The Honourable Mr Justice Cobb:
- On 19 April 2016, MG (hereafter "the mother") issued proceedings in the Central Family Court under section 15 and Schedule 1 of the Children Act 1989 ("the 1989 Act"); the Respondent to that application is FG ("the father"). The proceedings concern their child ("CG"), who is eight years old. Within those proceedings, two specific applications have been issued which require preliminary determination:
i) The father's application, dated 9 May 2016, by which he seeks a summary dismissal, or strike out, of the mother's Schedule 1 application under rule 4.4 of the Family Procedure Rules 2010 ("FPR 2010") on the basis that it is an abuse of process;
and in the event that the father's application is not successful,
ii) The mother's application, dated 29 June 2016, for a legal costs funding order in respect of the Schedule 1 proceedings.
If the case proceeds beyond the application for strike out, I have further been asked to consider the giving of directions for trial.
- The case was listed for directions only on 7 July, but as court time was available for me to hear argument on the two specific applications identified above, I did so. I reserved judgment.
Background
- It is necessary to set out the unusual background history to this application as a context for the arguments and my decision.
- The mother is Australian, the father English. The parties met in 2004 and married in Sydney in November 2006. They lived together in England until their separation after sixteen months of marriage in March 2008; they were divorced in Australia in May 2009. This was clearly a short marriage; CG is the only child of the marriage. The mother has lived in Australia with CG since 2008, and continues to live there; she says that she wishes to live now in the UK. The father has in fact since re-married, and has two further children; he lives in London.
- In March 2009, the mother issued financial remedy proceeding in the Circuit Court in Australia; she also made a claim for child support through the Australian Child Support Agency. The financial remedy proceedings were resolved by consent when the parties entered into a series of 'Binding Agreements' during 2009 (April and August), following mediation. The parties were assisted in the negotiations, and in drawing up the agreements, by specialist family lawyers. Three separate agreements were reached, in relation to (i) spousal maintenance, (ii) child support and (iii) capital provision. It is significant to note, for an appreciation of the context of the substantive application and the application to strike out, that the agreements took effect in Australia as if they were/are court orders given that a number of relevant statutorily prescribed requirements were fulfilled - e.g. that the agreements were signed, that the parties had independent legal advice etc. The agreed quantum of child support exceeded that which would have been calculated by the Australian Child Support Agency.
- Under the Agreements, the mother received:
i) Time-limited spousal maintenance at Aus$600pw (the duration of the term was 3.5 years, until CG's fifth birthday); the agreement was expressed to finalise all spousal maintenance issues, and it further confirmed that the parties "have had regard to the possibility that one or other of them may be subject to a change of circumstances";
ii) Child support at Aus$350pw (adjustable by reference to the consumer price index);
iii) A lump sum of Aus$172,500 (roughly £72,500 at the time), which was said to be c.40% of the net matrimonial assets.
- Some two years after the concluded agreements in Australia, in August 2011, the mother issued an application in the English Court for an order under Schedule 1 of the 1989 Act; the father applied to strike it out on the basis that the financial support for CG had been dealt with in 2009 (as above). The mother responded by agreeing to the dismissal of her application without determination of the merits in November 2011. There is some suggestion in the documents that in early 2012 the mother applied again in this jurisdiction for an order under Schedule 1 of the 1989 Act; if she did, it appears to have been withdrawn. In July 2012, the mother issued an application in the Federal Circuit Court of Australia for a variation and/or set aside of the Binding Agreements relating to spousal maintenance, child support and capital provision; she sought an interim order for capitalised spousal maintenance at Aus$100,000, and a further Aus$50,000 by way of child support. By the time of the hearing of her interim application in August 2012 she had revised her bids upwards to Aus$300,000 and Aus$200,000 respectively. That application was considered by Judge Scarlett and dismissed by him in October 2012; for that hearing, the mother had filed a "plethora of lengthy affidavits with a significant number of annexures, not all of which appear to be directly relevant to the application".
- The mother then pursued in the Federal Court her applications to set aside all of the Binding Agreements on the basis that the agreements had been procured by duress, and/or fraud, and/or unconscionable conduct, and/or on the basis that the father had failed to give full and frank disclosure, and/or on the basis of a change of circumstance, and/or on the basis of negligent advice from her lawyers; by this time, the mother's aspiration "for lump sum child support" had risen to Aus$580,000. The mother's multiple applications were heard in 2014, and judgment was delivered on 29 January 2015. It is recorded in that judgment that 16 affidavits were filed by the mother with multiple exhibits running to some 2,200 pages; 12 of the affidavits were ruled inadmissible in their entirety and of the remaining 4, certain whole sections of these were ruled inadmissible. The mother's applications in all respects were rejected, and her claim that the Binding Agreements should be set aside was dismissed. In his judgment, the judge (Judge Scarlett) considered carefully the limited routes by which a Binding Agreement for spousal maintenance or child support could be set aside, and disposed of the arguments thoroughly and carefully. He drew attention to section 136(2)(d) of the Child Support Assessment Act 1989 (Australia), which provides that in these circumstances a Child Support Agreement could be set aside only if, because of "exceptional circumstances" relating to the mother or child (CG) arising since the agreement was made, "[the mother] or the child will suffer hardship if the agreement is not set aside". The Court found that the mother had not demonstrated that she or CG fulfilled this statutory threshold requirement. Indeed, the Judge specifically recorded:
"[106] The [mother] has not led any evidence to show that since the making of the agreement a material change in circumstances has occurred relating to the care, welfare and development of the parties' child and, as a result of that change, either the child or [the mother] will suffer hardship if the Court does not set the agreement aside.…
[109] There is no evidence of any material change in circumstances resulting in either the child or [the mother] potentially suffering hardship."
- The mother did not appeal.
- On 1 July 2015, the mother made an application in this jurisdiction for permission to apply for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 ("the 1984 Act"). She contended that the Binding Agreements were not fair and did not make proper provision for herself and her daughter, and that she had a real need for further financial relief. On 27 August 2015, Parker J heard the application but adjourned it to an inter partes hearing. On 6 November 2015, Parker J heard full argument and refused the application, concluding as follows (I do not have a transcript of the judgment, only counsel's note; I do not believe that it is controversial):
"I do not consider there is substantial ground for making an application. The fact that [the mother] wants now to live in England is not a ground for revisiting the decision that has been made in Australia. There is no other ground or any other way to allow me to grant the application and there is no gap that needs to be filled by the English court."
- A costs order was made against the mother; in making this costs order, Parker J referred to the Part III application as "unnecessary and unjustified". The mother sought permission to appeal; this was refused by Davis LJ on paper on 21 December 2015, and by Black LJ following an oral hearing on 13 April 2016. I have a transcript of the judgment of Black LJ refusing permission, and extract the following points of interest from it:
i) The mother was contending in the Part III application that the agreements were not fair; it is clear that she was saying that the agreements did not make proper financial provision for her and for CG [9];
ii) The mother wishes to come to live in England and sees her financial application as a necessary precursor to doing that [15];
iii) "Parker J's reasoning in dismissing the application was … that the wife had received provision under the Australian agreement, the Australian system was based on very similar principles to our own and the remedies open to the wife there had included an application of the type that the wife made to the Australian judge (Scarlett J) in 2014, determined in 2015, which had entitled the wife to air her allegations that the husband had been guilty of non-disclosure and fraud and … her allegation that she had been under duress in making the agreement" [17];
iv) That Parker J had concluded that the mother should not be allowed to have a rehearing of the issues here. "Any new matters that she had uncovered since that set of proceedings in Australia were the province, in Parker J's view, of the Australian courts and she considered that it was not open to the wife to use our courts to pursue those matters." [18];
v) The threshold for granting permission under Part III is not high; as Parker J recognised, a solid case is all that is needed [20];
vi) "There is nothing in the materials that [the mother] has provided which establishes that the provision that was made in those agreements was in fact unfair" [23];
vii) "I would observe that the marriage was a short one, albeit there was a child which is obviously an extremely important factor. Even in an English court sizable capital provision for the wife might not have been made. The mere size of the capital that she received does not therefore speak for itself. Periodical payments for a spouse for a shortish period until a child reaches school age would not be surprising either in an English court, and as for [CG]'s payment, they continue as would be anticipated. Furthermore, even in the English court, considerable weight would have been given to agreements reached in the circumstances of these agreements when the court decided what provision to make for the wife and child and although I think counsel would disagree with this, it may be as a matter of practicality that a judge would lean towards approving agreements made between represented parties unless some obvious unfairness was apparent. The fact that the wife has more need now would not be a reason, even in this country, to re-open a previous settlement which had been endorsed by the court and then taken the form of a consent order" [24];
viii) It is important to recognise that the agreements in Australia did not in fact oust the Australian courts completely (as the mother herself demonstrated) [25].
- Some six days after the refusal of permission to appeal (19 April 2016), the mother made the Schedule 1 application which is before the court now; she declared on the application form her intention to pursue the full range of financial relief for CG including periodical payments, secured periodical payments, lump sum, settlement of property, and transfer of property; she subsequently conceded in an e-mail from her solicitors (10 May) that she would not pursue child support until/unless she returned to live in England. On 9 May 2016, the father applied to strike out the Schedule 1 application. DDJ Berry directed that the father's 'strike out' application should be listed for hearing and dispensed with the need, in the meantime, for the filing of Forms E. On 17 May 2016, the mother's solicitors applied to discharge the order of DDJ Berry, and sought standard directions for exchange of information and first appointment. On 26 May the application was transferred to the High Court by DJ Gibbons; she gave directions for the filing of a Form E by the father. Finally, on 29 June 2016, the mother's solicitor filed the application for a legal costs funding order.
- The father currently pays child support at the rate of £833pcm. This will increase from next month to £1085pcm. The father claims (and there is no reason to doubt this) that he has faithfully complied with all his obligations under the Binding Agreements, and has not missed a single payment. The father has filed a Form E in which he deposes to a net income of £82,000; he is said to have capital now in the region of £800,000, largely comprising the equity of the home in which he lives with his wife and children.
- The mother's case is that she wishes to live in England, to make a base in Central London, in order to pursue a career, and so that CG can "attend one of the excellent local private schools". The mother states that she is in need of surgery to correct a herniated disc in her spine, and to repair accidental damage to her knee. She claims to have debts in the region of £86,000 (Mr. Yates says £115,000). She says she has no assets. She says that she is likely to be evicted from her current home, and is reliant on State benefits in Australia "to keep us from drowning in debt". Specifically, she seeks:
i) Capital provision "to enable [CG] and me to be housed" (i.e. in Central London);
ii) Appropriate "day-to-day support" to enable her to care for CG (she pitches this at £152,200pa, represented by income needs of £85,000 for herself and £43,200 for CG – exclusive of education);
iii) Sums towards CG's education (£24,000pa) and healthcare;
iv) Additional "urgent" support to pay off the debts referred to above (some of the debts are said to be eight years old).
The parties' cases: strike out
- The father's case is that the mother's Schedule 1 claim represents an abuse of process; specifically, he says that the mother has received a proper award of child support for CG under the Binding Agreements in Australia, and that her multiple attempts to set aside, vary, or augment the provision through the courts here and in Australia have all ended, rightly, in failure. The Schedule 1 claim was only issued because the Part III claim failed; that Part III claim was only issued because the proceedings in Australia had ended in failure. He argues that had the Schedule 1 claim sought materially different relief from that under Part III of the MFPA 1984 she would surely have issued the claims simultaneously in 2015, not consecutively. In that sense, a form of estoppel arises.
- The mother contends that the application should be considered on its merits and not disposed of summarily as proposed by the father; that the circumstances in which the court should strike out an application (particularly one in which the beneficiary of the prospective order is a child) under rule 4.4 are extremely limited. This is clear from PD4A FPR 2010 and from the decision of the Supreme Court in Wyatt v Vince [2015] UKSC 14; the circumstances in which strike out would be appropriate discussed in Wyatt v Vince do not obtain here. While conceding that her repeated failed efforts to challenge or set aside the Binding Agreement are likely to be relevant in the discretionary exercise, they do not create an estoppel, and are not relevant to the exercise of strike out. Mr. Yates contended that CG's interests in this application are paramount, and that the court should be very slow to take any summary step which may be contrary to those interests.
Discussion: strike out
- Since April 2011, rule 4.4 of the Family Procedure Rules 2010 ("FPR 2010") has endowed the court with power to strike out an application where it appears to the court that the application "discloses no reasonable grounds for bringing or defending the application" (rule 4.4(1)(a) FPR 2010) or is "an abuse of the court's process" (rule 4.4(1)(b) FPR 2010). There are other possible grounds for the exercise of this power within the rules which are not relevant to these facts; indeed, the rules do not in fact limit the circumstances in which a strike out can be ordered (rule 4.4(4) FPR 2010), but it is reasonably assumed that any power under the inherent jurisdiction would go no further than the rules (see Wyatt v Vince at [19]). Although this power of strike out does not apply to the majority of proceedings concerning the upbringing of children under the 1989 Act (the rules for which are contained in Part 12 FPR 2010), an application under Schedule 1 of the 1989 Act is governed by Part 9 as 'financial remedy' proceedings (see rule 2.3, and rule 9.1 FPR 2010), and not Part 12.
- Rule 4.4 contemplates an essentially summary process reserved for those cases which, by way of illustration, "set out no facts indicating what the application is about", those which are "incoherent and make no sense", and/or which "do not disclose any legally recognisable application against the respondent" (PD4A FPR 2010, para.2.1). Those illustrations readily exemplify the utterly hopeless case which would justify strike out in limine as an abuse of process. Lord Wilson JSC in Wyatt v Vince discussed this at [27], confirming (in contrast to the line taken in the Court of Appeal in that case) that it would be wrong:
"… to insinuate into the concept of abuse of process in Rule 4.4(1)(b) of the family rules an application for a financial order which has no real prospect of success" (emphasis by italics added).
The reasoning for this view lies in the fact that determination of an application for financial relief is discretionary, and, by virtue of section 25(1) of the 1973 Act, "it is the duty of the court in determining it to have regard to all the circumstances and, in particular, to the eight matters set out in subsection (2)" (per Lord Wilson at [27]). He explained:
"The meticulous duty cast upon family courts by section 25(2) is inconsistent with any summary power to determine either that an ex-wife has no real prospect of successfully prosecuting her claim or that an ex-husband has no real prospect of successfully defending it."
Later he added this:
"I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 of Practice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable". (emphasis by italics added).
References to section 25(1) and section 25(2) of the MCA 1973 in the passages above can be translated to paragraph 4(1) of Schedule 1 in a claim for financial provision for children.
- This approach must plainly be faithfully followed, as it was in Dellal v Dellal & Others [2015] EWHC 907 (Fam), where Mostyn J observed (at [20]) that "arguments about real prospect of success can only arise in a literal sense, as described by Lord Wilson i.e. a claim which is legally unrecognisable has no prospects of success" (emphasis by italics added).
- It follows that the judicial dicta in earlier decided cases about strike out must be treated with considerable caution, if not disregarded altogether. Thus in Rose v Rose [2003] EWHC 505 (Fam), [2003] 2 FLR 197, a case self-evidently preceding the FPR 2010, Bennett J said at [28] (emphasis by italics added):
"… it is absolutely essential in ancillary relief cases that the court should be able to put a stop to applications seeking to reopen matters already decided by a court, whether by consent or after a contested hearing, if the court is satisfied that no useful purpose will be served by reopening the matter".
This was a point which Baron J (who had been counsel in Rose) specifically endorsed (and repeated verbatim) in the context of a Schedule 1 claim in MB v KB [2007] EWHC 789 (Fam) [2007] 2 FLR 586 at [19]; in that case she described the jurisdiction of the court to "strike out unmeritorious applications" where they were "doomed to failure", confusingly adding (if I may respectfully suggest), "[i]n other words, the court should only sanction the continuation of a case if there is a good arguable case put before it" (see [20]). That approach would be impermissible now. The exercise of summary dismissal was also considered appropriate (on the wide spectrum of available procedures in children upbringing cases) where an application was assessed to be "if not groundless, lacking enough merit to justify pursuing the matter" (Sir James Munby P in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089); this case, relied on by Miss Selman in argument, was not however concerned with strike out as such, rather with proportionate and robust case management.
- The guidance from the Supreme Court (see [18] above) is clear. In deciding whether to order a strike out based on 'abuse of process' under rule 4.4, I must not be distracted by a detailed consideration of the merits of the claim itself, but must confine my consideration to whether the claim is incoherent, lacking in sense, legally unrecognisable, factually baseless or similar. I have contemplated whether a claim could be an abuse of process in this context if the application sought determination of a matter which was res judicata in any formal or informal sense, or bound by the convention of estoppel. I do not believe that the rules and supporting Practice Direction, or the Supreme Court's interpretation of the rules, exclude an application for strike out on such a basis, However, I am not satisfied that I can reach such a conclusion on the facts of this case. I now explain why.
- First, the 2014/2015 challenge to the Binding Agreements in the Australian Federal Court did not cause that court (as a court of competent jurisdiction) to consider the financial settlement for CG truly on its merits; unlike the English matrimonial jurisdiction, in which the court has a duty to scrutinise an agreement and a proposed consent order, to satisfy itself as to the appropriateness of its terms, and to consider whether any further enquiries should be made (see Xydhias v Xydhias [1999] 1 FLR 683 at 692), the Australian court does not in these circumstances have such a role, and did not exercise such a role. The mother's legal challenges to the Binding Agreements in Australia required Judge Scarlett to consider the specific, and relatively discrete, allegations of fraud, duress, lack of disclosure etc., not the overall adequacy of financial provision. Moreover, on the issue of child support, the judge in the 2014/2015 litigation was confined (per section 136(2)(d) of the Australian Child Support (Assessment) Act 1989) to considering whether the mother had demonstrated 'exceptional circumstances' and 'hardship' before he could displace the Binding Agreement. This specific and exacting test would plainly not be applied in a Schedule 1 claim here; indeed, in a Schedule 1 case the judge can include issues beyond hardship and basic need, including the 'standard of living' of the parties which, although not expressly among the statutory factors, has been held to be relevant to the exercise of discretion – see Hale J (as she then was) in J v C (Child: Financial Provision) [1999] 1 FLR 152 and Singer J in F v G [2004] EWHC 1848 (Fam), [2005] 1 FLR 261. For these reasons the Australian proceedings did not create an estoppel.
- Secondly, and notwithstanding the similarities between the Part III litigation and the Schedule 1 claim, I do not consider that the Part III litigation created an estoppel. In order to be satisfied that it did so, I would need to have identified a decision on the merits on the same issue in those earlier proceedings as arises in these proceedings; there has been no such a determination. The similarities between the processes superficially pointed to the basis of an estoppel:
i) Contrary to the arguments raised by the mother in this case, the Part III application included a financial claim for the benefit of CG (see [11(i)] above);
ii) The parties to the two applications were the same;
iii) The basis of the claim was the same;
iv) The exercise of both of these jurisdictions could (and would in this case) be secondary to a previous financial award in divorce proceedings;
v) There is a similar range of orders available under the two jurisdictions (i.e. periodical payments, lump sum, property adjustment etc.);
vi) The statutory checklist of relevant factors applicable on the determination of the substantive application has many common features, within a general requirement to take account of all the circumstances of the case.
It is, however, the differences which undermine a true basis on which an estoppel could be established. They are as follows:
vii) There was no determination of the Part III claim on the merits. The case stalled at the procedural permission stage in the Part III proceedings which are not a feature of the Schedule 1 proceedings; that permission stage of course filters out those cases where it cannot be shown that there "is substantial ground for the making of an application for such an order" (section 13 of the 1984 Act). As was made clear in Agbaje v Agbaje [2010] UKSC 13 [2010] 1 FLR 1813, this test is not of itself a consideration of the merits of the substantive application ("The factors in section 16(2) are not expressed to be relevant to the question whether an order is to be made. They are the matters to which regard must be had in considering whether 'it would be appropriate for such an order to be made by a court in England and Wales' (section 16(1))" – [41]/[42]). On this aspect, the mother had to demonstrate something "higher than 'serious issue to be tried' or 'good arguable case' found in other contexts. It is perhaps best expressed by saying that in this context 'substantial' means 'solid'." (Lord Collins in Agbaje v Agbaje at [33]); this permission stage erects a hurdle which is not present in a Schedule 1 claim;
viii) The legislative purposes of the statutory provisions are different; Part III is described as "the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England" (Agbaje at [71]); there is no such limited purpose of the Schedule 1 jurisdiction wherein the court has broad discretion to make one or more of a wide-range of orders (paragraph 2 Schedule 1) in favour of or respect of a child having regard to a non-exhaustive list of factors set out in paragraph 4 ibid.
- I should add for completeness, though it makes no difference to my overall view, that I was unpersuaded by Mr. Yates' argument that the 'welfare' factor set the Schedule 1 and Part III cases apart. He contended that in the Schedule 1 case, welfare is paramount, unlike a Part III case. This is not strictly so: Section 105 makes clear that the term "upbringing" in section 1(1)(a) of the 1989 Act includes "the care of the child but not his maintenance" (emphasis added). The welfare of the child would be, or would have been, the "first" consideration in the Part III proceedings (see section 18(2) of the 1984 Act), and would be or have been "a constant influence on the discretionary outcome" in these Schedule 1 proceedings (see Thorpe LJ preferred in Re P (A child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865 at [44]). There may be little distinction between these two approaches.
- Thirdly, and in any event, the doctrine of estoppel ought, I recognise, to be sparingly applied in cases concerning children. Baron J in MB v KB (above) said this at [25]:
"The concept of issue estoppel simpliciter is not, to my mind, appropriate in matrimonial cases, particularly when dealing with the developing needs of a child. The requirements of children, as they grow, in turn require the court to preserve its jurisdiction for the protection of the child. No adult compromise can oust that jurisdiction. In the case of Re B and Another (Minors) (Care Proceedings: Evidence) [1997] 3 WLR 1, [1997] 1 FLR Hale J, as she then was, said, at 11 and 295 respectively:
'It seems to me that the weight of Court of Appeal authority is against the existence of any strict rule of issue estoppel which is binding upon any of the parties in children's cases.'"
Adding at [26]:
"I agree with that simple maxim. Clearly, no mother or father can seek to oust the court's jurisdiction when it relates to their child."
Cases concerning children are not static; the court should be slow to knock out a claim without consideration of the merits (particularly where the previous determination is some time ago) where the result may affect or even interfere with the continuing needs of a child.
- It was argued on behalf of the father that the remedy of strike out is available to him because the mother's application under Schedule 1 could not be described as 'exceptional', and would therefore be bound to fail. On this point she drew my attention to the decision of Baron J in MB v KB (above) (which establishes the jurisdiction to entertain a Schedule 1 application following concluded financial proceedings), and PK v BC (Financial Remedies: Schedule 1) [2012] EWHC 1382 (Fam), [2012] 2 FLR 1426. In PK v BC, Moor J (at [13], said:
"I accept … that the court does have jurisdiction to consider the question of whether or not to award a further lump sum pursuant to Schedule 1 even where there has been a clean break in divorce proceedings. However, I do take the view that the circumstances have to be exceptional. When two parties reach an ancillary relief clean-break order they are putting behind them their financial disputes. Normally the wife, but sometimes the husband, accepts the sum on a once-and-for-all basis. It is, in my view, a very high hurdle that has to be overcome for a mother to then bring a further application for financial provision by way of housing. If it was to occur it would of course be for a settlement of property order; it could not be an outright lump sum, given the authorities. So what the mother would be asking would be for the father to provide capital on a trust basis that would return to him once C had completed her full-time education or attained majority." (emphasis by italics added).
- Miss Selman contended that Moor J was right to set the test relevant to an application for further financial provision following an agreed clean break in this way, given the inaptness of permitting – let alone encouraging – second bites at the financial cherry following concluded proceedings. If this was not an exceptional case (and it was argued that it was obviously not), then the application should be struck out. Mr. Yates argued that Moor J was wrong to introduce a test of 'exceptionality', and that even if he were right, (a) this was not obviously an unexceptional case, and (b) this exceptionality test has no place on an application for strike out under rule 4.4.
- There is a danger that focusing on the particular language of a given judgment may obstruct the proper exercise of the relevant jurisdiction, and I must guard against doing so; as Wilson LJ (as he then was) observed in Currey v Currey (No.2) [2006] EWCA Civ 1336, [2007] 1 FLR 946,
"There is a recognised syndrome in which, in order to illumine his exposition of the proper approach, a judge uses a word; and then, to his or her astonishment, finds that the word of intended illumination is mistaken for the proper approach itself."
That said, I do regard the cases in which a second bite would be permitted as few and far between – they will indeed, in my view, be the exception rather than the rule. But even an unexceptional claim under Schedule 1 may be legally recognisable, and therefore outwith the scope of rule 4.4.
- The protracted litigation history in this case has given me much to reflect upon when considering this strike out application. The mother's repeated failed applications may indicate abuse of a legal process; I have no reason to doubt that Parker J was right to use the word "unjustified" (see [11] above) to describe the recently unsuccessful Part III application. It is therefore not without considerable reservation that I have reached the conclusion that the father's application to strike out this Schedule 1 claim at this time under rule 4.4 must fail. In reaching this conclusion, I have strictly applied the test, as discussed in Wyatt v Vince (see [18] and [19] above), and do not feel that I can or should extend its "limited reach" (see the citation in [18]) on these facts. I wish nonetheless to make the following points:
i) In considering the mother's case on its merits, the court will be bound to take into account the litigation history, and specifically that she has failed to persuade the Australian Court of the existence of fraud, undue influence, material change of circumstances, or duress; she has further failed to demonstrate that there are "substantial" or solid grounds for making an application under Part III. While I have confirmed that these failed applications do not create an estoppel as such (see [22]-[25] above), they are likely to be highly relevant to the general approach of the court on the substantive application; the mother will not be permitted to go behind the findings already made;
ii) The court will plainly have regard to the terms of the Binding Agreements; as Black LJ said in refusing permission to appeal in this case, "considerable weight would have been given to agreements reached in the circumstances of these agreements when the court decided what provision to make for the [wife and] child" (see [11(vii)] above);
iii) The mother's aspirations (as I have summarised them at [14] above) are ambitious, if not exorbitant; in some respects, they appear to be outwith the Schedule 1 jurisdiction altogether. On the evidence and information currently available, she would be well advised to review and downscale her potential claim – if one truly exists at all – very considerably. I am doubtful (though have not heard argument on it) that she could expect to recover any award from the father for the benefit of CG at this point to fund her relocation to the UK; furthermore, the prospects of her receiving any award of substance may be materially circumscribed by the respective financial positions of the parties. Whether the case has features (or needs to have features) which characterise it as 'exceptional', thereby justifying a further award on the merits (per Moor J), is a matter for another day;
iv) I will apply (as Lord Wilson advocated in Wyatt v Vince at [28]) the 'overriding objective' (rule 1 FPR 2010) in ensuring that as between the mother and the father the claim going forward is dealt with hereafter 'justly'; this overarching principle does not come into play in my determination of rule 4.4, but will drive case management decisions going forward so that the case remains strictly within cost-controlled and proportionate boundaries. There is a very clear risk, given the extraordinary history of litigation in this case, that any potential financial benefit for the child (which, if any at all, is likely to be modest) will be swiftly and possibly wholly absorbed by the legal costs in pursuing the same. The parties have already expended substantial sums in relation to the mother's unsuccessful bids to set aside, vary &/or supplement the financial provision agreed in Australia. The mother already has one costs order against her, which has not yet been paid. I recognise the importance of judges seeking to save expense, by dealing with cases proportionately (see, for instance, Thorpe LJ in Crossley v Crossley [2007] EWCA Civ 1491 [2008] 1 FLR 1467 at [15]), and will apply the 'overriding objective' conscientiously.
The parties' cases: legal costs funding order
- The mother seeks an order for legal costs funding. She asserts that without this support from the father, she would not enjoy equality of arms with the father in this litigation. The mother's schedule of prospective costs from now to FDR reveals a figure of £78,198; that is on the basis that the solicitor and counsel are on "reduced rates". The mother's claim is for a contribution of £30,000. The father opposes the mother's application.
- I have no doubt that I have the jurisdiction to make a legal costs funding order in relation to this Schedule 1 claim. As I indicated in BC v DE [2016] EWHC 1806 (Fam) at [15], in cases of this kind the court is most helpfully guided by the compendium of fourteen principles to be found at paragraph [13] of Rubin v Rubin [2014] EWHC 611 (Fam). I do not intend to reproduce the Rubin principles in full in this judgment, but to address those factors which are most relevant on the facts of this case to the exercise of my discretion:
i) The income, earning capacity and financial resources of both parties now and in the foreseeable future are relevant; I note that the mother claims penury. The father, it seems to me has reasonably limited free income, and/or ability to make a contribution, given his own financial commitments to his family in London, to his ongoing support for CG, to his mortgages, and in supporting his ability to earn. On the mother's own schedule, the father's assets are essentially illiquid - the net equity in his home, equity in another property (from which, on sale, CGT would need to be accounted for) and an ongoing business credit (which operates effectively as income);
ii) The mother's conduct in relation to the legal proceedings over the last few years, including the repeated failed applications in this jurisdiction and in Australia involving filing of plainly excessive materials (see [7] and [8] above) is obviously highly relevant; the father is likely to have incurred considerable expense in defending those failed applications;
iii) The failure of the mother to discharge her own liability to an award of costs is specifically a matter to which I should have regard under section 22ZB(1)(g) of the 1973 Act (see also [13(i)] of Rubin);
iv) I have regard to the matters in issue between the parties (section 22ZB(1)(c)), including the fact that there is in existence a Binding Agreement in relation to the matters which are now put in dispute by the mother; I have regard to the fact that "the claim for substantive relief appears doubtful, … having regard to its subject matter" and I therefore "judge the application with caution. The more doubtful it is, the more cautious it should be" ([13(iii] Rubin);
v) The reality that the father would be unlikely to recover any sums which are paid to the mother now by way of legal costs funding award as a costs order at the conclusion of the proceedings under CPR Part 44.
- I recognise that currently the father has engaged solicitors and, for all I know, will continue to do so; I also recognise that by the dismissal of this application the mother may find herself unrepresented, and thereby – she may feel – on an uneven playing field in this litigation. I know that she has represented herself in the past and it may be that she will be forced to do so again. However, on the material available I am not prepared in the exercise of my discretion to accede to her claim for a legal costs funding order, and I shall dismiss the application.
Directions
- I will invite counsel to agree directions for trial, or, in the absence of agreement, submit proposed directions in writing (so as to save costs). Each direction will have to be scrupulously cross-checked by the principles set out in rule 1.1 and rule 1.4 FPR 2010. I have in mind that:
i) The mother should file a short statement within three weeks:
a) showing cause why the Binding Agreements in Australia do not make proper financial provision for CG;
b) setting out in specific terms (and with reference to specific sums) her claim under Schedule 1;
ii) For the father to provide necessary documentation in support of his Form E within, say, three weeks;
iii) Concise questionnaires (limited to four sides of A4, 12-point font) within three weeks of the disclosure;
iv) Replies to the questionnaire, three weeks thereafter;
v) List for FDR before a Judge of the Family Division with a time estimate of ½ day.
I am not prepared to list this case for final hearing at this stage.
- That is my judgment.
