The High Court has struck out Ms B’s appeal in divorce proceedings, finding that her delay in progressing it was inordinate and inexcusable and that allowing it to continue would seriously prejudice Mr A.
Mr Justice Max Barrett delivered the judgment on 23 February 2021. The application before him was to strike out the appeal for want of prosecution. It was not a decision on the merits of the underlying appeal.
The divorce and ancillary orders were made by the Circuit Court on 4 April 2019 after the parties reached an agreement. The judgment says the agreement was reflected in a court order, although the order did not record that it was made on consent. Ms B lodged an appeal in time, and the appeal came before the High Court on 7 May 2019. Both parties agreed to an adjournment while seeking legal aid for the appeal.
At a further hearing on 2 December 2019, Ms B sought another adjournment to explore legal aid. Mr A objected, but the court adjourned the matter to May 2020 on a peremptory basis. It could not proceed then because of the first Covid-related lockdown. When the case returned on 7 December 2020, a solicitor was willing to come on record for Ms B, but had not yet done so.
The judge accepted that Ms B had needed time to seek legal aid, was not responsible for the court closure and could not be blamed for the Covid-related delay. But he found that she had had months in 2020 in which to contact a solicitor, including by phone or internet, and had offered no good reason for the further delay. He concluded that the delay, assessed even from December 2019, was both inordinate and inexcusable.
In weighing the parties’ positions, the judge noted that the unresolved appeal had prevented the sale of the former family home. Mr A continued to live in accommodation his counsel described as “substandard”, and could not use the sale proceeds to move. The judge found serious continuing prejudice and no acquiescence or delay by Mr A. Although Ms B had a right of appeal, the court concluded that the balance of justice favoured striking it out.
The court exercised its inherent jurisdiction to strike out the appeal proceedings for want of prosecution. It proposed to make no order as to costs unless the parties wished to make further submissions.