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Vince v Wyatt: the FPR 2010 strikes back?

Sian Cox, barrister, Harcourt Chambers analyses the court’s power to strike out in family proceedings and considers in the light of the Court of Appeal judgment in Vince v Wyatt, the circumstances in which such applications may succeed


Sian Cox, barrister Harcourt Chambers

Background: FPR 4.4
The power to strike out a statement of case in family proceedings (except those relating to children under Parts 12 and 14) was introduced by Rule 4.4 of the Family Procedure Rules 2010. Just as the format of the FPR 2010 mirrors that of the Civil Procedure Rules, rules such as 4.4 bestowed some of the case management powers of the CPR on judges of the family courts.

Rule 4.4(1)gives the court the power to strike out a 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. "

One can see that (a) and (b) are likely to form the basis of most contentious applications. Applications under (c) are likely to be rare, as such a "failure" would have to be of an unusual degree to merit the entire application being struck out. FPR 4.4 is supplemented by Practice Direction 4A.

As Jackson LJ noted in Vince v Wyatt [2013] EWCA Civ 495, the wording of 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.

In civil proceedings, an application under CPR 3.4(2) for an application to be struck out would generally be accompanied by an application under CPR 24.2 for summary judgment, effectively providing for ultimate determination of such a claim. In contrast, the FPR does not contain a provision equivalent to CPR 24.2 allowing a party to apply for summary judgment.

However, FPR 4.4(5) provides that where the county or High Court strikes out a case considering it to be wholly without merit, the court must (a) record this fact on the order and (b) consider whether it is appropriate to make a civil restraint order ('CRO').

FPR PD3C sets out the circumstances in which a court may make a limited, extended or general CRO. A CRO will be useful in family cases with a history of protracted litigation. In particular,a CRO may require any future applications to be made to the same judge, thus reducing the chance that a future application may slip past a judge unfamiliar with the history of the case.

Therefore, the combined effect of striking out and a CRO is to provide a similar level of protection against future claims as summary judgment.

Vince v Wyatt [2013] EWCA Civ 495: The paradigm case?
The facts of Vince v Wyatt are unusual. The parties married in 1981. They had one child and treated the wife's older daughter as a child of the family. The parties separated in 1984 and divorced in 1992. Only the Decree Absolute remained from the documents generated during these proceedings. It was never established whether any claim for ancillary relief had been made or disposed of at this time. Both parties formed new relationships and had further children, with the husband eventually re-marrying.

At the time of separation and divorce, both parties were reliant on state benefits for income. They were described as following a 'New Age' lifestyle. However, in an unexpected turn of events, the Husband formed a company called Ecotricity in 1996,  which eventually came to be valued at £90m.

In May 2011 the Wife applied for a financial remedy. The matter was transferred to the High Court and in November 2012 the Husband applied to have the claim struck out. The Husband was unsuccessful and appealed to the Court of Appeal.

The Court of Appeal allowed the appeal, holding that the judge at first instance had construed FPR 4.4 too narrowly. The court had to have regard to all relevant considerations within the history and exercise case management powers not just to protect against the greater prejudice but also to husband the resources of the court [para 33].Importantly, the court held that FPR 4.4 gives the court the power to strike out cases with no real prospect of success as an abuse of process [para 60].

In his judgment, Jackson LJ made the following useful observations:

• The wording of FPR rule 4.4 (1) and FPR PD4A is the same as the wording of CPR rule 3.4 (2) and CPRPD3A [para 52];

• In Summers v Fairclough Homes Ltd [2012] UKSC 26, the Supreme Court held that the court's power to strike out under CPR4.2 was fettered only by the overriding objective;

• Although there was no limitation period for financial remedy claims, it was an abuse of process to bring such a claim many years after divorce when it had no real prospect of success [para 60];

• We no longer live in an age (if we ever did) in which costs can be blithely ignored [para57]

• [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. [para 62]

In Vince v Wyatt, the long delay in bringing the claim combined with the lack of any real prospect of success supported the husband's application to strike out the case. Both were of such an extreme nature as to make the decision to strike out straightforward. However, given the lack of any limitation period and the inherent discretion of section 25, it is important to consider where the line would be drawn in other cases.

In Rossi v Rossi [2007] 1 FLR 790, Mr Nicholas Mostyn QC (as he then was)  sitting as a deputy High Court judge, suggested that six years was the cut off point, unless there was a 'very good reason' for the delay. Six years is the statutory limitation period for a number of civil claims but otherwise there is no obvious reason why this should apply to family cases.

It is suggested that the presence of minor children or the continued co-ownership of property is likely to extend the period of 'reasonable delay'. For example, a husband might delay making any claim against the family home because he accepts that the children should remain living there until they reach their majority. A wife might see no point in making a claim against an unemployed husband but do so if he obtains employment whilst they still have minor children. An inheritance, lottery win or other windfall might mean that the needs of the parties and/or children can suddenly be met.

Another factor that may be increasingly cited as a cause for delay is the inability of a party to obtain proper legal advice. As public funding shrinks and costs allowances under the new s.22ZA MCA 1973 become harder to obtain, it is easy to foresee a rise in late and/or poorly drafted applications. The court may face an increasingly difficult task in sifting such applications to separate the meritorious from the vexatious.

In many cases, the issue of delay will be connected to whether the application has a real prospect of success. Generally speaking, a long delay would be expected to reduce the prospects of success, as the section 25 factors become less relevant. However, there will be some cases with no delay element where there is no real prospect of success for other reasons.

One possibility would be the existence of a properly constituted pre or post nuptial agreement as in Crossley v Crossley [2008] 1FLR 1467. Arguably, FPR 4.4 strengthens the hand of the party seeking to enforce the agreement at any early stage. It remains to be seen whether future pre and post-nuptial agreements are drafted with FPR 4.4 in mind, for example by including an agreed limitation period for any claims to set aside the agreement.

Another possible ground for arguing that an application has no real prospect of success is that disclosure indicates that there are no assets and that the Applicant has no real prospect of establishing that there are hidden assets.  In such circumstances, the court may be encouraged to take the view at an early stage that the application is speculative and that there are no assets with which to satisfy the applicant's claims. It is anticipated that the courts would be reluctant to strike out claims on these grounds except in very clear-cut cases.

One should be wary of setting the bar too low when determining whether there is 'no real prospect of success'. As mentioned above, Jackson LJ specifically excluded claims that were 'weak' or 'unlikely to succeed' from the jurisdiction to strike out.

Given the special nature of family cases, the courts are unlikely to apply the same strict approach as the CPR however similar the wording of the relevant provisions may be. However, it is plain from Jackson LJ's judgment in Vince v Wyatt that a direct comparison is being drawn between the CPR and FPR, including relying on CPR case law. Therefore, parties may wish to rely on the traditionally more robust approach of the civil courts until the FPR case law develops further.

Finally, one should not ignore the context in which FPR 4.4 was born. Drafted in the difficult economic circumstances of 2010, the power to strike out is coming of age in a period of unprecedented cuts to public funding. Coupled with a drive to reduce costs and delay across the board in the family cases, the courts have a powerful incentive to exercise some of their stronger case management powers.

Procedural Considerations
Any application to strike out should be made as soon as possible after proceedings are issued. Ideally, the application should be listed before or at the first appointment to prevent the parties incurring unnecessary costs. Crossley is a useful example of strong case management being upheld by the Court of Appeal.

The case to strike out must be properly pleaded, with particular attention paid to the Part(s) of FPR 4.4 that are being relied on. If in doubt, the case should be pleaded in the alternative. It is also advisable to include the application for a CRO, if sought, at this stage.

The party seeking to strike out should be careful that the court does not stray from striking out into summary judgment, for which there is no provision in the FPR. The case law suggests that the courts will shy away from endorsing a procedure that appears to amount to the same. In Crossley, the Court of Appeal emphasised that the Judge was not determining the case on a summary basis without reference to section 25.

Although Crossley was decided prior to FPR 4.4, it is suggested that the court still needs to follow the approach endorsed therein. Section 25 factors are still potentially relevant to both to the issue of delay and the prospects of success. However, the court will need to tread the line between striking out and summary determination with care.

Finally, if the application to strike out is successful, it is advisable that the reason for the decision is recorded on the court order in order to prevent future disputes.

In summary, it is suggested that the following factors are likely to support an application to strike out:

• A long delay in bringing the claim;

• The absence of a 'very good reason' for the delay;

• The absence of any minor children of the family;

• Significant post separation/divorce accrual of assets;

• A properly constituted pre or post-nuptial/separation agreement;

• Impact on third parties.

The following factors are likely to undermine a claim to strike out:

• The continued presence of minor children of the family;

• A short or no delay;

• A valid reason for delay;

• Continued co-ownership or co-mingling of assets;

• No or an improperly constituted pre or post-nuptial/separation agreement.

Parties will still be well advised to settle all financial claims at the time rather than leaving such claims dormant because even weak claims can still proceed to trial with all the subsequent costs consequences.

In conclusion, given the highly unusual facts of Vince v Wyatt, it remains to be seen whether this is the first step towards a more robust management of unmeritorious cases or whether it will become the case against which all other cases are distinguished.