(Court of Appeal; Thorpe and Wall LJJ; 18 March 2008)
The husband had petitioned for divorce and initiated ancillary relief proceedings in which he sought a clean break based on equal division of the matrimonial property. The wife absolutely refused to participate in either the divorce or the ancillary proceedings. In frustration the district judge transferred all the matrimonial assets to the husband, in an attempt to force the wife to appeal and thereby involve herself in the proceedings. The district judge noted that the order was the wrong order, and in terms explained that the order was intended to provoke an application to set it aside. However, it took the wife over 6 months to make that application; at that stage, apparently having forgotten the history, and without assistance from counsel on the point, the judge dismissed the wife's application. The wife's appeal to the circuit judge was also dismissed.
The Court of Appeal granted permission to appeal, despite the barrier of Access to Justice Act 1999, s 55, because of the manifest injustice suffered by the wife. The district judge should not have made the original order; a judge was justified in taking tough measures to convey to an avoidant litigant that she must engage in the proceedings and put her case if she was not to risk an unfair outcome, however, tough measures stopped at an unless order, framed to give the applicant all that he or she sought. No circumstances justified the making of orders that were plainly wrong. The case was to be referred to a High Court judge; although the husband was entitled to closure (and had continued to offer the wife half the assets), the wife was entitled to a fair hearing of her case.