PRESS RELEASE Dale Vince v Kathleen Wyatt

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1 8 May 2013 PRESS RELEASE Dale Vince v Kathleen Wyatt FOR IMMEDIATE RELEASE The Court of Appeal has today delivered a ground breaking judgment in favour of Dale Vince, founder of green energy business Ecotricity, striking out a financial claim brought by his ex-wife, Kathleen Wyatt, 28 years after the couple separated in 1984 and 20 years after their divorce in Mr Vince was represented by Davina Hay and David Greer of Schillings. 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 November 2012 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 of 125,000 to bring the claim against him - in addition to funding his own legal costs of defending the claim. The decision breaks new legal ground. The application to strike out Ms Wyatt s claim was brought by Schillings under rules introduced in 2010 on which there was no prior authority. 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, which he founded. In a unanimous judgment, the Court of Appeal found that Ms Wyatt would not be entitled to any financial provision from Mr Vince now and struck out her claim as an abuse of process. Mr Vince s solicitor, Davina Hay, Head of the Family Department at Schillings, said: This was an ill-conceived claim which should never have been brought. 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 1 of 6

2 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, one of the most senior Appeal judges, 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 He is not her insurer against life s eventualities. In a concurring judgment, Lord Justice Jackson said: in 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. Lord Justice Tomlinson agreed with both judgments. Head of the Family department at Schillings, Davina Hay, who acted for Mr Vince in this litigation, said: My client was placed in an extremely unenviable position during these proceedings: either give in to his ex-wife s demands or face the Kafka-esque prospect of a trial in which he was funding her lawyers as well as his own and yet had no prospect of recovering his own legal costs from her even if he won. The Court of Appeal has recognized the injustice of that situation and it is a credit to Mr Vince that he had the resolve not to capitulate but instead bring this unprecedented application to strike out the claim entirely. He has the justice that he much deserves. All three judges also found that Mr Vince 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, Mishcon de Reya, a sum which Mr Vince can now expect back. 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: 2 of 6

3 if 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. Davina Hay, Head of the Family Department at Schillings, said: Mr Vince s landmark judgment makes it clear that in this age of austerity judges should take a robust view and prevent hopeless claims from clogging up an already over burdened court system. It is also a beacon of light for divorce lawyers who recognise that the Family courts in England and Wales tend very much to look after wives: this is a welcome judgment in redressing what is so often a very raw deal for husbands on divorce. - END For further details, please see the Notes to Editors on pages 4-6. Issued by: Please direct any further enquiries to the solicitors with conduct of the matter: Davina Hay David Greer Partner and Head of Family Senior Associate of 6

4 NOTES TO EDITORS 1. Dale Vince (51) and Kathleen Wyatt (53) married in December At the time both were receiving state benefits. They had a child in May 1983 and separated in February Their marriage lasted less than 3 years. 2. Following their separation Mr Vince became a new age traveler and lived as a traveler in Spain and England until He had a long term relationship with a new partner and they had a child together. 3. 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. 4. Ms Wyatt had a relationship with another man with whom she had children in 1993 and Mr Vince married his current wife in 2006 with whom he has a son. 6. It is unclear whether any financial orders were made at the time of the divorce in 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. None of the solicitors involved had been able to clarify what happened at the time. 7. From humble beginnings providing wind powered telephones at Glastonbury in the early 1990s Mr Vince erected his first commercial windmill on a hill in Nymsfield, Gloucestershire in In the same year 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. 8. Ms Wyatt notified Mr Vince, via her solicitors, that she was seeking a financial order against him in March 2012 (i.e. 28 years after they separated and 20 years after they divorced). Mr Vince instructed Schillings to defend against the claim. Ms Wyatt sought a lump sum to purchase and furnish a new home and capitalized lifelong maintenance. The case was transferred from Gloucester County Court to the High Court. 9. There is no statutory time limit for a party to a marriage to bring a claim for a financial order. There is no statute of limitations as there is in the context of civil claims (e.g. personal injury claims must be brought within 3 years and a claim for breach of contract within 6 years). Someone who has re-married cannot bring a claim against a former spouse but the fact that a former spouse has re-married does not prevent a claim being brought against them. 4 of 6

5 10. My Wyatt advanced a number of reasons for her delay in bringing a claim including that she was badly advised by four different solicitors before she instructed Mishcon de Reya. 11. Having issued her claim, Ms Wyatt, who continues to receive state benefits applied for an order for interim maintenance against Mr Vince to fund her legal costs of bringing her claim against him. An order for interim maintenance to meet legal costs is known as an A v A order after the first case in which such an order was made. A v A orders are routinely made in divorce proceedings where one party to the marriage (usually the wife) has no other means to fund her legal representation and the other party (usually the husband) has the means to pay. Ms Wyatt s solicitors had been acting for her on the basis that she would pay her costs from whatever she recovered from Mr Vince in the proceedings. 12. Having reviewed Ms Wyatt s claim, Mr Vince made an application to strike out Ms Wyatt s claim under Rule 4.4 of the Family Procedure Rules 2010 which provides that the court may strike out a statement of case if it appears to the court: (a) That the statement of case discloses no reasonable grounds for bringing or defending the application; (b) That the statement of case is an abuse of the court s process or is otherwise likely to obstruct the just disposal of the proceedings. 13. The rule was first introduced in family proceedings in This is the first reported case in which it has been used. 14. Both applications (Mr Vince s strike out application and Ms Wyatt s application for legal funding) were heard in on 13 and 14 November 2012 by Nicholas Francis QC sitting as a Deputy High Court judge. The judge gave judgment on 14 December He declined to strike out Ms Wyatt s claim on the basis that the prejudice to her in denying her the right to bring the claim outweighed the prejudice to Mr Wyatt in having to defend the claim after such a long delay. He ordered Mr Vince to pay 125,000 to Ms Wyatt s solicitors to enable her to bring her claim to a trial which had been due to take place over 3 days in March this year. 15. On 17 January 2013 Mr Vince appealed both orders on grounds including: (a) that the Judge had failed to consider properly whether the delay in the claim being brought was itself a good reason for striking it out; 5 of 6

6 (b) that the Judge had failed to properly take into account the inherent weakness of Ms Wyatt s claim given that neither party had any money during the marriage and both had formed new relationships since divorcing; (c) that the judge should not have order Mr Vince to fund Ms Wyatt s lawyers because her claim was a weak one and she might be awarded nothing at, leaving Mr Vince unable to recover his costs from her at trial. 16. The appeal was heard on 11 April by Lord Justice Thorpe, Lord Justice Jackson and Lord Justice Tomlinson. 17. The Court of Appeal concluded that the Judge had been wrong not to take into account the inherent weakness of Ms Wyatt s claim and that in view of the pressure on the court system he should have used his powers eradicate a hopeless claim. 18. The Court of Appeal also concluded that the A v A order to fund Ms Wyatt s legal costs should not have been made because Mr Vince might well defeat her claim at trial but then be unable to recover his legal costs even if he won. 19. Lord Justice Jackson compared the power to strike out cases in the Civil Procedure Rules with the power in the Family Procedure Rules. He concluded that the family courts should adopt the same broad approach as has been adopted in civil proceedings. The courts should not allow claims (a) brought many years after the divorce and (b) which have no real prospect of success to be brought. 20. Ms Wyatt s claim against Mr Vince has been struck out and she will not be able to bring any further financial claim against him. 6 of 6

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