20 February 2014

Family law news: One strike and you’re out

As a result of a perfect storm of budgetary constraints resulting in the numbers of Family Court administration staff being slashed and the removal of legal aid (so many more people are litigants in person), the Family Courts are under more pressure than ever before. Waiting times for court hearings are unacceptably long and there is an ever-increasing need for judges to manage cases pro-actively.

Effective case management was recognised as an important element of a Judge's task before the current aggravating circumstances facing the family justice system. In Crossley v Crossley 2007, Mark Harper of this firm represented Mr Crossley in his successful application for the wife's financial claim to be ‘short circuited'. At the time, the Family Court did not have the power to ‘strike out' hopeless applications. However, at first instance, Mr Justice Bennett refused to allow the limitations in the rules at that time to act as a ‘straitjacket' to preclude sensible case management. The Court of Appeal upheld the lower court's decision and emphasised the court's objectives (amongst others) of seeking to save expense and allotting to each case an appropriate share of the court's resources, taking into account the need to allocate resources to other cases.

If these issues were important in 2007, they are fundamental in 2014. Rule 4 of the Family Procedure Rules 2010 has given teeth to the Family Court's general duty of case management by way of the power to strike out unmeritorious claims and this tool has been used to great effect in two reported cases within the last year.

In the case of Vince v Wyatt [2013], the parties met as undergraduates and married in 1981. They were married for three years during which time they had a son and ‘chose the New Age or Traveller creed and lifestyle'. Nether party had any financial resources at separation. The parties were divorced in 1992. In 1995, the husband started a wind power business (the seed of which was a small wind turbine which he created from recycled materials in order to generate electricity for his caravan). The former wife made an application for financial relief from the husband in 2011, some 27 years after the parties separated and 19 years after their divorce by which time the business was very successful and was then worth ‘many millions'.

Although at first instance the District Judge allowed the wife's application for financial remedy, even making an order that the husband give her an allowance for legal costs, the Court of Appeal gave the application short shrift. It was held that there was no jurisdiction for the wife's application and, quite simply, the husband was ‘not [the wife's] insurer against life's eventualities'. The wife's application was struck out.

The second reported example of the use of the powerful tool to strike out was in the context of an application for variation of spousal maintenance. T v W [2013] concerned an application by a husband to vary spousal maintenance payable under a Court order, which had been made just four months earlier, following a disputed final hearing. During that hearing, the wife had been cross examined over three of the four days allocated to the case. The husband's application was based on the argument that the wife had misrepresented her earning capacity and, once the court worked this out, his payments would be varied. Clearly this was an untimely application made so shortly after the wife's evidence, which had been thoroughly tested by the court in the earlier proceedings. Mr Justice Coleridge did ‘not think that, against the background of the costs which have been spent to date, it [was] a proper use of the court's time or a proper use of the court process to allow this case to proceed.'

In the context of a chronically strained Family Court system, orders for strike-out may become an invaluable and necessary tool as the Court becomes ever more willing to take steps to minimise the time given to unmeritorious claims.

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