|Lord Justice Thorpe|
As Lord Justice Thorpe said in his leading judgment, the history of this case is somewhat extraordinary.
The parties met when they were students, married in 1981 when the husband was 20 and the wife was 22 and lived a 'New Age or Traveller' lifestyle. They separated in about 1984 and were divorced in 1992. Apart from the decree absolute, none of the divorce papers survive, and it is not known whether the wife pursued a claim for ancillary relief, or indeed whether her claims were dismissed.
In about 1995 the husband set up his own business. He had made a small wind turbine to generate electricity for his caravan out of retrieved and recycled materials, and that "small seed" grew into a hugely successful business in the wind industry. His company, Ecotricity, is now worth many millions.
In December 2010 the wife instructed solicitors, and in May 2011 they issued a financial remedy claim on her behalf. The husband applied to have the claim struck out, under rule 4.4 of the Family Procedure Rules 2010. The husband's application was dismissed, and an application by the wife for an A v A order to finance the claim in the sum of £125,000 was granted. The husband appealed against both orders.
Lord Justice Thorpe concluded that the judge had fallen into error in his construction of rule 4.4 and approached his essential task too narrowly:
"It was not apt simply to ask was the delay inordinate and, if yes was prejudice to the husband greater than the prejudice to the wife. He had to have regard to all relevant considerations within the history [including the fact that at the time when the wife should have brought her claim neither party had any money and both were in relationships with new partners] and exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court ... Part of the case management function is to eradicate hopeless claims ... in my judgment [the husband] is not to be compelled to boost the wife's income by the exercise of the jurisdiction under the Matrimonial Clauses Act 1973 the existence of which cannot now be plainly established and can only be presumed. He is not her insurer against life's eventualities."As to the appeal against the A v A order, that obviously now fell away but Lord Justice Thorpe indicated that if it had not, he would have allowed the appeal.
In his concurring judgment, Lord Justice Jackson discussed the inter-relationship between the striking out provisions of the FPR and the Civil Procedure Rules. He concluded:
"In the family context, there is no statutory bar to bringing a claim for financial relief ten, twenty or even thirty years after the divorce. Nevertheless, in my view 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) have no real prospect of success. It must be an abuse of the court's process to bring such proceedings.He finished, however, with a warning:
The present case is a classic example of such abuse. Even assuming that the wife's evidence is accepted on all disputed issues of fact, for the reasons stated by Thorpe LJ there is no real prospect that the wife will succeed on her claim. I say this not only because of the long delay, but also because of all the other circumstances which doom the wife's application to failure. Thus, if the deputy judge's order stands, the ultimate result will be that (a) the wife recovers nothing, (b) the husband pays all the costs of both sides and (c) the husband has no prospect of recovering any of the costs which he has paid out. This is not an outcome which the court can contemplate with equanimity, however wealthy the husband may be."
"I should add that an application to strike out under FPR rule 4.4 (1) (b) will only succeed in rare and exceptional cases. The case before this court falls into that category. Under no circumstances should parties start 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 very dim view of any such conduct and may well order the applicant to pay the costs of the application on an indemnity basis."