The recent case of Wyatt v Vince, around a financial settlement claim, decided by the Supreme Court on 11 March 2015, has attracted widespread media attention, with public opinion – it would seem – almost wholly on the side of the husband, Dale Vince.
The Supreme Court was considering an appeal by the wife, Kathleen Wyatt, who wanted to apply against Dale for financial provision 30 years after they separated. The first instance judge, Nicholas Francis QC, sitting as a deputy judge of the High Court, had decided that her claim should proceed, and had timetabled it briskly to a three day final hearing. The Court of Appeal overturned that decision, suggesting that Kathleen’s application was an abuse of process. Kathleen appealed, claiming that the court had no power to throw her application out.
Kathleen and Dale had met in 1981, when they were both living as hippies. Kathleen already had a little girl – Emily – from a previous relationship, but Kathleen and Dale got married and Emily was treated by Dale as a child of the family, which means of course that he assumed financial responsibility for her. They went on to have their own baby – Dane – but things didn’t work out, and they separated after only about two years of marriage. The children (Dane only a baby) stayed with Kathleen. Dale embarked on life as a new age traveller, remaining in touch with the children, but essentially going his own way.
Kathleen received no financial support from Dale save for – in later years – sporadic cash gifts. The extent of those gifts is yet to be tested in evidence, but it seems clear that no orders were ever made for him to pay maintenance. On the contrary, in 1992, an order for nominal maintenance was made, and the following year the Child Support Agency made a nil assessment. The truth is that he had not the means with which to do so. They were both dependant, to a very large extent, on state benefits.
Indeed, Kathleen and the children lived in poverty. Moving from Sunderland to Gloucestershire to be closer to Dale, she was housed by the local authority, and was eventually able to buy her house under the right to buy provisions. She still lives there, although it would not appear to be a desirable residence. In 2010 it was subject to a Hazard Awareness Notice, and was said to have no heating, no hot water in the kitchen and to be suffering from damp. Kathleen suffers from ill health now, and although she has worked sporadically in low paid jobs, she is primarily dependant upon the state.
… to Riches
Meanwhile, Dale had a happier ending. In the early 1990s, he embarked upon the venture that would eventually bring him unlimited wealth in the renewable energy sector. By the time Dane was 30, he had, with two partners, formed a limited company whose net pre tax profit the following year was £236,000, doubling over the next three years. By 2011, when Kathleen issued her financial claim, the value of Dale’s company was “at least” £57m. He was living, with his second wife and their small son, in a castle overlooking Stroud. You’ve seen the pictures of him all over the media. Healthy, groomed, slim, expensively dressed.
Kathleen appears somewhat in contrast. Overweight, tired and pale, wrapped in a padded coat. She still has Emily living with her. Emily is said to have “difficulties” which mean that she is likely to remain living with Kathleen, although she is now 36 and has a small daughter of her own. Kathleen had two other children after Dale left, and they are now aged 21 and 18, and still live at home. Dane left when he was 18, when he went to live with his father, and has remained there ever since, working in his father’s business.
Why the delay?
It’s unclear why – 30 years after they separated – Kathleen finally issued her application for financial support. She tried in the past: in 1992 she applied to the magistrates’ court for maintenance, but succeeded only in achieving the nominal maintenance order referred to above; the following year she applied to the CSA and got nowhere; in 1994 she consulted solicitors, but got nowhere; likewise in 1996. The delay between 1996 and 2011, when she finally issued her application, is yet to be explained.
In December 2012, the High Court judge not only allowed her claims to proceed, but ordered Dale to pay £125,000 towards her costs (both incurred and ongoing). By the time the Court of Appeal had reversed that decision, Kathleen’s solicitors had already billed £88,000, and Dale had paid the full £125,000. He wanted £32,000 back. It has been said in the media that the costs in the case now total £500,000, which seems a shame on many levels. Kathleen herself could probably have made good use of that money, and Dale, meanwhile, might have avoided the litigation and attendant publicity. However, the Supreme Court described him as “litigious”, so perhaps he would rather spend the money on lawyers. He certainly accepts that he has enough money to satisfy any reasonable award the court may make in Kathleen’s favour.
What’s it all about then?
I digress. The media frenzy arises from a misunderstanding about the true nature of the Supreme Court’s decision. Once you strip out the fabulous wealth, the tale of rags to riches, the colourful past and the Dickensian house in Monmouth, there is nothing, save for a tiny little rule which applies to family proceedings, and which, the Supreme Court decided, means that a party may not apply for summary judgment on an application for financial provision.
What does this mean? It means simply that the High Court judge did not have the power to strike out Kathleen’s claims (even if he had wanted to), and likewise, the Court of Appeal did not have the power to do so. Parliament, said the Supreme Court, had deliberately altered the corresponding provisions in the Civil Procedure Rules (which apply to general litigation, rather than to family proceedings) so that summary judgment cannot be given in a divorce.
This is not to say that a claim cannot be struck out. It can, but only if it discloses no reasonable grounds for bringing the application, or it is an abuse of process. If, for example, a claim discloses no facts, or the facts are incoherent and nonsensical, or the facts do not disclose any legally recognisable application, then it might be struck out on the basis that it discloses no reasonable grounds. A claim which is frivolous, vexatious, scurrilous or obviously ill-founded might be struck out on the basis that it is an abuse of process.
This is not the same however as striking out a claim on the basis that it has no reasonable prospect of success, which is what Dale’s lawyers argued for. When someone applies for financial provision on divorce, the court is required to take into consideration the factors set out in section 25 of the Matrimonial Causes Act 1973. Section 25 requires the court to take into account all relevant factors, including the ages of the parties, the length of the marriage, the standard of living enjoyed by the parties during the marriage, their needs, resources and contributions. The court’s discretion is wide and flexible, and it is able to deliver bespoke justice according to the facts in each individual case. Indeed, it must do so. Thus, if Dale’s lawyers had succeeded before the Supreme Court, they would have paved the way for summary decisions to be made, in direct contravention of the family courts’ statutory duty to consider all relevant factors. Decisions made in this way, said the Lords, would be unlawful.
And they all lived happily ever after …?
So where does this leave Kathleen? Practically speaking, she is back to where she was in December 2012 in that she is allowed to proceed with her application for financial provision. In the meantime, of course, the parties’ costs have escalated out of all proportion to the likely value of her claims.
Kathleen puts her case on the basis of need. She says she needs £1.9m with which to buy a house and provide an income fund. Although the Supreme Court was not determining the value of her claims, it dismissed this possibility, suggesting that a modest, mortgage free house would be sufficient. It warned against treating a wealthy ex-spouse as “an insurer against all hazards”. It nonetheless recognised her contribution in the past in terms of bringing up the two children of the family in difficult circumstances, and with little support from Dale (even after he achieved the means which would have enabled him to provide generously for them). After all, if she hadn’t done that, would Dale have been able to concentrate on the business which made him so wealthy?
So yes, rags to riches it was – for Dale anyway. It remains to be seen whether Kathleen gets her happy ending after all. Part of that happy ending might include some public recognition of the value of the contributions she made whilst Dale, as he puts it, “moved on”.