Price v Price
May 21, 2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MOSES
- LADY JUSTICE BLACK
- LORD JUSTICE UNDERHILL
Areas of Law
- Family Law
- Civil Procedure
- Evidence Law
May 21, 2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The Court of Appeal (Lady Justice Black, with concurrences by Lord Justice Underhill and Lord Justice Moses) addressed Mr Price’s challenge to the county court’s refusal to set aside a registrar’s certificate and grant leave to file an answer out of time in divorce proceedings brought by Mrs Price. Mr Price, acting in person, asserted he had posted a defense on 12 December 2012, but the court had no record of receipt. The district judge dismissed his application, and HHJ Oliver dismissed the appeal and pronounced decree nisi. Finding the lower proceedings too robust and unfair because no sworn evidence was heard on the disputed posting issue, the Court held that FPR 2010 Rule 4.6 must guide discretion alongside authorities (Nash, Day, Moosa, Mitchell, Lawlor). Concluding it could not deem the proposed defense abusive or obviously futile, it allowed the appeal and remitted for a rehearing with directions to take evidence.
Judgment
Lady Justice Black :
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.
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.
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.
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.
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:
“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.”
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