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Vince v Wyatt [2013] EWCA Civ 495

Husband’s appeal against refusal of his application to strike out ex-wife’s financial remedies claim which had been made over 18 years after decree absolute

The parties married in 1981 and separated in 1984. The parties had one child, born in 1981, and had also treated the wife's child from an earlier relationship, born in 1979, as a child of the family. During the relationship the parties "chose the New Age or Traveller creed and lifestyle" and had no assets of significance.

At "some stage" in the early 1990s there were both divorce and Children Act proceedings in the County Court. The only surviving document from those proceedings was the decree absolute of divorce, made on 26th October 1992. The husband claimed that the wife made an application for ancillary relief which was dismissed, but there was no evidence of this.

The wife entered into a new relationship in 1995 and had two further children by her new partner. In 1995 the husband began a wind power business which became very successful and grew into a company worth "many millions". The husband remarried in 2006 and had a four year old son with his new wife.

The wife then applied, on 19th May 2011, for financial remedies from the husband. She sought an 'A v A' order for a costs allowance of £125,000 to finance her claim.

The husband sought the strike out of the wife's financial remedy application under FPR 2010 r 4.4(1). At first instance the strike out application was dismissed and the judge granted the wife's application for a costs allowance from the husband. The husband appealed to the Court of Appeal.

Held, allowing the husband's appeal:

1. Per Thorpe LJ:

A. Rule 4.4 was complementary to the court's inherent powers of case management. The court should have regard to all relevant considerations within the history and exercise case management powers. This did not just include the prejudice caused to the husband by delay, but also the use of the resources of the court. It was part of the case management function to eradicate hopeless claims.

B. The facts of this case were extreme. The wife had lived an impecunious lifestyle throughout her life with both of the men with whom she had entered into family life. Under those circumstances she could not look to the husband to be her insurer against life's eventualities.

C. Although it fell away as a result of the allowing of the appeal on strike out, Thorpe LJ would also have allowed the appeal against the 'A v A' order. This was not a conventional case of a wife faced with an affluent husband with whom she could not gain equality of arms. The judge should have addressed all the factors which bore on his discretionary decision. In this case, given how fraught with difficulty the wife's case was, the husband would have faced the prospect of having her application dismissed in circumstances where he would both be unable to recover his own costs from her, but also having paid her costs.

2. Per Jackson LJ, agreeing with Thorpe LJ:

A. There are close similarities between the wording of the FPR and the CPR in relation to strike out applications. The interpretation of

B. CPR r 24.2 provides for the court to give summary judgment when a claim (or defence) has no real prospect of success (or successfully defending the claim). It was "odd" that there is no provision for applications for summary judgment in the FPRs. In civil proceedings it is common for an application for the striking out of a statement of case to be accompanied by an application for summary judgment. However, the lack of provision for summary judgment did not mean that the court had to allow a claim with no prospects of success to proceed to trial. The wording of FPR r 4.4(1)(b) is identical to CPR r 3.4(2) and should be interpreted and operated in essentially the same way.

C. Although there was no limitation period in respect of applications for financial remedies following divorce, the court should not allow either party to a former marriage to be harassed by claims for financial relief which are both issued many years after the divorce and have no real prospect of success. This was a classic example of such a case.

D. Parties should not, however, make applications to strike out merely on the grounds that the other side's case was weak or unlikely to succeed. Applications for strike out under FPR r 4.4(1)(b) would only succeed in rare and exceptional cases.

Appeal allowed.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers

____________________________


Neutral Citation Number: [2013] EWCA Civ 495
Case No: 2013/0130

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR NICHOLAS FRANCIS QC
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
08/05/2013

B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE JACKSON

and
LORD JUSTICE TOMLINSON
____________________

Between:

Dale Vince Appellant

- and -

Kathleen Julie Wyatt Respondent
____________________

Martin Pointer QC, Geoffrey Kingscote and Simon Webster (instructed by Schillings) for the Appellant
Philip Cayford QC
(instructed by Mishcon De Reya) for the Respondent

Hearing dates: 11th April 2013
____________________

HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©

Lord Justice Thorpe:
Introduction
1.    Only for convenience will I refer to the parties to this appeal as husband and wife, for their marriage in 1981 lasted only some three years. Thus it is almost thirty years since they separated and it is nineteen years since they were divorced.

2.    The husband appeals the outcome of the hearing before Mr Nicholas Francis QC sitting as a deputy judge of the Family Division on the 13th and 14th November 2012. His reserved judgment of the 14th December 2012 dismissed the husband's application to strike out the wife's claim for financial remedy and granted the wife's application for an A v A order to finance the claim in the sum of £125,000. The husband's notice of Appeal was filed on the 17th January 2013 and on the 25th February I granted permission to appeal.

3.    The issues raised by the cross applications both in the court below and this court turn very largely on the extraordinary history which I will endeavour to summarise.

The history
4.    The parties met as under-graduates. On 18th December 1981 they married when the husband was 20 and the wife was 22. They were, or had been polytechnic students and both chose the New Age or Traveller creed and lifestyle. At marriage they had neither assets nor income. The wife gave birth to their only child, Dane, on the 2nd May 1981. However, she had given birth to a daughter, Emily on the 22nd January 1979, the product of an earlier relationship. Emily was accepted by the husband as a child of the family, with Dane's arrival a family of four.

5.    The date of the separation cannot be clearly established but it was probably in 1984. The wife moved to Lowestoft where she survived on state benefits. The husband housed himself in Bath in an old ambulance. Neither was working in any conventional sense. As at marriage they had neither assets nor income.

6.    In 1986 the husband found another partner, Karen Lane with whom he thereafter co-habited for a number of years. A son was born into this new family in 1988.

7.    The wife nevertheless asserts that she resumed a relationship with the husband in 1989, an assertion that the husband disputes.

8.    By the early 1990s the wife was working in Sunderland as a carer in a refuge. At some stage the husband commenced proceedings in the Sunderland Family Proceedings Court seeking a residence order in relation to the children. The proceedings appear not to have been particularly contentious and preceded the wife's petition for divorce in the Sunderland County Court.

9.    Thanks to a statutory requirement the decree absolute which she obtained survives and is dated 26th October 1992 and itself records that the decree nisi had been pronounced on 10th August 1992.

10.    This single sheet is all that survives from the divorce proceedings in which both husband and wife were represented by solicitors. Neither has retained any documents from their divorce and the solicitors' files have long since been shredded.

11.    Shortly after the divorce the wife moved to the Forest of Dean and it seems that the file in the Sunderland County Court proceedings was transferred to the Gloucester County Court but no court file survives.

12.    It is therefore impossible now to establish whether the wife applied for ancillary relief in her petition. I would assume that she did because that was and is standard practice. Given that neither had assets or income it is obvious that no substantive order was made in her favour. The likelihood is that no order was sought or made. It is possible that there was a nominal order for periodical payments. It is equally possible that her ancillary relief claims were dismissed by consent.

13.    In 1993 the wife found a new partner in Mr Gary Coventry. The first child was born to their union in 1993 and a second child in 1996.

14.    In about 1995 the husband launched himself as a business man with the aid of Karen Raine. He had made out of retrieved and recycled materials a small wind turbine to generate electricity for his caravan. From that small seed has grown a hugely successful business in the wind industry. His company, Ecotricity, is now worth many millions.

15.    That may have prompted the wife to apply to the Child Support Agency for child support for the children. Her application was dated 24th March 1997. There was a review in 1998. The husband's business being then fledgling, it resulted in a nil assessment following a review of his circumstances.

16.    The application was probably made on advice since the wife consulted a solicitor, Mr Burns, in 1992. She consulted a solicitor, Mr Warry, in 1984 and then another, Mr Curtis in 1996. A fourth solicitor, unidentified, was consulted in 2002.

17.    Surprisingly, the wife made a second application to the Child Support Agency in 2001. For by then Emily was 22 years of age and Dane 18. That probably explains why the application was withdrawn.

18.    After completing his education Dane went to live with the husband. He has made his career in the husband's business.

19.    In 2006 the husband married his present wife and they have a four year old son.

20.    In December 2010 the wife instructed Mishcon de Reya. On the 19th May 2011 they issued an application for financial remedy on her behalf. It was issued in the Gloucester County Court but was transferred to the Principal Registry and then elevated to the Family Division by Moor J on the 30 April 2012. General directions were given by Baker J on 17 July and the husband's strike out application was issued only a few days before the hearing of the fixture on 13th November.

The hearing below
21.    The husband was represented by Mr Harrison Q.C. and the wife by Mr Cayford Q.C. Mr Harrison sought to strike out the wife's claim in reliance upon a provision of relative novelty namely rule 4.4 of the Family Procedure Rules 2010.

22.    Rule 4.4 (1) is in the following terms:-

"4.4. - (1) Except in proceedings to which Parts 12 to 14 apply, the court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;

(c) that there has been a failure to comply with a rule, practice direction or court order; or

(d) in relation to applications for matrimonial and civil partnership orders and answers to such applications, that the parties to the proceedings consent. "

23.    Mr Harrison's primary reliance was on rule 4.4 (1) (b). His reliance on Rule 4.4 (1) (a) was secondary. It seems that Mr Harrison and the judge proceeded on the basis that Rule 4.4 (1) (a) was there to catch cases which failed for want of jurisdiction whereas Rule 4.4 (1) (b) better fitted Mr Harrison's fundamental attack, which rested upon the wife's inordinate delay and the prejudice to the husband that would arise were the case permitted to go to trial.

24.    Accordingly, the judge addressed Mr Harrison's case in paragraph 23 – 26 of the judgment as follows:-

"23. Mr Harrison, on behalf of the husband, relies both on Rule 4.4 (a) and on Rule 4.4 (b). Mr Harrison's objections are rooted in the concept of delay and prejudice. He has referred to me to certain dicta of Mr Nicholas Mostyn QC sitting as a deputy High Court judge (as he then was) in the case of Rossi v Rossi [2007] 1 FLR 790, where he said:

"While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary relief cases, I would have thought, generally speaking, that it would be very difficult for a party to be allowed successfully to prosecute an ancillary relief claim initiated more than 6 years after the date of the petition for divorce, unless there was a very good reason for the delay"

In particular, in the context of delay, Mr Harrison makes the valid points that:

i) all court files have been destroyed;

ii) no solicitor previously involved in this case has been able to produce any relevant documents or give any helpful account of what happened;

iii) Crucially, the husband is prevented, by the absence of evidence, from establishing that (a) a claim for ancillary relief was ever made and (b), if it was made, that it was dismissed. This, he says, leads to inordinate prejudice to the husband and it is unfair to the husband to permit the case to proceed, given the extent and depth of that prejudice. He says that it would be wrong to deal with an issue as fundamental as jurisdiction on the basis of the parties' recollections as to events that occurred 20 years ago, when the wife's delay has prevented these matters from being properly and conclusively investigated;

iv) This was a short marriage, where the parties separated almost three decades ago, and if a valid claim had been made at the time it would have been dismissed.

24. This, in turn, leads to an interesting and difficult issue as to the person on whom the burden of proof lies to establish that a valid claim exists. If I go back to first principles, it is clear to me that, if there is no evidence either way, then the person on whom the burden of proof lies will fail to discharge that burden. In the instant case, it is clear that the wife was able to bring a claim and that the court would have had jurisdiction to determine that claim (even if, at the time when it would have been brought, it would not have led to a substantive order, given the husband's resources at that time).

25. In the absence, at this stage at least, of any evidence which would enable a court to conclude that the wife's just claims were determined, or dismissed, or perhaps even never made, the husband fails to satisfy the court that the claims are dead.

26. The issue of delay falls to be discussed as highly material in respect of the strike out claim under paragraph (b), but does not of itself, in my judgment, force the court to the conclusion that the claim fails under paragraph (a). Accordingly, in my judgment the strike out under paragraph (a) must fail, and I must now turn to consider the application of paragraph (b)."

25.    Having considered these submissions concerning delay and prejudice, the judge concluded in paragraphs 33-35 of his judgment as follows:-

"33. As I have set out above, the wife's delay in bringing her claims is potentially explained and excusable. It will be a matter for the judge who hears the case, if it is to proceed, whether the wife has excused her delay. However, given the potential for excusing the delay, it would in my judgment be quite wrong for me to find, at this stage, that her delay is intentional, contumacious or inexcusable. I recognise that the delay is potentially prejudicial to the husband, and I have set this out above. There is, however, no evidence put forward on the husband's behalf to the effect that he has in some way acted to his detriment in reliance upon the fact that the wife does not have an extant claim capable of being brought to court.

34. I find that, at this stage, before any evidence has been heard, the potential for prejudice to the wife in being prevented from bringing her case is such that I cannot accede to the strike out application. There are many evidential points that the husband will take, and I have highlighted what appear to me to be the more significant ones, and it may very well be that the wife has a steep hill to climb. A steep hill is not enough in itself to justify the draconian step of striking out. If the wife is telling the truth, she took many steps to progress her claim, which the husband deftly avoided. Until the truth has been established it would in my judgment be an improper exercise of the discretion conferred upon me to strike out the wife's application and that application is therefore rejected.

35. I referred above to the decision of Mr Nicholas Mostyn QC in Rossi. I do not read the case as authority for the proposition that a delay of more than 6 years will invariably result in a strike out. Moreover, in that case the deputy judge added the words "unless there was a very good reason for the delay". Mr Cayford asserts in the instant case that there is indeed a very good reason for the delay. I have no doubt that, if the matter proceeds, that will be the subject of critical attention at the final hearing.

37. The wife's evidence in support of her costs funding application is at paragraphs 142-151 of her statement (page 35 of bundle 1). In short she says that her current solicitors (MdeR) have been prepared to act this far without funding but that they cannot take the matter to a final hearing without funding. She says that the Currey¹ test has been satisfied and that I must make an order so that she can continue with her proceedings."

The appeal
26.    Mr Pointer did not follow Mr Harrison's line. His primary reliance was upon rule 4.4 (1) (a) which he submitted was directly engaged by the many features of the history upon which he relied.

27.    He did not question the judge's approach as set out in paragraph 22 of his judgment as follows:-

"22. Mr Harrison submitted to me that this new power is intended to confer upon the court the ability to scrutinise claims at an early stage and bring them summarily to an end in appropriate circumstances. I agree with that broad submission but in the context of the passages set out above from the decision of the Supreme Court, and with regard to the following:

a) That for the purpose of applying the rule, I must assume that everything that the Claimant (here, the wife) has said in evidence is capable of being true;

b) The judicial function, at this stage, is not to test the truth of what is being put forward by the Claimant, still less is it to make findings of fact;

c) If, however, there is independent evidence which leads the court to the inevitable conclusion, at this summary stage, that a particular fact is incapable of being true, then the court is entitled to treat that fact as being false. In this respect, I am entitled to have regard to extraneous material which patently contradicts an account given by one or other party;

d) I must have regard to the prejudice caused to a party in defending a claim and to the prejudice caused to a party in being prevented from bringing the claim;

e) In striving to achieve a fair outcome I must balance those competing prejudices."

28.    He submitted that the assumption of credibility in favour of the wife was immaterial to his case, since the areas of disputed history related only to the asserted reconciliation and to asserted requests made by the wife to the husband for money. As to the first the episode preceded divorce and had to be measured in the light of the fact that the husband was then co-habiting with Karen Lane. As to the second, by that date the wife was co-habiting with Gary Coventry.

29.    Most significantly Mr Pointer did not put his case solely on the basis of nineteen years of delay and consequential prejudice. Her relationship with Gary Coventry was tantamount to marriage and during its currency a claim against the husband would have carried little credibility. At any time when her claim for financial remedy was live and should have been advanced an order would not have resulted simply because of the joint impecuniosity. That was plain from the wife's applications for financial support for the children. Whatever the husband's present fortune it was all achieved years after the breakdown of the relationship, years after the divorce and years after the breakdown of the wife's relationship with Gary Coventry. The wife had consulted no less than four different solicitors before approaching Mishcon de Reya and without raising any claim against the husband.

30.    Mr Pointer particularly criticised the judge's approach expressed in paragraph 26 of his judgment to the broad effect that a strike out under Rule 4.4 (1) (a) failed unless the husband could demonstrate that there was no remaining jurisdiction in the court. Therefore consideration of delay and prejudice only arose under Rule 4.4 (1) (b).

31.    Mr Cayford for the wife strongly supported the judge's approach and his conclusion. The wife's claim was not bound to fail. Indeed on any view she would obtain an order, the extent of which would depend on the trial judge's investigation of the disputed history. Delay might result in a reduction of her award but not in the extinction of her claim.

Conclusion
32.    I hazard that the introduction of Rule 4.4 was intended to ensure that the power to strike out in financial remedy proceedings mirrored the court's power to strike out in civil proceedings. As in civil proceedings the rule is complementary to the court's inherent powers of case management.

33.    I conclude that the judge fell into error in his construction of the Rule and approached his essential task too narrowly, partly as a consequence of the way in which the husband's application was presented. It was not apt simply to ask was the delay inordinate and, if yes was prejudice to the husband greater than the prejudice to the wife. He had to have regard to all relevant considerations within the history and exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court.

34.    It is well known that the judges of the family division are working under unremitting pressure and that waiting times for FDR appointments and trials in cases proceeding at that level are unacceptably long. Part of the case management function is to eradicate hopeless claims. Such a robust case management decision is illustrated by the case of Crossley v Crossley [2008] 1FLR 1467 where Bennett J refused to allow a wife's claim to go to trial in the face of the clear provisions of the pre-nuptial agreement.

35.    The facts of this case are extreme. Inpecuniosity has been the experience of all the wife's adult life. Both the men with whom she has entered into family life were seemingly equally impecunious. Her husband was the most improbable candidate for affluence. The wife no doubt can appeal to his sense of charity but in my judgment he is not to be compelled to boost the wife's income by the exercise of the jurisdiction under the Matrimonial Clauses Act 1973 the existence of which cannot now be plainly established and can only be presumed. He is not her insurer against life's eventualities.

The A v A order
36.    Although the husband's appeal against the A v A order falls away I wish to record that I would have allowed that appeal had his primary appeal failed.

37.    The judge dealt with the wife's A v A application carefully and at length. It was after all the only application listed until the late issue of the husband's cross application.

38.    The wife's evidence in support of her application is to be found in her first statement of 2nd October 2012, particularly at paragraphs 143-145 as follows:-

"143. My solicitor has agreed that until the conclusion of any application for interim maintenance the Firm will not bill me for the work undertaken.

144. We agreed that the Firm would be entitled to recover the legal costs incurred from any lump sum that I received from Dale or through such interim maintenance as was awarded to me for my legal costs.

145. We agreed that this arrangement would be reviewed at the conclusion of my application for interim maintenance."

39.    There was no oral evidence at the trial and I believe that the judge over stated the wife's case when in paragraph 37 of his judgment he said:-

"37. The wife's evidence in support off her costs funding application is at paragraphs 142-151 of her statement (page 35 of bundle 1). In short, she says that her current solicitors (MdeR) have been prepared to act this far without funding but that they [cannot] take the matter to a final hearing without funding. She says that the Currey¹ test has been satisfied and that I must make an order so that she can continue with her proceedings."

40.    The reality was that the wife had the advantage of an agreement with Mishcon de Reya that they would act for her recovering their costs either from the ultimate court order and /or through such A v A order as she might obtain, the arrangement to be reviewed at the conclusion of the A v A application.

41.    Mr Cayford helpfully tells us that the question was raised at trial as to whether, if the A v A application failed, Mishcon de Reya would continue to look to recover future legal costs from the wife's lump sum. Mr Cayford informed the judge that the partners had not yet addressed that question and were not able to say what the outcome would be if and when it were addressed.

42.    In my judgment in deciding whether to exercise the A v A jurisdiction the judge had to have regard to all the factors that bore on his discretionary decision to allow the case to go forward. This was not a conventional case of an inpercunious wife facing an affluent husband and unable to achieve equality of arms without an A v A order. A reality that had to be faced was that at trial the husband might well defeat an application fraught with difficulty not only not recovering his own costs but also paying the costs of the unsuccessful applicant.

43.    Although the careful way in which the judge assessed the quantum of the A v A order has not been questioned by Mr Pointer I consider he is entitled to succeed on his basic submission that on the exceptional facts the A v A order should not have been made.

44.    I have had the advantage of reading the draft judgment of My Lord, Jackson LJ, in which he considers the inter-relationship between the CPR and the FPR. I respectfully concur with the views that he has expressed.

Lord Justice Jackson :
45.    I agree that this appeal should be allowed for the reasons given by Lord Justice Thorpe. I wish only to add a few comments concerning rule 4.4 of the Family Procedure Rules 2010.

46.    In this judgment I shall refer to the Family Procedure Rules 2010 as "FPR". I shall refer to the Civil Procedure 1998 (as amended) as "CPR".

47.    In relation to striking out statements of case, there are close similarities between the wording of the FPR and the CPR. It may be helpful if I set out in full the relevant provisions of both sets of rules.

48.    FPR rule 4.4 (1) provides:

"Power to strike out a statement of case

This section has no associated Explanatory Memorandum

(1) Except in proceedings to which Parts 12 to 14 apply, the court may strike out a statement of case if it appears to the court—

(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;

(c) that there has been a failure to comply with a rule, practice direction or court order; or

(d) in relation to applications for matrimonial and civil partnership orders and answers to such applications, that the parties to the proceedings consent."

49.    FPR Practice Direction 4A ("FPRPD4A") supplements FPR rule 4.4 as follows:

"1.1 Rule 4.4 enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending the application (rule 4.4 (1) (a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (rule 4.4(1)(b)). These powers may be exercised on an application by a party or on the court's own initiative.

….

2.1 The following are examples of cases where the court may conclude that an application falls within rule 4.4(1)(a) –

(a) those which set out no facts indicating what the application is about;

(b) those which are incoherent and make no sense;

(c) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent.

2.2 An application may fall within rule 4.4(1)(b) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill-founded.

2.3 An answer may fall within rule 4.4(1)(a) where it consists of a bare denial or otherwise sets out no coherent statement of facts.

2.4 A party may believe that it can be shown without the need for a hearing that an opponent's case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 4.4.

2.5 The examples set out above are intended only as illustrations."

50.    CPR rule 3.4 (2) provides:

"The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order."

51.    CPR Practice Direction 3A ("CPRPD3A") supplements CPR rule 3.4 as follows:

"1.1 Rule 1.4(2)(c) includes as an example of active case management the summary disposal of issues which do not need full investigation at trial.

1.2 The rules give the court two distinct powers which may be used to achieve this. Rule 3.4 enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (rule 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (rule 3.4(2)(b)). Rule 24.2 enables the court to give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on his claim or defence. Both those powers may be exercised on an application by a party or on the court's own initiative.

….

1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):

(1) those which set out no facts indicating what the claim is about, for example 'Money owed £5000',

(2) those which are incoherent and make no sense,

(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

1.5 A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded.

1.6 A defence may fall within rule 3.4(2)(a) where:

(1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or

(2) the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.

1.7 A party may believe he can show without a trial that an opponent's case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate."

52.    It can be seen that FPR rule 4.4 (1) and FPRPD4A copy the wording of CPR rule 3.4 (2) and CPRPD3A, so far as the subject matter allows. Such differences as exist arise from the different nature of family proceedings and civil proceedings. For example, a provision is needed to exempt litigation concerning children from the operation of FPR rule 4.4.

53.    One important difference between the FPR and the CPR is that the CPR contain rule 24.2, whereas the FPR contain no equivalent provision. CPR rule 24.2 provides:

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

(Rule 3.4 makes provision for the court to strike out(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)."

54.    In civil proceedings, it is common practice for an application under CPR rule 3.4 to be combined with an application under CPR rule 24.2. In Swain v Hillman [2001] 1 All ER 91 at 92 Lord Woolf MR explained the relationship between the two rules as follows:

"Clearly, there is a relationship between rule 3.4 and Part 24.2. However, the power of the court under Part 24, the grounds are set out in 24.2, are wider than those contained in rule 3.4. The reason for the contrast in language between rule 3.4 and rule 24.2 is because under rule 3.4, unlike rule 24.2, the court generally is only concerned with the statement of case which it is alleged discloses no reasonable grounds for bringing or defending the claim.

Under Part 24.2, the court now has a very salutary power, both to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words "no real prospect of succeeding" do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or, as Mr Bidder submits, they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success."

55.    CPRPD3.4A deals with the relationship between CPR rules 3.4 and 24.2 in paragraphs 1.2 and 1.7.

56.    It is perhaps unfortunate that the FPR contains no rule which is equivalent to CPR rule 24.2. This omission prompts the following question. Does the omission really mean that in proceedings for financial relief the court must allow a claim which has no real prospect of success to proceed to trial? Such a result would be very odd indeed and completely out of keeping with the modern approach to litigation. I find it hard to believe that this was the intention of the rule-makers.

57.    We no longer live in an age (if we ever did) in which costs can be blithely ignored. The trial of a claim for financial provision may occupy many days of court time. The costs of such proceedings may run into hundreds of thousands of pounds, as in this case. Indeed they often run into millions of pounds. If the claim has no real prospect of success, I find it hard to believe that the court has no power to such stop such proceedings in their tracks.

58.    In my view, the solution to this problem lies in FPR rule 4.4 (1) (b). The wording of this rule is identical to the wording of CPR rule 3.4 (2). The interpretation and operation of these two rules should be essentially the same, subject to such variance as arises because the one rule deals with family litigation and the other deals with civil litigation.

59.    In Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004 the Supreme Court considered the operation of CPR rule 3.4 (2) in a personal injury case where the claimant had dishonestly exaggerated the extent of his disabilities. Lord Clarke of Stone-cum-Ebony, delivering the judgment of the court, reviewed both the court's inherent jurisdiction to strike out and its power to do so under CPR rule 3.4 (2). He concluded that there was now no need to invoke the court's inherent jurisdiction. The court's power under rule 4.2 (b) to strike out proceedings which were an abuse of the court's process was unfettered. The only restriction was that contained in CPR rules 1.1 and 1.2, namely that the court must decide cases in accordance with the overriding objective. The overriding objective required the court to determine cases justly. See Lord Clarke's judgment at paragraph 41. The only gloss which I would respectfully add is this. On 1st April 2013 (nine months after the Supreme Court's judgment in Summers) CPR rule 1.1 was amended to re-define the overriding objective. This now requires the court "to deal with cases justly and at proportionate cost" (amendment underlined).

60.    Let me now turn to FPR rule 4.4 (1) (b). The court must adopt the same broad approach to the interpretation and application of that rule as it adopts in relation to CPR rule 3.4 (2) (b) in the context of civil proceedings. One significant difference between (a) claims for financial relief in family cases and (b) civil claims is this. In the family cases there is no limitation period, although in practice long delay may constitute a ground for dismissing the claim. In civil cases, on the other hand, if a claim is brought too late the statutory defence of limitation is available. In the family context, there is no statutory bar to bringing a claim for financial relief ten, twenty or even thirty years after the divorce. Nevertheless, in my view the court should not allow either party to a former marriage to be harassed by claims for financial relief which (a) are issued many years after the divorce and (b) have no real prospect of success. It must be an abuse of the court's process to bring such proceedings.

61.    The present case is a classic example of such abuse. Even assuming that the wife's evidence is accepted on all disputed issues of fact, for the reasons stated by Thorpe LJ there is no real prospect that the wife will succeed on her claim. I say this not only because of the long delay, but also because of all the other circumstances which doom the wife's application to failure. Thus, if the deputy judge's order stands, the ultimate result will be that (a) the wife recovers nothing, (b) the husband pays all the costs of both sides and (c) the husband has no prospect of recovering any of the costs which he has paid out. This is not an outcome which the court can contemplate with equanimity, however wealthy the husband may be.

62.    I should add that an application to strike out under FPR rule 4.4 (1) (b) will only succeed in rare and exceptional cases. The case before this court falls into that category. Under no circumstances should parties start making applications to strike out, merely on the grounds that the other side's case is weak or unlikely to succeed. The court will take a very dim view of any such conduct and may well order the applicant to pay the costs of the application on an indemnity basis.

Lord Justice Tomlinson
I agree with both judgments.