Discretion versus certainty

Family Law|March 18th 2015

I wasn’t intending to say anything more here about last week’s Supreme Court decision in Wyatt v Vince, other than my brief comments last Friday. However, a news release on Monday by family lawyers’ association Resolution got me thinking.

The decision in Wyatt v Vince was essentially about striking out, with their Lordships finding that there was no power to strike out family proceedings. Just to explain that for non-lawyers, in other types of civil proceedings the respondent can apply to the court at an early stage for the court to strike out the proceedings on the basis that the party issuing the proceedings has failed to demonstrate any reasonable grounds for bringing the claim. In this way, the case is brought to an early end without the time, effort and expense of full proceedings, including a full hearing.

The decision of the Supreme Court means that in family proceedings everyone gets the chance for their case to be fully heard. The court must consider all of the circumstances of the case, even if it appears to have little prospect of success.

After the Wyatt v Vince decision was handed down various people and organisations within the family justice system used it to promote their particular interests. So, for example, lawyers who offer an arbitration service suggested that it demonstrated the merits of arbitration, those offering a mediation service suggested it demonstrated the merits of mediation and general family lawyers pointed out that it simply demonstrated the merits of getting proper legal advice when you get divorced. All of this is now a normal response to big family law news stories, especially in these days when most have a big social media presence, and most have a fair point.

In their news release Resolution argued that the decision in Wyatt v Vince illustrates the need for reform of the law around divorce finance, as set out in their Manifesto for Family Law. Specifically, they say, it demonstrates the need for greater certainty regarding the outcome of financial remedy proceedings following divorce, so that divorcing couples know what the likely outcome is going to be and are therefore more likely to settle the matter by agreement, rather than going through contested court proceedings.

This is, of course, another perfectly valid angle for a response to the Wyatt v Vince decision, opening up the seemingly age-old tension between the competing aims of discretion and certainty. If there had been more certainty as to the likely outcome of a case with the sort of facts as in Wyatt v Vince then it would never have reached the Supreme Court – it would have been settled long ago, or perhaps Ms Wyatt would never have made her claim in the first place.

On the other hand, our current system in which the judge has a wide discretion as to what order to make has the great benefit of enabling the court to tailor the result to the particular circumstances of the case. As any family lawyer with a modicum of experience will tell you, families and family circumstances come in a seemingly infinite variety, and no fixed or formulaic system could possibly result in fair outcomes every time.

As Lord Wilson pointed out at the beginning of his judgment, the circumstances in Wyatt v Vince were highly unusual. Is it reasonable to assume that such circumstances could be covered by some rule which made the outcome more certain? I’m not sure that it is. In fact, it seems to me that Vince v Wyatt is more a demonstration of the merits of a discretionary system, in which the judge at any final hearing will be able to come up with a solution that fits those unusual circumstances, without being constrained by some rule which was not really designed for such a case.

To be fair to Resolution, they are not of course proposing that our discretionary system be done away with entirely – they are only seeking greater certainty, in order to reduce the extent and cost of litigation associated with the broad discretion we have. As they say, and as has often been said by others, our discretionary system is a thing to be proud of. It is also, however, certainly not perfect and I don’t know the answer to the debate over whether it is the best system. Perhaps it is, to steal a Churchill quotation, the worst system except for all the others.

The Resolution news release can be found here.

Photo of Dale Vince by nick ford via Flickr

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  1. Andrew says:

    A limitation would – as in every other sort of dispute – work justice, however hard it might be in a particular case.

  2. Nordic says:

    John. in my view this judgement is irresponsible and reckless in its promotion of continued conflict decades after the divorce, in addition to flying in the face of everything normal modern people would regard as being fair.
    You as many others seem to suggest that the mere fact that the Supreme Court had the discretion to make such a judgement is a good thing. However, discretion cannot be a means in itselt and I have yet to hear anybody actually present a cogent defence of the rationale underpinning the judgement. Indeed, having read their judgement text, I would count the involved Supreme Court judges amongst those who have failed to provide such a rationale. As I read the judgement, they felt sorry for the little lady so wanted to give her a bit of more money. There was no rationale.
    So, how do you defend this judgement? On what grounds do you, as you say, believe it to be a good thing? Why did this woman deserve to share in wealth created decades after the divorce? Why is it good that the system allows divorces to be re-contested and conflicts to be reignited in perpetuity?

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