MG v FG

Strike out under rule 4.4 of the Family Procedure Rules 2010 is a summary remedy for applications that are incoherent, factually baseless, legally unrecognisable or otherwise abusive. It is not a means of determining whether a discretionary financial claim has a real prospect of success. This applies to claims under Schedule 1 to the Children Act 1989. Estoppel may in principle justify strike out, but it requires a prior determination on the merits of the same issue and should be applied sparingly where children’s continuing needs are involved. A prior foreign agreement and unsuccessful related proceedings may remain highly relevant to the substantive assessment without creating an estoppel. The court refused strike out and refused legal costs funding, while directing proportionate case management.

The mother applied under section 15 and Schedule 1 to the Children Act 1989 for financial provision for the parties’ child. The father sought summary dismissal under rule 4.4 of the Family Procedure Rules 2010, relying on Australian binding financial agreements, unsuccessful Australian proceedings, an unsuccessful Part III application under the Matrimonial and Family Proceedings Act 1984, and alleged estoppel or abuse of process.

The mother also sought a legal costs funding order. The court had to determine whether the Schedule 1 application was legally recognisable and whether the previous agreements and proceedings prevented it from proceeding, and then whether costs funding should be granted.

1. Strike out. The application to strike out under rule 4.4 was dismissed. Following Wyatt v Vince [2015] UKSC 14, the court’s inquiry is confined to the limited summary grounds in rule 4.4 and Practice Direction 4A. It must not determine whether a discretionary financial claim has a real prospect of success. A claim under Schedule 1 is financial remedy proceedings to which the rule applies.
2. Estoppel. Estoppel could in principle form the basis for strike out where the application sought determination of an issue already decided on its merits. That condition was not met. The Australian proceedings concerned discrete allegations and a statutory hardship test, rather than the overall adequacy of provision under Schedule 1. The Part III proceedings stopped at the permission stage and did not determine the substantive claim on its merits. The differences in statutory purpose, procedure and available considerations therefore prevented an estoppel.
3. The doctrine should be applied sparingly in cases concerning children. The court should be slow to terminate a claim without considering its merits where changing needs may be affected. The previous litigation, the binding agreements and the mother’s failed challenges remained highly relevant to the substantive application, but did not make the claim legally unrecognisable. The court also indicated that a further award after a clean break would be exceptional in practice, while holding that even an unexceptional claim may remain outside rule 4.4.
4. Costs funding. The application for legal costs funding was dismissed. The court considered the parties’ resources, the mother’s litigation conduct, her unpaid costs liability, the existing binding agreement, the apparent weakness of the substantive claim and the likelihood that funded costs would not be recovered. The court directed concise, proportionate preparation for an FDR and declined to list the matter for final hearing at that stage.