(Court of Appeal, Thorpe, Jackson, Tomlinson LJJ, 8 May 2013)
The husband and wife married in 1981 before separating 3 years later with divorce being granted in 1992. They had one child together and the wife also had a child from a previous relationship. When they married neither party had assets or income and they adopted a New Age or Traveller creed and lifestyle.
Following the separation both parties formed new relationships and had further children. The husband, with the assistance of his new partner, formed what was now a highly successful wind turbine company.
In 2010 the wife issued an application for financial remedies while the husband sought to strike out that application pursuant to r 4.4(1) of the Family Procedure Rules 2010, primarily with regard to the issue of delay. In the Family Division the judge found that the wife's delay in issuing her application was potentially explained and excusable and that in the absence of any evidence that her claim had already been determined, dismissed or never made, the husband failed to satisfy the court that the claim was dead. In addition the wife was granted an A v A order of £125,000 to finance her claim. The husband appealed.
The judge had fallen into error in his interpretation of r 4.4(1) and approached the task too narrowly. It was not apt to simply ask whether the delay was inordinate and, if yes, was the prejudice to the husband greater than the prejudice to the wife. Regard had to be paid to all relevant considerations and the judge had to exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court.
In deciding whether to grant the A v A order the judge had to have regard to all the factors that bore on the discretionary decision to allow the case to go forward. This was not a case of an impecunious wife facing an affluent husband who was unable to achieve equality of arms without such an order. The reality that had to be faced was that the husband at trial might well defeat the application and find the prospect of recovering not only his costs but also those of an unsuccessful applicant fraught with difficulty. On the exceptional facts, the A v A order should not have been made.
The rules of striking out contained in the FPR 2010 were markedly similar to those in the CPR 1998. While unfortunate that the FPR contained no equivalent provision to CPR 24.2 it would be very odd and completely out of keeping with the modern approach to litigation if the law makers had intended that in proceedings for financial relief the court must allow a claim to proceed to trial which had no prospect of success.
A significant difference between FPR 4.4(1)(b) and CPR 3.4(2)(b) was that there was no limitation period in family cases although long delay may constitute a ground for dismissing cases. While there was no statutory bar to bringing claims 10, 20 or 30 years after divorce the court should not allow parties to be harassed by claims which were issued many years after divorce and had no real prospect of success. It was an abuse of process to bring such proceedings and the present case was a classic example of that.
An application to strike out a claim under FPR 4.4(1)(b) would only succeed in rare and exceptional cases. The court would take a very dim view of parties who applied to strike out merely on the grounds that the other side's case was weak or unlikely to succeed and could order the applicant to pay costs on an indemnity basis.