Laws of Eve | When a consent order is not final

In last week’s article, I mentioned the case of Barder v Colouri [1988] AC 20 to explain how supervening events can affect court orders. In the Barder case, the wife’s death shortly after a financial settlement had been concluded was an event that gave the husband the right to appeal the court order.

The terms of the settlement required Mr Barder to transfer his interest in the family home to Mrs Barder. Before the court order was even signed, Mrs Barder committed suicide. On Mr Barder’s death, her mother would have inherited the home. Mr Barber argued that Mrs Barder’s death was a supervening event that led to such a significant change in circumstances that it invalidated the basis if the consent order. The court agreed with Mr Barder and allowed him to file his appeal out of time.

In a what has become known as ‘Barder events’, the UK House of Lords outlined four conditions that need to be satisfied for an application for leave to appeal out of time to succeed:

(a) An event has occurred since the making of the order that invalidates the basis or fundamental assumption upon which the order was made so that an appeal would be certain or very likely to succeed.

(b) The new event should have occurred within a relatively short time of the order having been made.

(c) The application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.

(d) The grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.

Many cases have relied on, or distinguished, Barder over the years. Among these cases is WA v Executors of the Estate of HA & Others[2015] EWHC 2233. This case involves a wealthy wife who entered a consent order to pay £17.34 million to her husband. The wife appealed against that order because the husband committed suicide 22 days after the order was made and after receiving the first instalment of the settlement sum.

If the order was allowed to stand, the husband’s entire estate would go to his three brothers, with no benefit going to any of the couple’s three children.

In saying that the husband’s death was a Barder event, the wife argued that:

The fundamental basis of the settlement was the payment of a lump sum to the husband to meet his needs.

The fact that the husband died within a very short time after the settlement, the entire settlement was invalidated.

The order should be set aside and the amounts already paid to the husband should be repaid by his estate.

The appeal was allowed and, although finding that the settlement was primarily needs based and did not therefore strictly reflect a sharing of matrimonial property, the court held that the husband would have been entitled to one-third of the wife’s net share of the family home or £5 million. The lump sum award of £17.34 million was reduced to £5 million. The second tranche of the consent order was set aside, and the husband’s estate was ordered to repay £3.6 million to the wife from the first payment he had received.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.