In a recent case where I was acting for a husband, I applied to strike out the application of his former wife to set aside a financial order notwithstanding the case of Vince and Wyatt [2015] 1 FLR 972 where the House of Lords confirmed that the Family Court does not have jurisdiction to summarily assess cases even where an application has no real prospect of success.  However, the application of the case of Barder v Barder (Caluori Intervening) [1988] AC 20 led the Judge to order that the former wife’s application was “obviously ill founded”.  The former wife’s set aside application was therefore struck out as an abuse of process and my client’s costs were awarded in full with no reduction whatsoever.

The case involved the former wife making an application to be reimbursed the funds which she claimed were to be “earmarked” by the husband for school fees in circumstances where she claimed the husband had taken children out of private education without consulting her and in breach of the Order.  The Order had included a recital stating that the husband agreed to be responsible for school fees at such schools as the children may from time to time attend.

The husband made it clear that the reason for the children’s change in school was entirely child focused.  Their local state school was closer to their home and both children had found the academic pressure in the fee paying school too demanding.  The husband had fully consulted his former wife in the decision that was made and she showed no objection at the time that the children moved from their private school to the local state school.  Importantly, however, the Order did not state that the children must attend fee schools; it merely required the husband to pay any school fees which were payable.  There was therefore no obligation to “earmark” any funds and there was no justification whatsoever for reopening the capital settlement.

Under Rule 3.4 of the Civil Procedure Rules, a strike out application can be made if the statement of case is “an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings”.  This provision is set out also at Rule 4.4(1)(b) of the Family Procedure Rules.  However, whilst the Civil Procedure Rules grant Civil Courts the additional jurisdiction to summarily assess applications that have no real prospect of success, the Family Procedure Rules are silent on this point.

In 2015, the case of Vince and Wyatt clarified that the omission of this power from the Family Procedure Rules is deliberate.  How then can an application be struck out as “an abuse of process” in the Family Courts?

In my case, the former wife’s application was made pursuant to Family Procedure Rules 2010 Rule 9.9A and required consideration of the four conditions set out by the House of Lords in the Barder case.  Those four conditions as set out in the Barder case are as follows:

The first condition is that new events have occurred since the making of the Order which invalidate the basis, or fundamental assumption, upon which the Order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. 

The second condition is that the new events should have occurred within a relatively short time of the Order having been made.  While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. 

The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. 

To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases.  That fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order”.

It would have been sufficient for the husband to prove that just one of the above conditions was not satisfied although in fact the husband invited the Court to consider that the former wife failed to satisfy several of the Barder conditions.  Indeed, the former wife’s application failed to satisfy three of the four Barder conditions and it also fell short of two essential pre-conditions to any set aside application i.e. that the “new event” is not foreseeable and that the case is highly exceptional.  The husband drew the Court’s attention to its duty to intervene to stop unmeritorious litigation at the earliest stage possible and the Judge concluded, at the end of the hearing, that the former wife’s application was indeed an abuse of the Court’s process.  He ordered that the first three of the Barder conditions were “obviously not met and that the former wife’s attempt to come within them was ill-founded”.  Her application was therefore struck out accordingly and the husband was awarded all of his costs.

It is good to be reminded that the Court will recognise the importance of finality in matrimonial proceedings and will readily strike out set aside applications which are simply attempts to “have another bite of the cherry”.

Is Arbitration the answer?


The author of this article is Emma Harte.