On 11 March 2015 the Supreme Court delivered its decision in Wyatt v Vince  UKSC 14. The headlines that have accompanied this decision have focused on the seeming unfairness of an ex-husband having to pay out a significant sum of money to a former wife after a short marriage that had come to an end over 30 years ago and when his fortune had been accumulated entirely after the parties’ separation.
While the newspapers might wish to focus on the more sensational aspects of the case, the decision of the Supreme Court rested on the construction of Part 4 of the Family Procedure Rules 2010.
Ms Wyatt and Mr Vince were married on 18 December 1981. At the time they married, Ms Wyatt already had a child, Emily, from a previous relationship. They separated in 1984. During the marriage Ms Wyatt gave birth to the parties’ son, Dane. During the course of their relationship and marriage they lead an unconventional traveller’s lifestyle, surviving mainly on benefits.
After separation both parties continued to lead an unconventional lifestyle and neither had any money to speak of. While Mr Vince may have been a free spirit, Ms Wyatt was tied down to a large degree by her responsibility for Emily and Dane with little monetary or practical assistance from Mr Vince.
There were proceedings concerning the children in 1991 and in 1992 Ms Wyatt issued her petition for divorce. Decree absolute was pronounced on 26 October 1992.
In 1994 and in 1997 Ms Wyatt, who by than had been in a relationship with another man for some time, gave birth to Robin and Jessie respectively.
In 1997 Mr Vince’s fortunes changed significantly for the better when a wind turbine he had installed in Nympsfield near Stroud began to generate significant profits. By this stage Dane would have been 14.
Mr Vince’s business continued to prosper and in 2011, Ms Wyatt issued her application for financial order. Her application was in turn met by an application by Mr Vince to strike out her claims pursuant FPR Part 4.4. This provides,
“(1) … the court may strike out a statement of case if it appears to the court:
While Mr Vince’s application was dismissed at first instance, he succeeded on his appeal to the Court of Appeal. However he lost in the Supreme Court.
Decision of the Supreme Court – Where it was right
The Supreme Court held that it was important that there was no provision within the Family Procedure Rules for summary judgment. Lord Wilson held that this omission was deliberate as family proceedings, as compared to civil proceedings, did not lend themselves to summary determination. In particular, an application for financial orders consequent upon divorce involved not a claim or a counterclaim, but rather a discretionary award based upon an enquiry by the court into the matters set out in section 25 of the Matrimonial Causes Act 1973. Lord Wilson held that the lack of jurisdiction to grant summary judgment under the FPR could not be avoided by the court holding that it was an abuse of the court’s process to proceed with an application which had no prospect of success.
Accordingly once it was clear that there was no basis upon which the court could summarily determine the merits of the claim under FPR Part 4.4 the Supreme Court held that a claim for financial orders consequent upon divorce could only be struck out on the grounds of there being “no reasonable grounds for bringing or defending the application” in circumstances where it could be shown that the application was not legally recognisable e.g. where the applicant had remarried prior to making her application or where an identical application had already been dismissed or determined. This was not such a case. Similarly an application for financial orders consequent upon divorce could only struck out as an abuse of the court’s process in an obvious case where the procedure of the court had been abused. Again this was not such a case.
Accordingly when considering the questions posed by the appeal, the decision of the Supreme Court cannot be faulted although some commentators and practitioners may believe that a chance had been missed for the Supreme Court to make clear that significant delay would lead to the summary dismissal of stale claims.
Decision of the Supreme Court – Where it was wrong
Lord Wilson could not restrain himself from offering some guidance as to how he felt that the case might be resolved. This was no way within the remit of the Supreme Court and was undoubtedly obiter. Lord Wilson analysed the issues over some 6 paragraphs and he ignored a whole litany of cases where the courts have stated how important it was for cases to be dealt with speedily and that significant delay could be fatal. Having ignored those cases where delay was considered to be a very significant factor Lord Wilson suggested that the proper award might be an order which would enable Ms Wyatt to purchase a more comfortable home for herself and her dependants. In the meantime of course, Mr Vince would have to pay the formidable legal costs run up in the appeal and he would have to continue to pay for Ms Wyatt to litigate against him under the order for a costs allowance reinstated by the Supreme Court.
The practical effect of this decision is that there is no way to knock out applications that are clearly unmeritorious. The procedure set out in FPR Part 9 will have to be followed at great expense for the parties while using valuable court time and resources.
For parties of modest means and broadly equivalent financial standing, the costs involved will no doubt be a deterrent to issuing speculative proceedings and an incentive to settle. However for people in the position of Mr Vince, they will be held to ransom. If they refuse to settle they will run up substantial costs of their own and they will no doubt have to pay the costs of the impoverished applicant. In those circumstances, no matter how galling, it will make financial sense to make a payment to the former spouse rather than the lawyers.