Wyatt v Vince [2015] UKSC 14

Kathleen Wyatt sought financial provision from her ex-husband Dale Vince, now a wealthy green energy entrepreneur, 19 years after their divorce following a brief, impoverished marriage. The Supreme Court reinstated her application, holding it should not have been struck out under Rule 4.4.

Facts

The parties married in December 1981 and separated in early 1984 after just over two years of marital cohabitation. They divorced in October 1992. The marriage produced one child, Dane, and the wife also had Emily from a previous relationship, treated as a child of the family. During and after the marriage, the parties lived in conditions of severe privation, largely subsisting on state benefits, with the husband living as a new-age traveller for some eight years following the separation.

The court file for the divorce was either destroyed or mislaid, and neither party retained documents relating to financial relief. It was considered likely that no financial order was made or sought at the time of the divorce. The husband subsequently developed Ecotricity Group Ltd, a green energy company now worth at least £57 million. The wife continued to live in modest circumstances, eventually purchasing a small house in Monmouth under the Right to Buy scheme.

In 2011, some 19 years after the decree absolute, the wife issued an application for financial orders, including a lump sum, quantified at £1.9 million. She also obtained a costs allowance order of £125,000 from Mr Nicholas Francis QC (sitting as a deputy High Court judge). The husband cross-applied to strike out her application under Rule 4.4 of the Family Procedure Rules 2010. The Court of Appeal struck out the wife’s application and ordered partial repayment of the costs allowance.

Issues

The Supreme Court identified four questions: (a) the extent of the jurisdiction to strike out a spouse’s application for a financial order under Rule 4.4 of the family rules; (b) whether the Court of Appeal erred in striking out the wife’s application; (c) what case management directions would be proportionate; and (d) whether the Court of Appeal erred in setting aside the costs allowance order and ordering repayment.

Arguments

The husband argued that the wife’s application had no real prospect of success and should be struck out, particularly given the short marriage, the long delay, the absence of any contribution to his wealth (created long after separation), and the low standard of living during marriage. He contended that the costs allowance was unnecessary because her solicitors could continue to act on the basis of a Sears Tooth charge against ultimate recovery.

The wife argued that her application was legally recognisable; that she had borne the burden of caring for the children single-handedly in conditions of poverty while the husband contributed little or nothing; that her inability to pursue education had limited her earning capacity; and that, under section 25(2)(f) of the Matrimonial Causes Act 1973, her contributions to the welfare of the family supported a substantive award.

Judgment

Lord Wilson, giving the unanimous judgment, allowed the wife’s appeal, reinstating both the deputy judge’s refusal to strike out and the costs allowance order.

Strike-out jurisdiction under Rule 4.4

The Court held that Rule 4.4(1) of the Family Procedure Rules 2010 must be construed without reference to “real prospects of success.” Unlike the Civil Procedure Rules, the family rules deliberately contain no analogue to CPR Rule 24.2 on summary judgment. Jackson LJ in the Court of Appeal had been wrong to read into the concept of “abuse of process” in Rule 4.4(1)(b) a power to strike out applications having no real prospect of success. The omission was deliberate and could not be circumvented through Practice Direction 4A paragraph 2.4, which Lord Wilson described as “an unhelpful curiosity”.

Lord Wilson reasoned that section 25(1) of the Matrimonial Causes Act 1973 imposes a duty on the court to have regard to all the circumstances and the eight factors in section 25(2), citing Livesey v Livesey [1985] AC 424. This meticulous statutory duty is inconsistent with any summary disposal power.

The touchstone under Rule 4.4(1)(a) is whether the application is “legally recognisable” — for instance, applications made after remarriage or after a previous identical application had been finally determined. The wife’s Form A and supporting affidavit disclosed a legally recognisable application, so neither limb of Rule 4.4(1) was engaged.

The merits of the application

While the application faced “formidable difficulties” — short cohabitation, breakdown 31 years ago, low standard of living during marriage, husband’s wealth created 13 years post-separation, no contribution by wife to wealth creation, and inordinate delay — the wife had a potentially powerful point under section 25(2)(f) regarding her sole care of the children in conditions of poverty. Lord Wilson cited Pearce v Pearce (1980) 1 FLR 261 and M v L [2003] EWHC 328 (Fam) as authorities supporting awards in similar circumstances of short marriage, long delay, and substantial childcare contribution.

Lord Wilson observed that delay and contribution were the “two magnetic factors” pulling in opposite directions. Had real prospects of success been the test, he considered the wife had “a real prospect of comparatively modest success,” possibly sufficient to fund a mortgage-free home. He referred the matter for a swift FDR appointment.

Lord Wilson cautioned against assumptions about the law, citing Thorpe LJ in North v North [2007] EWCA Civ 760:

… it does not follow that the respondent is inevitably responsible financially for any established needs… [h]e is not an insurer against all hazards…

Costs allowance order

The deputy judge’s order, made under the pre-statutory jurisdiction recognised in Currey v Currey (No 2), was properly made. Given that the wife already owed her solicitors approximately £88,000 and faced a litigious husband, it was unreasonable to expect the solicitors to continue acting on a Sears Tooth basis. The repayment order was set aside.

Implications

This decision establishes that Rule 4.4 of the Family Procedure Rules 2010 confers a narrower strike-out jurisdiction than its civil counterpart. Family courts cannot dispose summarily of financial remedy applications on the ground that they lack real prospects of success; the statutory duty under section 25 of the Matrimonial Causes Act 1973 requires consideration of all relevant factors.

The decision also confirms that there is no statutory time-limit on applications for financial remedies following divorce (in the absence of remarriage), although delay is a significant factor weighing against a generous award. Crucially, contributions to family welfare under section 25(2)(f) include post-separation childcare, which may carry substantial weight where one spouse has shouldered the burden alone in difficult circumstances.

The judgment is significant for practitioners advising clients on stale financial remedy claims and on the limited scope for strike-out applications. It is, however, qualified: Lord Wilson made clear that the wife’s prospects were of “comparatively modest success,” and that delay, while not creating a limitation period, remains a powerful factor capable of substantially reducing or even eliminating an award. The decision should not be read as encouraging speculative applications many years after divorce, but it preserves access to the section 25 discretion where contributions and need can be properly demonstrated. The case is also important for the law on costs allowance orders, both under the now-statutory jurisdiction in section 22ZA of the 1973 Act and the antecedent Currey jurisdiction.

Verdict: The Supreme Court unanimously allowed the wife’s appeal. The Court of Appeal’s strike-out order and repayment order were set aside. The deputy judge’s refusal to strike out the wife’s application and his costs allowance order of £125,000 were reinstated, with the application referred to a swift Financial Dispute Resolution appointment before a judge of the Family Division.

Source: Wyatt v Vince [2015] UKSC 14