Abuchian v Maksoud

A procedural breach does not justify striking out a claim where the breach is minor and strike-out would be disproportionate or unjust. The court must exercise the discretion under the Family Procedure Rules by considering the nature and duration of the default, its effect on the proceedings, and the consequences of strike-out. Where related financial and property proceedings exist, the court may coordinate them under the overriding objective, including by bringing forward a permission hearing and fixing an accelerated timetable. Procedural efficiency must remain compatible with a full and fair opportunity to present the case.

The wife brought proceedings concerning ownership and occupation of a London flat under the Married Women’s Property Act 1882 and the Family Law Act 1996. The husband sought possession and applied to strike out those claims for alleged non-compliance with directions. The wife had filed points of claim two days late and her reply one-and-a-half days late. The husband also applied to set aside permission granted under Part III of the Matrimonial and Family Proceedings Act 1984 to seek financial relief following an overseas divorce. The wife sought to advance that application so that the related issues could be managed together.

1. The husband’s strike-out application was dismissed. Rule 4.4(1)(c) of the Family Procedure Rules 2010 conferred a discretionary power to strike out for failure to comply with a rule, practice direction or court order. The court distinguished between a breach of the order and delay arising only from inter-solicitor correspondence, which was not itself a court order.
2. Although the wife had breached the order by filing her points of claim and reply late, the aggregate delay was only three-and-a-half days. Having regard to the parties’ long marriage, their ages, the importance of the claims to the wife’s financial position, and the possibility that the claims were her only effective remedies, strike-out would be disproportionate and unjust.
3. The wife’s application to advance the hearing of the husband’s application to set aside permission under Part III of the Matrimonial and Family Proceedings Act 1984 was granted. The court applied the overriding objective by directing that the permission issue and consequential directions should be dealt with together, reducing duplication, delay and costs.
4. The final hearing was enlarged to seven days. The accelerated timetable required the wife to accept reasonable compromises in the scope of disclosure and enquiry as the price of obtaining an earlier global determination. That compromise did not remove the requirement for a full, fair and just hearing.