In Price v. Price  EWCA Civ 655 the Court of Appeal considered the circumstances in which a husband who had claimed to have posted an answer to a petition which was then not received by the Court, should be able to successfully apply to set aside a certificate and serve his answer out of time. Black LJ considered both the relevant authorities and their inter-relation with Rule 4.6 of the Family Procedure Rules 2010 (FPR 2010) which deals with relief from sanctions.
The Wife issued a divorce petition based on the Husband's alleged unreasonable behaviour, namely profligacy of spending. The Husband filed an Acknowledgment of Service indicating an intention to defend the divorce, but although he claimed to have posted an answer on the 12th December 2012, it was common ground that this did not reach the Court. As a consequence the Wife applied for decree nisi on the basis that the divorce was undefended, and on 29th January 2013 the county court certified that she was entitled to a decree, the pronouncement of which was listed for 18th February 2013.
On being notified of the certificate and the hearing, the Husband (who was acting in person) applied for the certificate to be set aside on the basis that in the normal course of events his answer would have been received by the court and the petition would have been treated as defended, and no certificate would have been granted. He also applied for leave to file an answer out of time.
There was a short hearing before a District Judge at which no evidence was called and the Husband's application dismissed on the basis that the Court was not satisfied an answer had filed in time and that the marriage had "plainly irretrievably broken down". The Husband then unsuccessfully appealed this decision to the Circuit Judge who dismissed his appeal and upheld the DJ's reasoning. The Husband then appealed again to the Court of Appeal.
Black LJ carried out a detailed review (see paragraphs 10 - 25) of the relevant authorities , going back to Nash v. Nash  P 597 in which three classes of case were identified: i) Where a spouse knew nothing about the divorce in which situation he would get a rehearing almost automatically; ii) Where the spouse knew about the divorce, chose not to defend, but later changed his mind, in which case he would have to persuade a court that it was more probable than not that the decree was obtained contrary to justice of the case; and iii) Where the spouse was aware of the divorce, anxious to defend it but through ignorance or lack of advice failed to take necessary procedural steps to protect his position. In that type of case, a court would not have to be persuaded a different outcome was 'more probable than not' but rather it would be necessary and sufficient for the spouse to satisfy the court that he had a case which he wished to put forward, that if accepted, might well lead to a different result.
The most recent authority referred to by Black LJ was Lawlor v. Lawlor  1 FLR 269 which considered a case within the third Nash category, where an application by the wife to file an answer out of time had been refused. The Court of Appeal said that both the first instance judges who had considered the merits of the answer and its prospects of success had taken the wrong approach: The fact that the wife might lose and that her view of the possibility of reconciliation might be misguided were not good reasons for preventing her side of the case from being heard, nor could it be assumed that a person defending a divorce petition was out to cause trouble.
Further, Butler-Sloss LJ, said that in circumstances where the delay in filing the answer was 'minimal' and not prejudicial to the other spouse, it would be 'usual' to permit the answer to be filed, unless the contents of the answer were frivolous, irrelevant such that they would be considered to be an abuse of process of the Court.
As to Rule 4.6 of the FPR 2010 dealing with relief from sanctions, Black LJ considered that the jurisprudence decided prior to the FPR 2010 (and indeed FPR 1991) has been supplemented by Rule 4.6 and that the nine factors listed therein should guide the exercise of the judge's discretion as well as the decided authorities.
Black LJ concluded that the hearing before the DJ was too robust. In circumstances where essentially the finding made was that the Husband did not post the answer (and thus inferentially was dishonest in asserting he had), then he should have been given the opportunity to establish his case. Notwithstanding that it appeared there had been substantial informal discussion between the judges and the Husband at the hearings regarding the posting of the answer, and that the Husband had opportunity to make submissions to both judges, Black LJ held that they were " not in a position to assess [his credibility] without hearing Mr Price give evidence in the normal way".
Given that the Court of Appeal concluded there was no sustainable finding that the Husband had failed to post the answer, it then went on to find that the circumstances of the case fell within the third category of situations described in Nash. Somewhat reluctantly Black LJ concluded that as the Husband's answer was not an abuse of process or otherwise so doomed to fail (given that the allegations in the petition were of financial misconduct and the unreasonableness of such allegations required examination of the whole context, and the Husband's answer ran to a seven page detailed document which indicated substantial disputes of fact), she would remit the case to the County Court for it to determine afresh whether the certificate should be set aside and leave to file an answer be granted.
Three observations can be made about this case: Firstly, the no-fault divorce is not with us yet and notwithstanding the temptation to conclude that in a case such as this irretrievable breakdown can almost inevitably be inferred from the pleadings themselves and associated litigation (such as this), a respondent to a divorce is still entitled to defend allegations made against him or her unless they are an abuse of process.
Secondly, although one has some sympathy for a District Judge in the Single Family Court wanting to deal expeditiously with a busy list involving an ever-blossoming number of litigants in person, both Black LJ and Underhill LJ (who added his observations at paragraph 67) emphasised that in circumstances where one party's case is that a document has been posted, that case should not be rejected (or accepted) without the normal process of resolving a disputed issue of fact having been gone through, namely by the party giving evidence on oath that can be tested by cross examination and/or questions from the Court. This process also ensures that the Court appreciates that it is required to make a reasoned (albeit in most cases shortly reasoned) decision on the disputed issue of fact.
Lastly, this case demonstrates that although the FPR 2010 are a new procedural code to which a judge must have regard, its provisions do not "remove the force of the old authorities" (see paragraph 58). Moreover, although the Court of Appeal did not comment on the argument as to whether the provisions of Rule 4.6 needed to be explicitly referred to by the judge or whether it was sufficient that the relevant factors were discernible from the judgment, it would seem prudent for a decision to allude specifically to the Rule to avoid any dispute about whether proper regard was had to that provision.