The introduction of rule 4.4(1) of the Family Procedure Rules 2010 is a significant development in family proceedings. Under the rule the court may strike out a statement of case if it appears to the court that:

  • it discloses no reasonable grounds for bringing or defending the application;
  • it is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;
  • there has been a failure to comply with a rule, practice direction or court order; and
  • in relation to applications for matrimonial and civil partnership orders, the parties to the proceedings consent.

Historical position

There is no statutory bar to pursuing financial claims many years after a divorce. In Hill v Hill [1997] 2 FCR 477, the Court of Appeal allowed a wife to pursue a claim for financial orders 25 years after the divorce, although in that case the circumstances were unusual, as during the intervening period the parties had resumed cohabitation. In Rossi v Rossi [2007] 12 FLR 790, Nicholas Mostyn QC (as he then was, sitting as a High Court judge) expressed the view that although there was no rigid rule, generally speaking it would be difficult for a party to be allowed to prosecute a claim more than six years after the date of the petition, unless there were very good reasons for the delay.

In S v S (ancillary relief after lengthy separation) [2007] 1 FLR 2120, Singer J commented that after years had passed, it seemed to him less and less fair that the wife should be entitled to seek a share in the value of the husband’s business. In the recent decision of T v T [2013] EWHC B3 (Fam), the parties had entered into a separation agreement with legal advice in 1991 which had not been made into a court order. In 2012 the wife brought an application for financial remedy, although that application was dismissed by Parker J as she treated the agreement of magnetic importance. The judge asked herself: had the parties reached an agreement by which they intended to resolve their matrimonial affairs, and how had they conducted themselves?

Applications to strike out

In Vince v Wyatt [2013] EWCA Civ 495, the Court of Appeal considered a very unusual set of circumstances. The parties married in 1981 and adopted what the court described as ‘the new age or traveller creed and lifestyle’. They separated in or around 1984. There were divorce proceedings in the early 1990s, but the only surviving document from those proceedings was the certificate of decree absolute dated 26 October 1992.

In the meantime, the husband became extremely successful with a wind-power business. In May 2011 the wife issued an application for financial remedy. The husband sought to strike out the application under rule 4.4(1), although his application was dismissed at first instance. He successfully appealed to the Court of Appeal.

Thorpe LJ expressed the view that rule 4.4 mirrored the court’s power to strike out in civil proceedings. The rule is complementary to the court’s inherent powers of case management. The court must have regard to all relevant considerations within the history of the case and exercise its case management powers, not just to protect against the greater prejudice to the husband, but also the resources of the court. Part of the case management function is to eradicate hopeless claims.

Jackson LJ agreed with Thorpe LJ and noted the similarity between rule 4.4(1) of the Family Procedure Rules and rule 3.4(2) of the Civil Procedure Rules. One important difference between the FPR and the CPR is, however, the court’s power to give summary judgment under CPR 24.2. Jackson LJ considered whether the omission of an equivalent rule in the Family Procedure Rules meant that the court must allow claims which have no real prospect of success. His view was that such a result would be very odd indeed and out of keeping with the modern approach to litigation. If a claim really has no prospect of success, Jackson LJ found it hard to believe that the court had no power to stop such proceedings in their tracks.

Jackson LJ also noted that a significant difference between financial claims within family cases and civil claims was that in the former there is no limitation period. In the family context, there is no statutory bar to bringing a claim for financial relief 10, 20 or even 30 years after the divorce. Nevertheless, Jackson LJ was of the view that 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) had no real prospect of success. He felt that it would be an abuse of the court’s process to bring such proceedings.

Jackson LJ did however emphasise that an application to strike out under rule 4.4(1)(b) will only succeed in rare and exceptional cases. Under no circumstances should parties be 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 dim view of any such conduct and may well order the applicant to pay the costs of the application on an indemnity basis.

Strike-out and variation applications

In T v M [2013] EWHC 1585 (Fam), the husband applied to vary a periodical payments order only four months after judgment had been given in the substantive financial remedy proceedings. The husband’s argument was that the wife earned more than she had stated in her evidence. The husband’s application was struck out under rule 4.4(1)(a) with the first instance decision being upheld by Coleridge J on appeal.

In summary, while applications to strike out in family proceedings will be rare indeed, in cases where the facts warrant such an application, it will be an extremely effective tool where previously parties were afforded no such protection.

Andrew Newbury, Pannone

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