where the case is akin to the third Nash category, it is sufficient to show a case which, if accepted, might well lead to a different result. Leave may be refused where the answer is abusive or plainly doomed.

Mrs Price presented a behaviour-based divorce petition. Mr Price acknowledged service, stated that he intended to defend, and said that he posted an answer on 12 December 2012. The court received no answer. A certificate of entitlement to decree nisi was issued, and Mr Price applied to set it aside and to file an answer out of time.

A district judge dismissed the application. His Honour Judge Oliver dismissed the appeal, pronounced decree nisi and ordered costs. The Court of Appeal considered whether the lower courts had fairly determined the disputed posting issue, how rule 4.6 of the Family Procedure Rules 2010 interacted with the earlier authorities, and whether the proposed defence had been assessed prematurely.

The appeal was allowed and the application was remitted. The Court of Appeal did not itself set aside the certificate or grant leave to file the answer. The whole question was returned to the county court for reconsideration.

1. The lower courts had no sustainable basis for finding that Mr Price had not posted the answer. The absence of the document from the court file did not prove that it had never been posted. Nor did the absence of independent proof establish that his account was untruthful.
2. Where a party who is before the court asserts that an important document was posted but not received, the issue is ordinarily one of fact requiring evidence on oath or affirmation. The evidence may be tested by questions from the other party or the court. It is unsatisfactory to accept or reject the account without the normal process for resolving a disputed factual issue. Lord Justice Underhill expressly endorsed this approach.
3. Rule 4.6 of the Family Procedure Rules 2010 supplements, rather than replaces, the authorities developed from [1968] P 597. The court must consider all relevant circumstances, including the relevant listed factors, and the appropriate Nash category. The differing formulations in the authorities do not establish a rigid test.
4. On the assumption most favourable to Mr Price, the case was closest to the third Nash category, or warranted an even more benign approach because an answer had apparently been attempted but lost without fault on his part. It was enough that he had a case which, if accepted, might well lead to a different result. The court should not investigate its truth as if conducting the divorce trial.
5. The approach in [1995] 1 FLR 269 was particularly apposite. At this stage the court should not decide the merits on limited alleged admissions where the allegations required assessment in their full context. The proposed answer was not clearly abusive or so plainly doomed that leave could properly be refused.
6. Fresh metadata evidence was excluded. It would not resolve the posting issue, Mr Price had no opportunity to meet it before the appeal, and it could have been obtained earlier. The remitted hearing was to determine first whether the answer was posted and then, in light of that finding, the outcome of the application. Urgent directions were ordered, including consideration of evidence and any need for expert computer evidence.

• Court of Appeal (Civil Division): allowed the appeal and remitted the application to the county court for reconsideration.
• Reading County Court, His Honour Judge Oliver: on 28 May 2013 dismissed the appeal from the district judge, pronounced decree nisi and ordered costs.
• Reading County Court, District Judge Burgess: on 28 February 2013 dismissed the application to set aside the certificate and to file an answer out of time, with costs.