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Court of Appeal applies Wyatt v Vince in 'delay' case

Husband’s claim that court had paid insufficient regard to wife's delay rejected

The Court of Appeal has dismissed an appeal by a husband in which he claimed, amongst other matters, that the trial judge had failed to have sufficient regard to the wife's delay in bringing the claim and the lack of any cogent explanation for the same.

In Briers v Briers [2017] EWCA Civ 15 the parties married in 1984 and separated in 2002. Decree absolute was pronounced in 2005. There were no orders made concluding the parties' financial affairs. In 2013, the wife issued her Form A applying for a financial remedy order. The husband sought to rely on an agreement which he alleged was reached in 2005, following a joint meeting with a solicitor.

On 6 May 2015, HHJ Rogers found that there had not been a previous full and final settlement and that there was no 2005 agreement.

The husband's appeal turned principally on two issues: a factual determination as to a 2005 agreement, and delay.

Ryder LJ's judgment reiterates that, in a delay case, it is "beyond argument that the significant delay in making the claim is one of the major factors in play in the subsequent assessment by the court" [19] and considers Wyatt v Vince [2015] UKSC 14. The exercise to be conducted by the court is an inquisitorial exercise using judgement: "[d]elay, its explanation and effect, is an additional factor" [22].

The Court of Appeal held that HHJ Rogers had addressed the Supreme Court judgment in Wyatt v Vince, including citing the critical passage at [62]: the fact that public policy is hostile to forensic delay, the effect on the financial affairs of the other party, prejudice to the other party, and the explanation for the delay, among other factors, may "reduce or eliminate its provision for the applicant".

The Court of Appeal approved the judge's approach and his treatment of delay – in a case where needs were conceded to be provided for, HHJ Rogers discounted the wife's share in an equality of division of the assets because of her responsibility for delay (the wife received 27-30% of the overall assets).

Tthe appeal was dismissed.

For the judgment, together with the summary by Lucia Crimp of 1 King's Bench Walk which addresses the other issues raised in the appeal, click here.