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Cite as: [2014] EWCA Civ 655

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Neutral Citation Number: [2014] EWCA Civ 655
Case No: B6/2013/1642


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and -



Miss Lynsey Cade-Davies (instructed by Gordon Dadds) for the Appellant
Miss Sarah Edwards (instructed by Hadfields Butt & Bowyer) for the Respondent
Hearing dates: 29th January 2014



Crown Copyright ©

    Lady Justice Black :

  1. On 14 November 2012, Mrs Price's divorce petition was issued. It was a behaviour petition based upon Mr Price's alleged profligacy with money. It was served on Mr Price in the normal way. Mr Price returned to the county court an acknowledgment of service form, dated 30 November 2012, in which he indicated that he intended to defend the divorce. However, no answer from him ever reached the court file or, it appears, the court building. It is common ground, therefore, that for the purposes of the rules, no answer was filed.
  2. On 24 January 2013, Mrs Price applied for decree nisi on the basis that the petition was undefended. On 29 January 2013, the county court certified that Mrs Price was entitled to a decree and to an order that Mr Price pay her costs. The pronouncement of the decree was listed for 18 February 2013.
  3. On 14 February 2013, Mr Price (who was acting in person) applied for that hearing to be vacated and for the certificate of 29 January 2013 to be set aside. He said in his application notice that an answer dated 12 December 2012 had been posted on 12 December 2012. In the normal course of things, that would have reached the court in time, the case would have been treated as defended, and no certificate would have been granted. As it appeared that the court did not have any record of an answer, Mr Price also applied for leave to file an answer out of time.
  4. The papers were put before His Honour Judge Oliver who adjourned the pronouncement of decree nisi to 4 March 2013. He listed the case before a district judge on 28 February 2013 for consideration of the question of the answer and for directions.
  5. On 28 February 2013, there was a short hearing before District Judge Burgess, at which Mr Price appeared in person. The district judge dismissed Mr Price's application and ordered Mr Price to pay Mrs Price's costs of it, summarily assessed at just over £1,500. By way of reasons, he said:
  6. "The application is dismissed. The reason is that I am not satisfied that an answer was filed in time. The marriage has plainly irretrievably broken down."
  7. These short reasons need to be read in the context of the exchanges that immediately preceded them in which it can be seen that Mr Price was saying that he had sent his defence to the court and the district judge responded that documents were date-stamped and logged when they were received at the court and that as there was no document on the court file and no log of it, as far as he was concerned it had not been filed.
  8. Mr Price, still in person, appealed against the district judge's order to Judge Oliver. The pronouncement of decree nisi was stayed pending the determination of the appeal.
  9. On 28 May 2013, Judge Oliver dismissed the appeal. He pronounced decree nisi of divorce and ordered Mr Price to pay Mrs Price's costs assessed at just over £2,500.
  10. Mr Price then appealed to this court with permission of Lewison LJ. His objective remains to file an answer and defend the divorce proceedings. It seems that not only does he dispute much of what is set out in the petition, he also wishes to stay married and thinks that it can work.
  11. The law

    Case law

  12. In Nash v Nash [1968] P 597, the Divisional Court considered the circumstances in which a decree nisi should be set aside to enable a spouse who had not filed an answer prior to the grant of the decree to defend the divorce. It was, of course, a decision under the old divorce law and well before the special procedure which now applies to divorces but it is the nonetheless the source of the modern approach. The court looked back over some of the previous authorities and identified three classes of case, as follows:
  13. i) Where the applicant knew nothing about the divorce. In that case, he would get a rehearing of the suit almost automatically.

    ii) Where the applicant knew all about the divorce and chose not to defend but later changed his mind. That applicant would have to convince the court that on the evidence before the court as a whole, it was more probable than not that the decree was obtained contrary to the justice of the case.

    iii) Where the applicant was aware of the proceedings and anxious to defend but, through ignorance or lack of full advice, was unaware of the necessity of taking procedural steps in order to preserve his position and had no knowledge of the actual divorce hearing until after it had taken place. In this type of case, the court would not automatically or almost automatically grant a rehearing but on the other hand should not require to be satisfied that if there were a rehearing a different result would be more probable than not. It would be necessary and sufficient that the applicant satisfied the court that he had a case which he wished to put forward and which, if accepted, might well lead to a different result. The court was not bound to accept the applicant's affidavit at its face value but on the other hand should not attempt to make any such investigation of its truth as would be appropriate at the hearing of the suit.

  14. It was the husband in Nash who was seeking a rehearing. He had signed an acknowledgment of service and his solicitor applied for legal aid so that he could defend. After a period of some weeks waiting, the wife's solicitor notified the husband's solicitor that he was applying for a registrar's certificate with a view to setting the case down. The case was heard and a decree pronounced. When the husband learned of it, he applied to have the decree set aside and a rehearing ordered so that he could defend the suit and his application was granted. The case was said to fall into the third category and the court took the view that the husband had shown that he had a case which he wanted to put before the court and which, if accepted, might well lead to a different result from the first hearing.
  15. Our attention was invited to three cases reported at the start of the 1980s. By now, the special procedure was in existence. Day v Day (1980) 1 FLR 341 established that under the special procedure, the process of adjudication had been transferred from the judge to the registrar (as it then was) and that if the registrar had given a certificate, the certificate had to be set aside before leave could be given to file an answer out of time. It was held that the application should be dealt with on the same lines as an application for a re-hearing after decree nisi under the former procedure.
  16. Day v Day was itself an example of the second class of case described in Nash, with the focus of the court being on whether the decree would have been obtained contrary to the justice of the case in the event that no relief was given. The husband had been served with an initial petition to which he had failed to respond with a notice of intention to defend and an answer despite having ample opportunity because, as Ormrod LJ put it, he was "hoping, like the ostrich, that if he kept his head down the threat of divorce would go away". Following the re-service of the petition thereafter, he must have understood that the wife was intent on divorce and, having filed a notice of intention to defend, had ample time to file an answer before directions were given but did not do so. In the circumstances, the court did not "think that the justice of the case requires that there should be a re-hearing or that he should now be permitted to defend the wife's suit for divorce".
  17. I have said that Day was an example of the second class of case described in Nash because I think it is properly so characterised, given what was said about it by Cumming-Bruce LJ in Mitchell v Mitchell [1984] FLR 50 at 56. However, it was in fact to the earlier case of Owen v Owen [1964] P 277 that the court in Day went for its starting point in formulating the principles that should be applied to such a case. Ormrod LJ drew from Owen that the application should be refused unless there were "substantial grounds for the belief" that the decree was obtained contrary to the justice of the case whereas in Nash, the court had cited from Owen but then settled on the slightly different formulation that for the applicant to succeed, he had to convince the court that it was "more probable than not" that the decree was obtained contrary to justice of the case (see Sir Jocelyn Simon's agreement at page 601/602 of Nash with the obiter dictum of Davies LJ in Stevens v Stevens [1965] P 147).
  18. Nash and Owen were both Divisional Court cases and in both Sir Jocelyn Simon P was a member of the court, although the High Court judge with whom he sat in each case was different. I have concluded that the slightly different formulation in the two cases was probably unintentional. In any event, in Day the court proceeded to develop the position, commenting that the analogy with an application for a re-hearing after decree nisi had been granted under the former procedure was not wholly accurate.
  19. Ormrod LJ observed that in some respects a respondent is less favourably placed under the special procedure than under the previous procedure and too rigid an approach may cause injustice, especially now many people would have to act in person. He particularly remarked upon the lack of notice that a respondent had under the special procedure of the registrar proceeding to give a certificate, with the first he knows of it being receipt of the date for the pronouncement of the decree. He said that the handicaps had to be borne in mind in considering whether to grant an application by a respondent and "may have an important bearing on whether the justice of the case requires that he be given, in effect, leave to defend" (page 346).
  20. It is interesting to note that when setting out in Moosa v Moosa (1983) 4 FLR 131 the principle that emerged from Day, Ormrod LJ used phraseology that was slightly different again, saying:
  21. "the principle was laid down that once the registrar's certificate has been granted under the special procedure, the situation is analogous to the old situation where a decree nisi has been pronounced in an undefended suit and that the same principle ought to be applied, namely that the certificate should not be set aside unless it is shown that there is a prima facie case for thinking that the decree has been obtained contrary to the justice of the case. That means the onus is on the applicant who is seeking leave to file an answer out of time, to show that there is a reasonable chance of defending the case successfully." [my italics]
  22. These variants in the terminology suggest strongly to me that there cannot have been any intention to set up a rigid test that was to be applied to the letter. Trying to express matters in layman's language (and emphatically not attempting to set up yet another test), I would say that the impression that is conveyed is that there needs to be a real look of injustice about the case, whether one speaks of a) a prima facie case for thinking the decree would have been obtained contrary to the justice of the case if relief is not given, b) substantial grounds for the belief that that would be so, c) it being more probable than not that it would be or d) there being a reasonable chance of the respondent defending the case successfully.
  23. In Moosa the wife had given notice to defend the husband's petition but not filed an answer. She applied for legal aid but the certificate was not received until nearly 5 months later. Meanwhile, the registrar had granted a certificate. The wife's application for the certificate to be set aside and for leave to file an answer out of time was unsuccessful. The judge, on an appeal from the registrar, heard evidence from the wife and concluded that he found it "very hard to believe that this wife does not accept that the marriage has broken down in the light of what we have heard. The overwhelming probability is that if this case was fought the petitioner would succeed in getting a decree". The Court of Appeal took this to be an application of the decision in Day. Ormrod LJ said that the Court of Appeal had practically nothing to go on except affidavits by the wife which were bare denials,
  24. "but, more to the point, the judge in this case, to whom is entrusted primary responsibility for dealing with these matters, has decided to dismiss the appeal. He had the opportunity of hearing both sides, unlike the registrar. The conclusion that he reached was plainly open to him and, for my part, I would dismiss the appeal."
  25. The third case in this clutch is Mitchell v Mitchell [1984] FLR 50 in which there appears to have been a rather fuller citation of the authorities than in Day and Moosa.
  26. In Mitchell, the husband failed to file an answer in time and the wife's solicitors applied for a registrar's certificate which was given. Notice was given to both parties' solicitors of the date for the pronouncement of decree nisi. The husband applied to have the certificate set aside and for leave to file an answer out of time. He had been confused and was under the impression that by contesting the injunction applications made against him, he was also contesting the divorce, and his solicitor had mistakenly failed to take specific instructions about defending the case until it was too late. He denied that the marriage had irretrievably broken down and said that he and the wife had maintained friendly relations, including sexual relations. His detailed response to the wife's allegations of unreasonable behaviour in his draft answer was in some respects straight denial whereas in others he pleaded affirmatively, by way of explanation, confession and avoidance, facts which if proved would make it most unlikely that a decree would be granted on the basis of unreasonable behaviour. His application was granted. The Court of Appeal adopted the Nash categories, which is what led me to treat them as the source of the modern law rather than Owen. It determined that the husband's case fell within the third category, held that the test set out in Nash for that category of case was correct and applied it.
  27. Lawlor v Lawlor [1995] 1 FLR 269 is another example of a Court of Appeal decision relating to the third Nash category and represents, I think, a development of the approach to such cases.
  28. The wife there had filed an acknowledgment of service indicating her intention to defend but by an oversight her solicitors had failed to file an answer in time. 8 or 9 days later, an application for leave to file an answer out of time was sought. The district judge refused it and his decision was affirmed by the judge but overturned by the Court of Appeal which was dealing with the case in the unfortunate context of a decree absolute already having been granted because the proceedings had continued notwithstanding the appeal. Noting that the judge and the district judge had both considered the merits of the answer and its prospects of success, the Court of Appeal said that that was not the right approach at such an early stage of the pleadings. The fact that the wife might lose and that her view of the possibility of reconciliation might be misguided were not good reasons for preventing her side of the case from being heard, nor could it be assumed that a person defending a divorce petition was out to cause trouble. The court observed that we do not yet live in a period of no-fault divorce and that serious allegations had been made in relation to the wife's behaviour against which she was entitled to defend herself. It considered that the refusal to give the wife leave to do so was a denial of justice.
  29. The authorities referred to in the judgment of Butler-Sloss LJ (not yet the President of the Family Division) were Moosa (above) and Spill v Spill [1972] 1 WLR 793 (below) which the court distinguished on the basis that the circumstances were "quite different". Butler-Sloss LJ drew a distinction between an answer a few days out of time and an answer very considerably out of time and classed the delay in Lawlor as "minimal" and not prejudicial to the husband. She said that in the circumstances of Lawlor, it would be "usual" for an answer to be permitted and:
  30. "Indeed, I would go so far as to say that leave should be given unless the contents of the answer were such as to be considered an abuse of the process of the court, such as [sic] frivolous, irrelevant or such as to justify an application to strike out the pleading."
  31. The final authority dealing directly with the question of leave to file an answer out of time to which we were referred was Spill. This was essentially a decision that turned on its own facts and there is little in it to assist in the present case. It was an example of the second category of case. The husband had stated in his acknowledgment of service that he did not intend to defend then changed his mind. He had not provided an affidavit explaining why that was and why the court should exercise its discretion in his favour. The impression formed by the court was that it was merely a tactical device in order to secure some benefit which he thought he might not obtain if the case was undefended and his application was not permitted.
  32. Family Procedure Rules 2010 (FPR 2010)

  33. The authorities to which I have just made reference derive from the pre-FPR 2010 era. Indeed, the majority date from before even the Family Proceedings Rules 1991.
  34. Miss Cade Davies for Mr Price argues that the provisions of Rule 4.6 FPR 2010 which deals with relief from sanctions should have been taken into account in this case. Miss Edwards for Mrs Price does not dissent from the proposition that the provisions of that rule are relevant; her argument is that the judge did not need to refer to it explicitly and that his decision sufficiently took its provisions into account.
  35. I agree with what therefore appears to be the common view of counsel that the jurisprudence in relation to the sort of application with which we are dealing here has been supplemented by Rule 4.6 and that its provisions should guide the exercise of the judge's discretion as well as the decided authorities.
  36. It provides that:
  37. "4.6 Relief from sanctions
    (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
    (a) the interests of the administration of justice;
    (b) whether the application for relief has been made promptly;
    (c) whether the failure to comply was intentional;
    (d) whether there is a good explanation for the failure;
    (e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
    (f) whether the failure to comply was caused by the party or the party's legal representative;
    (g) whether the hearing date or the likely hearing date can still be met if relief is granted;
    (h) the effect which the failure to comply had on each party; and
    (i) the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.
    (2) An application for relief must be supported by evidence.
  38. The equivalent provision in the CPR 1998, Rule 3.9(1), has been amended but there has been no corresponding amendment to Rule 4.6.
  39. Judge Oliver's judgment

  40. Judge Oliver confirmed in his judgment that there remained no trace of an answer in the court records, paper or electronic, and expressed himself satisfied that there was no such document in the building (§§8 and 16 of the judgment). He said he had asked Mr Price for evidence that the answer was sent to the court such as "proof of posting, copies of any letters which might have been sent supporting it, any note written on the top of it to indicate that it had been sent" but that Mr Price said that none of these steps had been taken (§9) and that he was not able to show the court any independent evidence that he sent the document in (§11). Mrs Price's counsel argued that it was apparent from what was said in the answer that it post-dated 12 December 2012 but the judge did not accept that (§10) so there was nothing in the terms of the answer to help him. The judge did not refer to any other features which might serve as a guide to whether the answer was in fact sent.
  41. There was some debate before the judge as to when the answer should have been filed. There still is. Miss Cade Davies argues on behalf of Mr Price that the answer should have been filed by 27 December 2012. Miss Edwards argues that the due date was 19 December 2012. The judge considered that he did not need to resolve the issue and he took Mr Price's date for the sake of argument. That was a sensible approach and it seems to me that we can also deal with the appeal without resolving this particular dispute; if Mr Price sent the answer on 12 December 2012, it should have been received well within time whoever is right about the due date. It is futile to argue about whether the answer was or was not late by an extra fortnight when the real issue is whether it was sent or not and whether Mr Price acted with expedition once he knew it had not been received.
  42. Judge Oliver distinguished Lawlor on which Mr Price wished to rely in support of his application for leave to file his answer out of time. He placed reliance on Moosa to which Mrs Price's counsel referred for the proposition that a certificate under the special procedure was tantamount to the pronouncement of a decree nisi and could not be set aside unless it was shown that the decree had been obtained contrary to the justice of the case and that there was a reasonable chance of a successful defence.
  43. Judge Oliver concluded that the district judge had provided Mr Price with a fair hearing and applied the law correctly and that it was right for him to have decided "on the evidence available to him that there was no answer". Indeed, it seems that Judge Oliver himself concluded that no answer had been sent, albeit that he had no more material on which to do so than the district judge had had. This is what I understand him to be saying in the concluding sentences of §17 of his judgment which read:
  44. "What he has to do is send in the documents. We do not think that he did."
  45. The judge looked at the merits of the proposed defence to the divorce and concluded that a decree would be granted even on the limited concessions that Mr Price made about his behaviour. He thought that it was "wholly impossible that there is a reasonable prospect of success in defending this petition" (§18). He appears to have based this on his understanding that Mr Price accepted certain of the allegations made in the petition which were, the judge thought, sufficient on their own to amount to unreasonable behaviour. The allegations were:
  46. i) that the money was transferred into his name when the house was sold;

    ii) that he did this against Mrs Price's wishes;


    iii) "that he placed the investments in high risk".

  47. Accordingly, there being no merit in the answer, the judge took the view that there was no reason to allow it to be filed out of time and dismissed the appeal.
  48. The grounds of appeal

    Grounds of appeal

  49. Miss Cade Davies argues that Judge Oliver too readily concluded that Mr Price had not attempted to file an answer and wrongly upheld the District Judge's finding to this effect. Leaving aside Mr Price's own account, there was nothing to serve as a guide as to what had happened apart from the absence of an answer on the court system. She submits that there should not have been a finding that Mr Price did not post the document, which was tantamount to a finding of dishonesty on his part, without Mr Price having the opportunity to give oral evidence on the subject. This did not happen as both the hearing before the judge and the hearing before the district judge proceeded on submissions only and Mr Price did not have the opportunity to give oral evidence on the subject.
  50. She relies upon the problems inherent in the Rule 7.20 FPR 2010 procedure which gives the respondent no notice that the matter is proceeding as undefended and therefore does not alert him to the fact that the court has not received his answer.
  51. She also criticises the judge for failing to have regard to the Rule 4.6 factors which would have led to a different exercise of his discretion.
  52. Stressing that Mr Price took action, on his case, as soon as he knew there was a problem over his answer, she argues that Lawlor was in fact a pertinent authority and that permission should, as the court there decided, have been given to file an answer out of time unless the answer was an abuse of process which it was not here. In terms of the various authorities, she argues that this is a case in the third category of case and that the proper approach was to look to see whether Mr Price had a case which he wished to put forward and which, if accepted, might well lead to a different result.
  53. She argues that the judge was wrong to conclude that there was no merit in the answer Mr Price wished to file. In fact, she says, Mr Price did not accept the allegations that the judge found he accepted, either denying elements of them or providing the context which may prevent the conduct in question being a proper foundation for a finding that he had behaved in such a way that Mrs Price could not reasonably be expected to live with him.
  54. Discussion

  55. I have absolutely no doubt that the hearing before the district judge was too robust. Mr Price did not have a proper opportunity to put his case that he had posted the answer to the court and that it must have got lost along the way.
  56. Miss Edwards submits that by virtue of Rule 22.7(1) of the FPR 2010, the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless otherwise required and argues that there was therefore no need for the court to hear oral evidence from Mr Price. I do not think Rule 22.7(1) assists greatly. It simply begs the question whether something other than a witness statement was required here.
  57. Miss Edwards criticised Mr Price for failing to provide any witness statement in support of his application and I will return to that below. However, she says, he had put detailed written submissions to the court and she submits that this gave him the necessary opportunity to convey what he wished to say. She says that the person who asserts a fact must prove it; the burden was therefore on Mr Price to prove that he filed the answer in time and he failed to discharge it. She says that such evidence as there was pointed to the probability that the answer was not sent and the judge was entitled to place weight on the lack of supporting evidence for Mr Price's assertion.
  58. I have looked at the application notice filed by Mr Price on 14 February 2013 which is very difficult to read. As Miss Edwards pointed out, Mr Price ticked the box which indicated that he did not see any reasons why the application should not be dealt with on paper by a judge. I think she would suggest that this tells us that his own view was that oral evidence was not required. However, I think Mr Price might have contributed something slightly different in answer to the next question where he indicated that there were reasons why the application could not be dealt with by telephone and set out a reason which is not wholly legible, at least in my copy.
  59. In any event, whatever Mr Price said on the application form, the fact was that the matter was not dealt with on paper but was listed for a hearing. Once the district judge was seised of the hearing, it was his responsibility to ensure that the parties had the necessary opportunity to establish their cases. I need not labour again the problems that arise where litigants are unrepresented and do not know the form but the reality is that they do not always understand the issues or the proper procedure and the judge inevitably bears a greater burden than would be the case with a represented litigant for ensuring that the hearing proceeds in an appropriate form.
  60. Here, in my view, it should have been recognised that the issue was, putting it baldly, whether Mr Price was telling the truth when he said that he had posted the answer. It did not follow inexorably from the fact that it had not apparently arrived at the court that he had not posted it. Nor, given that his case was that he simply put it in a post box without obtaining or generating any supporting records, could it be said that the absence of supporting evidence established that he was lying. It all depended on whether he was credible and, in the absence of independent material to assist the judge, he was not in a position to assess that without hearing Mr Price give evidence in the normal way. I note Miss Edwards' submission that the floodgates will open and the courts will be unable to find the time to hear oral evidence. I stress, however, that I do not intend this to be taken as a universal rule; my view depends on the facts of this particular case and other cases may give rise to different considerations and imperatives. Each case has to be dealt with fairly, depending on what the issues are.
  61. In my view, the position was not remedied at the hearing before Judge Oliver which was essentially a review of the district judge's decision and did not involve the giving of any evidence either, although it is fair to say that the transcript of the hearing reveals a sympathetic exploration of the issue by the judge with Mr Price.
  62. Mrs Price's respondent's notice raises a point in relation to the payment of the fee for the answer in support of her argument that the judge and district judge were right to find that it had not been posted. This did not feature in their judgments and I do not think it was put to Mr Price during either of the hearings below so that he could answer it. In the circumstances, it is difficult to see how it would be appropriate for us to rely upon it as material supporting the finding. The point is not entirely straightforward, in any event. Consideration of it led us to examine the form D8 which is sent to the respondent with a divorce petition. It assists him with the filling in of the acknowledgement of service, telling him that if he answers "Yes" indicating that he intends to defend the case,
  63. "you must file in the Court office an answer to the petition together with a copy for every other party to the proceedings. You must file your answer within 21 days after the time limit for giving notice of intention to defend has expired, which is in turn seven working days after the notice has been served on you.
    You will have to pay a fee. You can obtain details of the fee to pay and information about what to do if you cannot pay all or part of a fee from a county court office with matrimonial jurisdiction or the family administration branch of the Principal Registry of the Family Division."

    When one looks at this critically, it is apparent that there is nothing to tell the respondent that the fee has to be paid at the same time as the answer is filed. Why Mr Price did nothing about the fee was something that could have been explored with him in evidence but I do not think it is by any means a knock out blow for his account of events.

  64. Similarly, Mrs Price's assertion that Mr Price did not mention an answer to her or her solicitors would have to be established in evidence and explored with Mr Price before consideration was given to whether that told the judge anything about whether he had posted it.
  65. I said I would return to the absence of any witness statement from Mr Price for either of the hearings below, which has generated some criticism of Mr Price. There is no doubt that a litigant in his position should provide the fullest possible witness statement dealing with all the circumstances relevant to his or her application; in that way his or her case can be given proper consideration. Mr Price's failure to do this has to be seen in context however.
  66. As far as the district judge's hearing is concerned, the position Mr Price has taken throughout is that he did not know prior to that hearing that the district judge would look at the merits of his proposed answer, not appreciating that this might be a material consideration in determining whether the certificate should be set aside and he should have leave to file an answer. His case in relation to the petition was however set out in the draft answer which was available to the court and to Mrs Price. What he stated on his application form was what he seems rightly to have seen as centrally important to the application, that is that he had sent the answer on 12 December but the court held no record of it. He signed the statement of truth which, despite its inexact wording, may be thought to serve as confirmation of the truth of the facts on the application form. Apart from providing colour, for instance in the form of a description of the time he posted the document, which post box it went into, what the envelope looked like etc., it is difficult to see what more he could have said on that matter although it would have been helpful if he had set out in writing when and how he came to find out about the problem and to make his application because this would have assisted the district judge to determine whether he had acted appropriately promptly.
  67. As far as the hearing before Judge Oliver is concerned, the failure to put in a witness statement for that must be seen in the context of Judge Everall's order of 19 March 2013 giving directions for the appeal hearing. That required Mr Price to file and serve a transcript of the hearing before the district judge and a skeleton argument in support of his appeal but no mention was made of a statement.
  68. So, to summarise the position so far, in my view it cannot be said that a sustainable finding has been made below that Mr Price failed to post the answer on 12 December 2012.
  69. At this point, I need to consider Mrs Price's application to put in fresh evidence in the form of a preliminary report from a technician who has analysed the metadata relating to the copy of the answer that Mr Price sent to Mrs Price's solicitors. This report was obtained after the hearing before Judge Oliver, in preparation for the appeal to us. According to Miss Edwards' skeleton argument, it is said to indicate "that this document was either created on 12 February 2012 [which here and subsequently must mean 2013] or was a "save as" from another document version and edited and open for 3 hours 50 minutes on 12 February 2012". It is said that the evidence was not obtained before because it was not proportionate to do so, especially when Mrs Price did not know whether Mr Price had evidence of filing the answer.
  70. I would not give leave for this evidence to be adduced on the appeal. I do not think it can be said that it would establish beyond question that the answer cannot have been posted on 12 December 2012 so it would not determine the factual issue that remains unresolved. Mr Price would have to be given an opportunity to meet the evidence which he cannot have before us. And, importantly, the evidence could have been obtained sooner and it was a matter of choice (albeit possibly for good economic reasons) that it was not.
  71. It follows that we must proceed upon the basis that it has not been established whether or not the answer was posted on 12 December. In so far as the district judge and the judge proceeded on the basis that it was not, they exercised their discretion upon a wrong basis. Even if they simply failed to determine the issue and looked only at the fact that the answer was not received, their discretion cannot have been exercised taking into account all the relevant factors as it is clear from the authorities, as also from Rule 4.6 FPR 2010, that the approach that has to be taken depends on the circumstances in which the respondent comes to be seeking to file an answer out of time.
  72. Today, a judge determining an application of this kind must have regard to Rule 4.6 but I do not think that this removes the force of the old authorities. Neither side argues before us that it does; their approach is each to pick from the authorities available the ones that best support their case. The decision is now to be taken applying an amalgam of the procedural rule and authority. A consideration of an application to have a certificate set aside and for leave to file an answer out of time will therefore require a consideration of all of the circumstances of the case including those of the 9 factors spelled out in Rule 4.6 as are relevant. It will also involve a consideration of whether the case falls into one of the categories identified in the authorities as they have developed from Nash onwards. It may not do so, as the authorities acknowledge that there may be other types of situation. If it does, then the approach outlined in the authorities to that particular class of case will assist in determining what order is to be made and, even if it does not fall precisely within a particular category, the authorities may provide assistance by analogy.
  73. In this case, given the absence of a tenable finding as to whether the answer was posted, in my view we can only proceed on this appeal on the basis that it was. That is the most favourable possible outcome for Mr Price should we send this case back for a rehearing of his application. It may not be the actual outcome. I emphasise that I have formed no view about that at all because we simply do not have the material upon which to do so. I will therefore refer to this position as "the assumption". In what follows, for the sake of readily intelligible argument, I have (over-simplistically) proceeded on the basis of the original Nash categories except where I have expressly said otherwise.
  74. On the basis of the assumption, the case is most nearly within the third category, although it could be said that it requires a more benign approach because in that category there has been no attempt to file an answer whereas in this, an attempt was made but through the fault of someone not associated with Mr Price it did not succeed. It is not necessary therefore to satisfy the court that a different outcome would be more probable than not (Nash category 2) and the most Mr Price would have to do would be to satisfy the court that there was a case which he wished to put forward and which, if accepted, might well lead to a different result. The court does not have to accept the respondent's case at face value but should not attempt to investigate the truth in the way that would be appropriate at a hearing of the suit. In fact, the approach of Lady Justice Butler Sloss in Lawlor strikes me as more apposite than the Nash approach on the facts of this case and it will be recalled that she said that leave should be given unless the contents of the answer were such as to be considered an abuse of the process of the court. Indeed, given that the assumption is that Mr Price did all that was required of him and the answer was lost after it was posted, it seems to me that a more benign approach even than that could be appropriate.
  75. Miss Edwards submits that the answer is so doomed to fail that no leave should be given. She bases this on what she says are admissions by Mr Price. As I have said, Ms Cade Davies disputes that these are admissions/amount to unreasonable behaviour.
  76. The petition dated 25 October 2012 is based upon Mr Price's "spending habits" which are said to have been "extremely extravagant and unnecessary". He is alleged to have invested money in schemes that were intended to make money but did not. A specific allegation is that on the sale of the former matrimonial home in February 2011, the proceeds of sale were paid into the parties' joint bank account but, without consultation with Mrs Price, Mr Price transferred the majority of the funds to accounts in his sole name and then invested a large proportion without consulting her. It is also alleged that he continued to make further investments with full knowledge of Mrs Price's opposition. Mr Price's answer is a 7 page detailed document which has evoked a 7 page response from Mrs Price.
  77. Like the judge and the district judge, I am extremely reluctant to see these parties continue to litigate in what will be emotionally and financially draining proceedings. I have therefore given very careful consideration to whether Mr Price's proposed answer is an abuse of process or otherwise so doomed that we should decide that it could not be appropriate to set aside the certificate and give leave to file the answer. If we took that view, it would be wrong to allow the appeal and put the parties through the stress of a rehearing before a district judge.
  78. I fear, however, that the nature of the allegations in the petition and Mr Price's response to them do not assist me to take such a clear view. It is difficult to conclude whether financial conduct is unreasonable without looking at the whole context. Mr Price's overarching response to the allegations is perhaps to be found in paragraph 1.3 of his answer, namely that since the sale of the former matrimonial home in February 2011 he has "only followed a course laid out and discussed prior to the sale" and "undertaken solely to achieve or better pre-agreed objectives". He asserts (my words, not his) that although investments could be said to be high risk, firstly there have been safety nets and secondly they have in fact produced a much better yield than would have been the case with more conservative investments. In so far as funds were invested without consultation or discussion, he says that this was done of necessity. He denies that he has refused to acknowledge Mrs Price's attempts to discuss finance with him and gives details of the talks that have taken place. I have looked at the features of the petition that were thought to contain sufficient admissions but they do not seem to me to be clear enough to establish that a decree would be granted on that basis alone.
  79. It is with considerable regret therefore that I have concluded that the appeal will have to be allowed and the whole question of whether the certificate should be set aside and leave to file an answer given be returned to the county court. I would direct that it be heard before a district judge and would require the parties to seek an urgent directions hearing before the district judge so that directions can be given in preparation. It will be at that hearing that issues such as whether there should be expert computer evidence can be explored, as well as directions given for the filing of statements. Ultimately, I do not think that a long hearing will be required to determine first the factual issue of whether the document was posted and then, dependent on the finding made in respect of that, what should be the outcome of Mr Price's application.
  80. I would once again urge the parties to attempt to reach an accommodation. Of course, I do not know what the real picture is away from the court arena but it is difficult to see how Mr Price's hopes for a reconciliation could come to fruition in the light of all that has happened. I appreciate and respect Mr Price's religious objection to divorce but, that apart, a decree could be granted on an alternative basis which would avoid a re-run of Mr Price's existing application and a complex hearing exploring all the financial issues upon which Mrs Price relies in her present petition. It seems that the parties have been living separately for some time and the two years' separation and consent ground may be available. If financial wrangles are relevant to the ancillary relief claim, they could then be addressed in that context. If, unfortunately, the matter proceeds to a trial on the present petition, it may be helpful for consideration to be given to whether both the divorce itself and the ancillary relief proceedings could be heard before the same tribunal.
  81. Lord Justice Underhill:

  82. I agree.  I wish to add something only in relation to para. 47 of Black LJ's judgment.  The situation where a party asserts that he has posted a document to the Court but where it does not appear to have been received is not uncommon in all kinds of civil proceedings (including tribunal proceedings); and it is also alas not uncommon that the party has retained no independent proof of posting.  I agree with My Lady that the fair way of resolving such an issue must depend on the circumstances of the particular case; but where, as here, the party in question is before the Court in my view the right course will normally be for him or her to be required to give evidence on oath (or affirmation) – which evidence can of course then be tested by cross-examination by the other party and/or questions from the Court.  If the issue has important consequences, as it often will, it is not satisfactory that the party's case that the document in question was posted should be rejected – or indeed accepted – without the normal process for resolving a disputed issue of fact being gone through.  I can understand the temptation for a Court dealing with the issue in the context of a case management hearing to do so without hearing evidence; but I think that the temptation has to be resisted.  Putting the party in the witness box and allowing any relevant questioning will not normally take very long; and, quite apart from being the right course in principle, it ensures that the Court appreciates that, narrow though the issue may be, it is one of fact on which a reasoned – though in most cases it can be very shortly reasoned – decision is necessary. 
  83. Lord Justice Moses:

    I agree with both judgments.

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