Power v Vidal

The High Court has declaratory jurisdiction in family proceedings. That jurisdiction derives from the statutory preservation of the High Court’s pre-existing common-law and equitable powers, including the power to grant declarations. The absence of an equivalent provision to CPR 40.20 in the Family Procedure Rules does not remove that jurisdiction.

Where an original decree has been lost or destroyed, the court may declare the authenticity and effect of reliable documentary evidence so as to place the parties, as nearly as possible, in the position they would have occupied had the court record survived.

The petitioner sought to remarry but could not obtain an office copy or the date of his decree absolute. The original divorce file had been destroyed, the relevant records could not be located, and no entry could be found on the central index.

The respondent located and supplied a certified copy retained in Australia. The issue was whether the High Court could make a declaration as to the authenticity and effect of that document, and whether the cause should be transferred to the High Court for that purpose.

1. Declaratory jurisdiction. The High Court possessed jurisdiction to make the required declaration. Egeneonu v Egeneonu [2017] EWHC 43 (Fam) was understood as recognising that jurisdiction as inherent. Mazhar v The Lord Chancellor [2017] EWHC 2536 (Fam) and Bank Of New York Mellon, London Branch v Essar Steel India Ltd [2018] EWHC 3177 (Ch) identified its statutory source.
2. The statutory foundation was section 19(2)(a) of the Senior Courts Act 1981, which preserved the jurisdiction exercisable by the High Court immediately before the commencement of the Act. That jurisdiction included the declaratory powers of the common-law courts and the Court of Chancery. The omission of CPR 40.20 from the Family Procedure Rules did not affect the existence of the jurisdiction.
3. The cause had been transferred automatically to the Family Court under article 2 of the Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014. It was ordered to be transferred to the High Court for the declaration and immediately thereafter transferred back to the Family Court at Willesden.
4. On the evidence, the respondent’s document was an authentic and accurate copy of a certified copy of the original decree absolute. The marriage was therefore declared dissolved on 29 January 1997.
5. The judgment and order were directed to be placed on a substitute court file and retained until 1 February 2097. The decree absolute had also been recorded on the central index under rule 7.36(1) of the Family Procedure Rules.

First-instance decision. No appellate history was stated in the judgment.