Evidence, Practice and Procedure: Issue estoppel in family proceedings

The penetrating judgement of Mostyn J in BP v KP NI and OI [2012] EWHC 2995 (Fam) indirectly shows up one of the real muddles of family law namely its attempts to adopt one set of legal principles - especially in terms of procedure - across the family law board. In BP v KP issue estoppel arose. A preliminary issue hearing was conducted by the judge in relation to whether the wife (W) could run an ‘add-back' argument based on the contested fact of the date of an agreement. That agreement formed the basis of settlement of separate proceedings between the husband (H) and a friend (NI) from which a substantial loss accrued. The date - before or at about the time of separation - might help to determine to what extent the court should regard that loss as ‘wanton' and attribute it to H. Was she estopped by her involvement...

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