Court finds that A v A funding order should not have been made
The Court of Appeal has allowed an appeal by a husband against the dismissal of his application to strike out his former wife’s claim for a financial remedy, which she issued some 18 years after the parties were divorced. The Court also held that the husband should not have been ordered to pay a total of £125,000 to fund his ex-wife’s legal costs of bringing the claim against him. In the High Court Mr Vince had been ordered to pay £125,000 directly to Ms Wyatt’s solicitors, who acted under a Sears Tooth agreement.
In Vince v Wyatt  EWCA Civ 495 the Court heard that Dale Vince and Kathleen Wyatt married in December 1981. At the time both were receiving state benefits. They had a child in May 1983 and separated in February 1984. In October 1992 Mr Vince and Ms Wyatt were divorced. At the time of the divorce neither party had any assets and both were receiving state benefits. Ms Wyatt had a relationship with another man with whom she had children. Mr Vince married his current wife in 2006 with whom he has a son.
It is unclear whether any financial orders were made at the time of the divorce in 1992. Given the time which has elapsed all the court papers apart from the divorce decree itself have been destroyed. The files of the solicitors involved at the time had also been destroyed long ago.
In 1996 Mr Vince founded Ecotricity, the world’s first green energy company which has since grown into a very successful business estimated by The Sunday Times Rich List to be worth £90m.
In a unanimous decision the Court of Appeal upheld Mr Vince’s appeal against a judgment given in the Family Division of the High Court in which the court declined to strike out Ms Wyatt’s claim as an abuse of process and ordered that Mr Vince furnish Ms Wyatt with a fighting fund to bring the claim against him.
The Court of Appeal ordered that Ms Wyatt’s claim for a housing fund and capitalized lifetime maintenance should be struck out because at the time when Ms Wyatt should have brought her claim neither party had any money and both were in relationships with new partners. Mr Vince’s present wealth was generated years after the parties divorced as a result of the success of the Ecotricity business.
“Too often the divorce courts in this country take the view that wealthy parties should pay simply because they can pay. This judgment injects a welcome dose of principled legal reasoning. Mr Vince understandably expected that having separated from his ex-wife in 1984 when he was a penniless 22 year old, he should not be required to pay her a vast sum of money simply because years after she divorced him in 1992, he had built a successful business. The Court of Appeal agreed with him unanimously.”
Giving the lead judgment for the Court of Appeal, Lord Justice Thorpe said:
“The facts of this case are extreme. Impecuniosity has been the experience of all of the wife’s adult life. Both the men with whom she has entered into family life were seemingly equally impecunious. Her husband was the most improbable candidate for affluence. The wife no doubt can appeal to his sense of charity but in my judgment he is not to be compelled to boost the wife’s income by the exercise of the jurisdiction under the Matrimonial Clauses Act 1973. He is not her insurer against life’s eventualities.”
In a concurring judgment, Lord Justice Jackson said:
“[I]n 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…The present case is a classic example of such abuse.”
The Court also held unanimously that Mr Vince should not have been ordered to fund his ex-wife’s legal costs of bringing the claim against him. Lord Justice Thorpe said that he would have allowed Mr Vince’s appeal against that aspect of the order even if he had not allowed his appeal against the entire claim being allowed to continue. Agreeing that Mr Vince should not in any event have been ordered to pay Ms Wyatt’s costs, Lord Justice Jackson said:
“[I]f 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.”
Martin Pointer QC, Geoffrey Kingscote and Simon Webster, all of 1 Hare Court (instructed by Schillings), acted for the husband. Philip Cayford QC of 29 Bedford Row (instructed by Mishcon De Reya) acted for the former wife.
The judgment can be read here.
SOURCE: Family Law Week