Irwin Mitchell recently represented Ms Roocroft in the Court of Appeal. This case considers a number of fascinating and untested issues within the context of family law. After making law with the Supreme Court cases of Sharland and Gohil, this may be another case that breaks new ground.
A review of the facts makes for very interesting reading. Ms Roocroft had been in a relationship with Ms Ainscow. Ms Ainscow was a former entry in the Sunday Times Rich List and she has been credited with facilitating the creation of Manchester’s vibrant gay scene. She breathed life into the now famous Canal Street, setting up the first openly gay bar. She then successfully branched out into property development across the north-west region.
Ms Ainscow and Ms Roocroft entered into a civil partnership in 2008, although they had been in a committed and stable relationship since 1991. They had lived a luxurious lifestyle throughout much of their relationship. Unfortunately, they separated in 2009 after 18 years together.
Following separation, the parties were not able to reach an agreement on the division of the assets. In 2010, Ms Roocroft started court proceedings under the Civil Partnership Act, which effectively mirrors the divorce provisions under the Matrimonial Causes Act. In November 2010, the parties managed to reach an agreement, with Ms Roocroft receiving a lump sum of £162,000 and maintenance for two years of £18,050 per annum. Once the maintenance claims came to an end, Ms Roocroft would have no further claims against Ms Ainscow, including no claims against her estate.
Ms Roocroft was representing herself by that time, as she was not eligible for legal aid (or public funding) and did not have the resources to pay legal fees. Those advising Ms Roocroft consider that an earlier order in relation to maintenance and legal funding critically affected the course of the parties’ litigation and almost certainly lead to Ms Roocroft having to represent herself.
The agreement reached and the lump sum to be paid might look fairly small for someone who was in a relationship with someone in the Sunday Times Rich List. However, Ms Ainscow had claimed that her property business had been badly hit by the recession and she declared net capital assets of £766,000 and an income of £55,000 gross.
Tragically, Ms Ainscow died of a brain tumour in September 2013. She did not have a will. At the time of her death, she and Ms Roocroft had renewed their friendship and Ms Ainscow had provided Ms Roocroft with additional financial support. However, by September 2013, under the terms of the consent order, all of Ms Roocroft’s claims against Ms Ainscow had been extinguished.
Following Ms Ainscow’s death, Ms Roocroft became concerned about the disclosed level of assets at the time she entered into the agreement in 2010. She applied to set aside the original consent order on the grounds of material non-disclosure and sought a fact-finding hearing, for the Court to determine whether there had been non-disclosure which was material and would have resulted in a different award being made. Ms Roocroft’s ability to pursue a claim against Ms Ainscow’s Estate was estopped as a consequence of the clean break order imposed in 2010. Her application was summarily dismissed by His Honour Judge Barnett in June 2014, the learned judge having concluded that this was a decision he ought to make as part of his case management powers. Ms Roocroft appealed.
The Court of Appeal allowed Ms Roocroft permission to appeal at an oral hearing in January 2015 and the appeal was finally heard by the Court of Appeal in July 2016. The appeal Court heard arguments on interesting points of law, the significant focus for that hearing being the Court’s ability to summarily dismiss or to strike out an application for setting aside an original order. This is important as it demonstrates the need to fully appreciate the intricacies of the ever-changing and evolving law. Without this knowledge, Ms Roocroft’s claim may have fallen at the first hurdle. It was especially significant in light of the changes to the Family Procedure Rules in 2015.
In addition to this, the Court of Appeal Judges made frequent references to the successful Irwin Mitchell cases of Sharland and Gohil, which were heard by the Supreme Court in 2015. Those cases make it clear that the duty of disclosure is paramount and the duty falls on the discloser. In the event the disclosure provided is deliberately false or mis-leading, then it would be for the discloser to prove that the non-disclosure was not material.
If Ms Roocroft wins, where does she go from here? We know from Sharland and Gohil that it is possible for the court to set aside parts, rather than the whole, of a consent order. For example, in this case, the Court could set aside the element dismissing Ms Roocroft’s claims against Ms Ainscow’s estate, to allow her to bring a claim that way. Alternatively, it could say the entire consent order should be set aside, allowing Ms Roocroft to bring her claims against Ms Ainscow, with Ms Ainscow’s estate standing in her shoes. What too of the issue as regards quantification of Ms Roocroft’s claims assuming that she is ultimately successful in her bid to set aside the 2010 order?: Would she have secured a final decree had she known the true/ full picture, which, in turn, will affect the way in which her claims under the Inheritance (Provision for Family and Dependants) Act might be treated? What of the consequences? Will the Court be forced to consider her claim as that of a spouse or will the statutory limitations for a former spouse apply? Watch this space! All in all, was HHJ Barnett wrong to summarily dismiss this claim in circumstances where there is at its lowest, some evidence of an order having been wrongly approved by the Court?
As we enter autumn 2016, with a decision still pending, it is important to remember Ms Roocroft started this process approximately 3 years ago. Due to the special circumstances, Irwin Mitchell agreed to act on a Sears Tooth type basis. Irwin Mitchell also managed to secure ATE insurance for Ms Roocroft, which protected her following the original decision of HHJ Barnett, as that original order included an adverse costs order against Ms Roocroft. Without this support, would Ms Roocroft have been able to bring her claim?
This case also brings to the forefront the importance of a Will. As Ms Ainscow died intestate, there is a lack of certainty about how she would have wanted her estate, whatever it may be, to be distributed. While it may not have assisted in circumstances where there may be non-disclosure, this lack of certainty will not have helped.