Peel J. The last instalment in the Simon v Simon & Level family court litigation. Level’s civil claim is yet to be determined. Peel J found that the family court cannot make a distributive order upon application of an intervenor to require one party to pay the other party such sum as the third-party intervenor says it is entitled to.

Summary

On 20 June 2024, Peel J heard the matter for further consideration pursuant to the Court of Appeal’s order dated 18 October 2023. Peel J referred in his judgment to all the previous judgments; [4]. He also utilised the background as set out by King LJ in Simon v (1) Simon (2) Integro Funding Limited (‘Level’) [2023] EWCA Civ 1048, setting it out in full at [5].

At the earlier March 2022 hearing Mr Cusworth KC set aside the contentious consent order, refused H’s application to make/re-make the order, and upheld the order joining Level to the proceedings. Mr Cusworth KC also provided for (i) a two-day case management hearing and (ii) a five-day final hearing. Finally, he directed that the civil claim be transferred to the family court, to be heard after conclusion of the financial remedy proceedings.

H appealed the orders of Mr Cusworth KC. Permission to appeal was granted on 27 February 2023, and the judgment of the Court of Appeal on the substantive appeal was handed down on 12 July 2023.

The appeal was refused on the substantive grounds (in particular joinder of Level as intervenor, and refusal to make the consent order), but allowed only to the limited extent that (i) the judge should not have transferred the civil claim to the family court and (ii) the judge should not have timetabled towards a full scale final hearing; rather, he should have listed an intermediate hearing to consider whether the case could be dealt with summarily and/or what further steps would be required to dispose of the proceedings.

Pursuant to the Court of Appeal order, the matter was listed for a hearing on 5 June 2024 but was adjourned on that date to 20 June 2024 due to W’s non-attendance.

Hearing

On 20 June 2024, the parties’ positions were as follows: neither W nor H were seeking any orders, and although Level were highly critical of H (who pointed the finger of blame at his previous legal team) they realistically accepted that they could not seek any substantive relief and all that remained (other than costs) was to bring the proceedings to an end as appropriate.

Held

Level’s interest in the proceedings was principally to make submissions on any proposed consent order. Level is not entitled to seek financial remedies orders as between H and W. The court could only make distributive orders (whether by consent or otherwise) as between H and W, on application made by either or both of them. It cannot make a distributive order upon application by Level, so as to require H to pay W such sum as Level is entitled to.

In default of any application for financial remedies the options were ([32]):

1. To adjourn the financial remedies application, which would build in delay and further cost and would take matters no further forward.
2. To dismiss the financial remedies application, which in itself was a form of financial remedies order and would require an evaluation by the court of the s 25 criteria which neither party invites the judge to undertake.
3. To make ‘No Order’ and provide for W to withdraw her application. That would bring the proceedings to an end. It would enable either party at some point in the future to resurrect the claims and invite the court to make an order; there was no time bar to such applications as was made clear in Wyatt v Vince [2015] UKSC 15.

Outcome

1. The preferable and unopposed course was to make ‘No Order’ and for W to withdraw her application.
2. Any application for financial remedies by H or W in the future must be issued afresh.
3. If there is a fresh application, Level will automatically be joined as intervenors, and the application must be served on them.
4. The court will consider at the first available opportunity thereafter whether Level should remain as Intervenors, and, if so, the scope of the intervention.