DELAY; AGAIN – Briers v Briers [2017] EWCA Civ 15

In so far as delay was concerned, for a time, at least, it seemed that jurisprudence and argument was trying, hard as it might, to imply the possibility of a time-bar: the high-tide being illustrated by Rossi v Rossi & Rossi [2006] EWHC 1482 (Fam) and S v S [2006] EWHC 2339 (Fam). This was, of course, full in the face of the statute: section 23(1) MCA 1973 “On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter  …”.

Come Wyatt v Vince [2015] UKSC 14, Lord Wilson outfoxed many: the issue of limitation was, in effect, skirted and purposefully so. This was not a question of limitation (how could it be?). Rather, public policy is hostile to delay, the effect on the affairs of the other, any prejudice, the explanation for delay etc….These were all factors which might “reduce or eliminate its provision for the applicant” [62].Or, put differently, the nuclear options of strike out and implied limitation played no part in a judicial examination of all the circumstances of the case. It was, simply, a circumstance (aside: there was a double-feint here, any award to W ought not to be based on needs but contributions). And so, it might be said, the Supreme Court came to reassure a great many DJs and DDJs that they were doing just fine when it came to delay.

In Briers v Briers [2017] EWCA Civ 15, H appealed on (i) the lower Court’s determination that there was, in fact, an agreement in 2005 and (ii), our old friend, delay.

In Briers, the parties married in 1984. They separated in 2002 with Decree Absolute pronounced in 2005. It was alleged by H that there had been an agreement reached in 2005 but it was common ground that no financial orders had been made.

The question of agreement was dealt with shortly on appeal. At first instance, it had been decided that W had made it clear that she required full and frank disclosure before agreement and that this had not happened. The Court of Appeal, once more highlighting the importance of evidence at first instance, determined that the first instance judge’s finding was sound as a question of fact: wife’s acceptance was conditional on full disclosure. Implicitly or not, they re-highlighted the difficulties that surround “agreements”.

It was further argued, as a second ground, that the trial judge had failed to have sufficient regard to delay and the lack of a cogent explanation in respect of the same. Ryder LJ was clear that the trial judge had addressed the relevant principles. It should not be put more succinctly,

“Delay: 19. If the facts are those determined by the judge, it is beyond argument that the wife had a valid claim to make under the Matrimonial Causes Act 1973.  It is equally beyond argument that the significant delay in making the claim is one of the major factors in play in the subsequent assessment by the court.  The judge met the point head-on in his judgment.  He noted that the Supreme Court had handed down judgment in Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972 on the second or third day of the hearing. He cited the critical passage from Lord Wilson’s judgment at [62] which includes the fact that public policy is hostile to forensic delay, the effect on the financial affairs of the other party, prejudice to the other party and the explanation for the delay, among other factors, may “reduce or eliminate its provision for the applicant”. 20. The judge’s treatment of the factors is relatively short but certainly sufficient.  He reminded himself of the statutory criteria and of the general principles arising out of the main authorities: White, Miller and McFarlane and Charman.  He records the fact that the wife had no concrete explanation for the delay other than the pressing demands of everyday life, work and caring for the children. The judge accepted that had her own life taken a different turn, she might never have made (or by implication have needed to make) the application.  The event he was referring to was the breakdown of the wife’s subsequent relationship.  To that extent, the husband could not have asked the judge to be firmer given the broad context provided by the findings of fact that were made. 21. The judge then considered prejudice and rejected it.  There might have been two bases for prejudice, namely the recollection of witnesses and existence of documents and the ordering of the parties’ affairs over time.  As to the former, no submissions were made to this court and it is not, on the facts of this case, an issue of any significance.  As to the latter, the judge acknowledged in his judgment that the husband had brought on the company single handed since separation, had taken all the risks and had assumed, understandably, that the parties’ financial affairs were resolved.  Likewise, the wife took on responsibility for the family. 

  1. The judge’s subsequent treatment of the impact of delay was a textbook exercise.  He did not accept that a delayed application requires an applicant to begin from a position where the burden of justifying any distributive remedy is on the applicant so that s/he receives nothing unless it can be justified.  That hypothesis carries with it an elision of the concepts of entitlement sharing and needs provision which would be contrary to authority.  In any event, that is not what was anticipated in Wyatt v Vince.  The exercise to be conducted by the court is an inquisitorial exercise using judgment.  Just because an application is delayed, even severely delayed, does not have the consequence that the court’s function on an application for financial remedy is abrogated or curtailed.  Delay, its explanation and effect, is an additional factor.
  2. What the judge did was to look at the factors that existed on the evidence having regard to the fact that the company was an undivided matrimonial asset.  He looked at the significance of that fact and found assistance in the wise words of Roberts J in Cooper-Hohn v Hohn[2014] EWHC 4122 (Fam), [2015] 1 FLR 745 at [195] where the learned judge explained that fairness in the overall context of a case includes consideration of entitlement and need and that even where there is no need and entitlement has to be considered in the context of both marital acquest and post-separation accrual, the genesis of the growth of an asset may still be as a consequence of the fact that it was a matrimonial asset.
  3. The judge’s ultimate exercise of judgment in a case where needs were conceded to be provided for was to discount the wife’s share in an equality of division of the assets because of her responsibility for delay.  The wife received between 27% and 30% of the overall assets.  I do not accept that the judge’s exercise of judgment in that regard was wrong.’

In so far as delay is concerned, Ryder LJ’s judgment can be regarded as a significant reiteration (but a reiteration, nonetheless). Where it comes to delay that “[it is] beyond argument that the significant delay in making the claim is one of the major factors in play in the subsequent assessment by the Court” ([19] of Ryder LJ echoing [62] of Lord Wilson in Wyatt v Vince]). Aside: what is “significant”? Does an agreement- or even, an agreement subsequently determined to not be an agreement after all- make it more significant? The Supreme Court were, of course, on a basic level dealing with a far longer delay.

Edward represented Ms. Wyatt in the original proceedings in the High Court