“It is always wise to look ahead, but difficult to look further than you can see.” – Winston Churchill
With the recent decision in the Court of Appeal in the case of Critchell v Critchell  EWCA Civ 436 making waves for being one of the few cases in recent times to have successfully resulted in a change to the terms of a final order in financial proceedings, we thought we’d review the law on so called, ‘supervening events’. No-one can predict the future. But can you predict what your chances are of varying an order due to a sudden change in circumstances, whether within or beyond your control, that order no longer seems fair.
The law is well established and provides for 4 conditions which must apply to succeed on an application for leave to appeal a final order out of time. Those conditions were set out by Lord Brandon in Barder v Barder (Caluori intervening)  2 FLR 480:
A new event since the date of the order which invalidate the basis or fundamental assumption upon which the order was made;
The new event must have happened within a relatively short period of time of the order – referred to as less than a year but no more than a few months;
The application for leave to appeal out of time must be made reasonably promptly in the circumstances of the case; and
Granting leave to appeal out of time should not prejudice third parties who have acquired in good faith or for valuable consideration, interests in the property which is the subject of the order
It is worth pausing to remember that in Barder, the circumstances were both unusual and tragic at the same time. In that case, the fundamental assumption made at the time of the consent order (a ‘Mesher’ type, postponed sale order) was that the home was needed in which the wife and two children of the family would be living for a period of time which was measured in years not months or weeks. But, on the untimely death of the wife and 2 children, that assumption was completely invalidated within 5 weeks of the order being made.
One might do well to remember those facts when considering embarking upon an appeal out of time.
It ‘needs’ to be looked at again
In Critchell, albeit not the same circumstances by any means, the Court of Appeal supported the Wife’s appeal. Here, in a needs based case, the wife settled on the basis of keeping the house worth £190,000, but subject to a 45% charge in favour of the husband. The husband had a debt that needed to be discharged, and the order reflected that need. But, within one month of the order, the husband received an unexpected inheritance of £180,000 following the death of his father. The wife appealed the consent order on the basis of that ‘supervening event’ and relied upon the Barder principles.
The Court of Appeal agreed with the wife, in so far as whilst her need had not changed by virtue of the husband’s inheritance the husband’s most certainly had. He no longer ‘needed’ the 45% charge over the property to pay his debts – he now had £180,000 to meet them.
Lady Justice Black held that the circumstances leading to the terms of the consent order were such that originally provision was needed to meet the husband’s debt at a future date, and which would then also mean broad equality in capital provision for each party. However, that changed when the husband came into his inheritance. He no longer needed an interest in the matrimonial home to pay his debts – he could do so without recourse to that equity. There had been a ‘fundamental change’ in the needs of the parties.
Lady Justice Black commented:
“I would emphasise again that it is rare for a case to come within the Barder principles. It is well to remember what Lord Brandon said at page 493 of Barder when he explained that the question before the court was a difficult one because it involved a conflict between two important legal principles and a decision as to which should prevail. One principle was that cases should be decided, so far as practicable, on the true facts and the other was that it was in the public interest that there should be finality in litigation. The strength of this latter principle is to be seen in the restrictive application by the courts, over the years since Barder, of the conditions laid down in that case. The present judgment is not intended to change the jurisprudence on the subject and is no more than an application of the principles to the particular stark facts of this case.”
Each to their own
As with most matrimonial cases, they turn very much on their own facts. Lady Justice Black appears keen to emphasise that her judgment in Critchell does not bring anything new to the table in cases where a supervening event occurs soon after an original order. The 4 Barder principles stand the test of time and are still sacrosanct when considering whether to embark upon an application for leave to appeal out of time.
Home or away?
What about in other jurisdictions – are the same principles applied? Frank Arndt, Head of International at Paradigm Family Law has reviewed the cases around the world where supervening events have occurred and parties try to rely on them to change final orders – don’t hold your breathe though if you think your chances are better away from home.
The Hong Kong view
In Hong Kong, the case of PW v. PPTW  HKCA 628;  1 HKC 450; CACV 224/2013 (16 December 2014) specifically referred to Barder and the 4 principles when they refused leave to appeal to the appellant husband. Here, he sought to vary the amount awarded in an order in favour of the wife where his interest in company was valued higher for the trial than it subsequently turned out to be as a result of a company liquidation. The court did not accept that the husband had satisfied even the first of the 4 Barder principles.
Down Under and the suppression of evidence as a ‘Barder’ event
The Federal Circuit Court of Australia in Milford & Milford  FCCA 344 (27 February 2015) dismissed an application where the applicant sought to vary a final order because of the suppression of evidence. In that case, the Applicant argued that the fact that an offer had been made by a third party to purchase the Respondent’s shares in the company, CCPL should have given rise to a conclusion that there was not full and frank disclosure by the respondent and, consequently, a suppression of evidence. That was not enough to satisfy the Federal Circuit Court. Perhaps we are not so different after all.
If you have had a recent change in circumstances and wonder if it might be enough to warrant revisiting your recent final order in matrimonial proceedings, why not ask Paradigm Family Law’s specialist family lawyers for advice. Call us on 0845 6020422 or email us at [email protected].