FREE CHAPTER from ‘A Practical Guide to Barder Events in Financial Remedy Proceedings in Family Law’ by Mark Ablett

CHAPTER TWO – BARDER V BARDER (CALUORI INTERVENING)

So, to the originating authority. In 1973, David and Christina Barder married. They had two children in 1976 and 1978 but the marriage did not last. In July 1983, David left the family home and Christina remained with the children. On 25 September 1984, Mr and Mrs Barder were granted their Decree Absolute on Christina’s undefended adultery petition.

Ancillary relief proceedings, as they were then called, followed and in the heady surrounds of Basingstoke County Court in February 1985, they settled their dispute with a consent order. This was duly approved by Mr Registrar Fuller. The essential provision was that H would transfer to W all his interest in the family home with W undertaking to redeem the mortgages and H would pay substantial periodical payments for the benefit of the children.

On 25 March 1985, the unthinkable happened; W killed both children and then herself. The unimaginable position in which H found himself should not be overlooked notwithstanding that the law tends to focus on the procedure and the technical rather than the human. At the centre of this case and of many subsequent cases in this line of authorities is appalling heartache and tragedy.

The order remained executory, as in it was yet to be implemented and the time for appeal had expired a month earlier (it was then just 5 days). On 23 April 1985, H issued a notice seeking leave to appeal out of time against the order. For the purposes of this book, the key plank on which the appeal rested was that if the order remained unchanged, the property would be disposed of in accordance with W’s testamentary wishes and her mother would be the sole beneficiary. In other words, if the order remained unchanged, H would have nothing from the family home and W’s mother would have everything. As H pleaded, W’s death and the children’s death fundamentally altered the basis upon which the order was made and the Matrimonial Causes Act was not intended to make provision for W’s mother.

W’s mother, Jacqueline Caluori, was given leave to intervene on 18 September 1985 and on 15 November 1985, H was given leave to appeal and succeeded, with the appeal being allowed and the order being set aside. The original judgment was on the basis of vitiation by fundamental mistake.

Mrs Caluori successfully appealed (2:1) to the Court of Appeal and H then appealed to the House of Lords.

The appeal in the Court of Appeal was framed around three questions, and this approach was mirrored by Lord Brandon of Oakbrook in the House of Lords. The three questions were:

  1. Whether W’s death had caused the suit to abate, so that the county court judge had no jurisdiction to entertain the husband’s application for leave to appeal out of time.
  2. Whether, if there was jurisdiction, the judge was right to exercise his discretion to grant leave to appeal out of time.
  3. Whether, if there was jurisdiction and if the judge was right to exercise his discretion to grant leave to appeal out of time, he was also right to allow the appeal.

Question 1 engages an interesting dichotomy which continues until this day, namely the interplay between the death of one party and the continuation of the suit which was considered recently by the Supreme Court in Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22, which will be touched on below.

Back to Barder, the various wranglings of the Court of Appeal will not be set out.

Dealing with question 1, the intervener’s case was that given W had died, the court had no jurisdiction to entertain an appeal; the only jurisdiction it had was to enforce the order on behalf of the intervener. Remarkably, a case dealing with this very point just a few years earlier, Purse v Purse [1981] Fam. 143, was not cited to the Court of Appeal in Barder but was considered by Lord Brandon in the House of Lords. In Purse, the Court of Appeal distinguished between the court’s appellate function and the clear prohibition on the personal representative of a deceased party invoking the court’s jurisdiction under the Matrimonial Causes Act on behalf of the estate, as set out in Sugden v Sugden [1957] P 120.

Lord Brandon agreed with the decision in Purse, albeit not all the reasons; he approved in particular of the judgment of Sir John Arnold P. His own journey through the authorities can be seen in the Barder judgment and will not be repeated here. He agreed however, with the distinction drawn in Purse, noting:

The purpose of the statutory right of appeal is to enable decisions of a county court which are unjust to be set aside or varied by the Court of Appeal. The fulfilment of that purpose is not made any the less necessary or desirable by the death of one of the parties to the cause in which the decision was made. In a case other than a matrimonial cause I do not think that it would even be suggested that the statutory right of appeal would lapse because of the death of one of the parties to it. I cannot see why a matrimonial cause should be different in this respect.

It follows that the right to appeal out of time must survive the death of one of the parties to the suit. Lord Brandon also noted that the corollary of the intervener’s case must be that the right survives; the intervener’s case was that the court could enforce the order. It would not be right for that position to be immune to defeat, i.e. the court must be able to refuse to enforce the order and set aside the order in the same way as if W still lived.

Question 2 of course is much less theoretical and turns on the facts of the case. Of interest is that little weight was placed by Lord Brandon on the fact that the order was by consent. As has been subsequently confirmed in numerous cases such as Sharland v Sharland [2015] UKSC 60, the force of the agreement stems from the order as approved by the court, not the agreement as some form of contract.

Lord Brandon, in agreeing that leave to appeal should have been given, balanced the competing interests of finality in litigation and justice requiring cases to be decided on true facts, not assumptions which later are conclusively shown to have been erroneous. He tied together in effect questions 2 and 3; the merits of the substantive appeal go hand in hand with whether leave to appeal out of time should be granted.

He went on to set out the essential conditions which any Barder application must today satisfy, as follows:

  1. New events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed.
  2. The new events should have occurred within a relatively short time of the order having been made.
  3. The application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
  4. 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.

Later authorities have added a fifth condition: namely that no alternative mainstream relief is available to the applicant which broadly remedies the unfairness caused by the new event. Later authorities have also confirmed that even if all 5 conditions are satisfied, there remains a discretion open to the court to refuse to set aside an order, albeit this will likely only apply where the original order was made by consent. These will be explored throughout this book and a conclusive test proposed at the conclusion.

Clearly the second condition can never be capable of complete prescription in terms of time, but Lord Brandon considered it unlikely that the time could be as much as a year and in most cases it will be no more than a few months.

The third condition reminds readers of the rather cold nature of the law. An application must be brought promptly, notwithstanding the fact that in this case, H was grieving the murder of his two children, if not necessarily the suicide of his ex-wife.

The fourth condition is in effect the equity’s darling argument which crops up in various forms, for example as a defence to setting aside a disposition under s.37 Matrimonial Causes Act 1973.

Yet, it is the first condition which realistically dominates the authorities and the ongoing difficulty practitioners will have in conclusively advising their clients. What counts as a Barder event? And as will become clear, implicit within this is whether the event was foreseeable.

Certainly in Barder, the fact that the house was transferred to W can clearly be inferred to be for the purpose of providing her and the children with a home for the foreseeable future. That purpose ceased the moment W undertook her despicable act and so quite clearly, the basis of the order was undermined.

As will be seen later on this book, authorities have gone on to consider not just the nature of the events but the effect of an order. A distinction is drawn for example between an order which simply recognises each party’s entitlement to their share of their assets, i.e. a sharing case versus a needs-based award where a party is getting more under the order than they would otherwise have. It is the latter specie of case which is generally susceptible to a Barder claim.


How is this different to Ul-Hasan?

Primarily because of the recentness of the decision, this book will briefly touch on the interplay between the House of Lords’ decision in Barder and the Supreme Court’s decision in Ul-Hasan, as referenced above.

In brief, Ul-Hasan concerned an application by the wife under Part III Matrimonial and Family Proceedings Act 1984 following a divorce in 2012 in Pakistan. Before the application could be finally determined, the husband died. W wished to continue her claim against H’s estate. Mostyn J considered that he was bound by the Court of Appeal’s decision in Sugden v Sugden, referenced above, but would otherwise have allowed W to continue her claim as he disagreed with the Court of Appeal. He granted a leapfrog appeal to W, hence the matter travelled directly to the Supreme Court.

W’s appeal was unsuccessful. The Supreme Court was satisfied that a claim under the 1984 Act, as with a claim under the Matrimonial Causes Act 1973, is a personal right which can only be adjudicated between living parties. The claim cannot continue against the estate.

The Supreme Court approached the decision in line with Lord Brandon’s three questions he posed in Barder, before going on to set out the essential conditions. Lord Brandon’s first question as set out above is whether the court has jurisdiction at all; the question turns on the nature of proceedings.

To determine this, the court first had to consider, on their true construction, the relevant statutory provisions. If the 1973 and 1984 Act created personal rights and obligations which could only be adjudicated between living parties, that really was the end of the matter.

Mostyn J’s analysis at first instance, in setting out his disagreement with the Court of Appeal in Sugden, rested on s.1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, which provides for causes of action to continue against a person’s estate after their death. The question then for the Supreme Court was whether the right to financial provision on divorce is or is not a cause of action which falls within s.1(1) of the 1934 Act.

As is set out in the Supreme Court’s judgment from paragraph 40 onwards, there had already been numerous decisions setting out that the right to financial provision does not fall within s.1(1) of the 1934 Act.

The long line of case law will not be rehearsed but it is perhaps telling that 2 years after the Matrimonial Causes Act 1973, Parliament enacted the Inheritance (Provision for Family and Dependants) Act 1975; i.e. a specific route for dependants to claim from the estates of the deceased. It would arguably be unnecessary for this Act to be created in relation to bereaved spouses, particularly given the ‘divorce fiction’ under s.3(2) of the 1975 Act, if Parliamentary intention was for the rights created under the 1973 Act to survive one spouse’s death. The one distinction is that the 1975 Act only bites if the deceased dies domiciled in England & Wales (thus less helpful to potential applications under Part III of the 1984 Act).

So in summary, at first blush the key difference between Ul-Hasan and Barder is on the first question addressed by both the Court of Appeal and the House of Lords in Barder, namely a question of jurisdiction. In Barder, the court was faced with an appeal, which is in effect a procedural entitlement clearly provided for by statute and procedure rules. It was not the pursuit of a discretionary order, a pursuit of a personal right, but merely the review of an order already made. This is quite clearly distinct from Ul-Hasan, in which W was seeking for the exercise of the court’s discretion for financial relief notwithstanding the death of H.

However, as will be explored later on, there are Barder authorities where the court conducted a fresh review of an appropriate order on appeal, rather than simply reversing an order made, which was the case in Barder. The position is summarised by Lord Stephens at paragraph 100 of Ul-Hasan:

If an applicant successfully satisfies the conditions for leave to appeal applying the principles in Barder and if the appeal is allowed, then the appeal court can, on a redetermination, consider what order ought to have been made, even though one of the spouses has died. I consider this to be a discrete but limited exception to the general rule that the 1973 Act creates personal rights and obligations which end with the death of a party to the marriage, and which cannot be pursued against the deceased’s estate. I consider that this limited exception is not a sufficient basis on which to undertake a radical change to the construction of matrimonial legislation.

This seemingly unfair dichotomy, where the court can review a claim if one party dies just after an award, but a party cannot continue a claim if the other party dies just before an award, is the focus of Lord Leggatt’s concurring judgment. It goes beyond the confines of this book to delve further and various subsequent articles have looked at how discrete the Barder exception really is to the general rule set out by Lord Stephens at paragraph 100.

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