Westbury v Sampson

A lump sum payable by instalments may be varied under section 31 of the Matrimonial Causes Act 1973, including by varying its overall amount. That power should be exercised particularly sparingly where the order formed part of an agreed final capital settlement.

Variation of the overall amount ordinarily requires a highly significant change in anticipated circumstances or cogent reasons making enforcement unjust or impracticable. Comparable finality considerations govern an application to appeal a single lump-sum order out of time. A claimant alleging negligent failure to advise about section 31 must prove that proper advice would probably have produced a materially more secure outcome.

The claimant appealed from Judge Graham Jones's dismissal of his negligence claim against his former solicitor. The claim arose from a consent order in ancillary relief proceedings under which the claimant's former wife was to pay a lump sum by two instalments. The order was intended to achieve a clean break.

The solicitor admittedly did not know or advise that section 31(1) of the Matrimonial Causes Act 1973 permitted variation of a lump sum payable by instalments. Following an unexpectedly large reduction in the equity of the matrimonial home, the family court reduced the lump sum.

The central issues were whether the solicitor's omission involved a sufficiently foreseeable risk and whether it caused the claimant's loss, given that a differently framed capital order could still have been challenged by an appeal out of time.

1. Appeal dismissed. Mr Justice Bodey delivered the judgment, with which Lord Justice Sedley and Lord Justice Schiemann agreed. The claimant had not established the necessary foreseeability and causation for his negligence claim.
2. Section 31(1) of the Matrimonial Causes Act 1973 permits the court not only to alter the timing or amount of individual instalments, but also to vary, suspend or discharge the principal lump sum itself. Tilley v Tilley and Penrose v Penrose supported that construction. Variation of the principal amount must nevertheless be particularly sparing because capital provision requires finality.
3. When the court considers varying the overall amount of an instalment-based lump sum, very similar considerations should ordinarily apply to those identified in Barder v Calouri [1988] AC 20 for an appeal out of time. Reopening should be contemplated only where anticipated circumstances have changed very significantly or cogent reasons make it unjust or impracticable to enforce the original amount. Section 31(7) affords somewhat greater latitude because it requires consideration of all the circumstances.
4. The claimant could not have obtained absolute finality merely by securing a single lump-sum order or other wording outside section 31. Such an order would remain vulnerable to an appeal out of time if sufficiently fundamental changes occurred, justice required reconsideration and the payer acted reasonably promptly. The distinction between the two procedural routes was therefore one of degree rather than kind.
5. The dramatic reduction in available equity and the former wife's inability to pay meant that a differently framed order might also have been reduced on a sufficiently prompt appeal. The claimant consequently failed to prove that proper advice would probably have prevented his loss. The anticipated equity and expected family funding also gave no substantial reason at the time of settlement to expect a later variation application.
6. The court refused permission to amend the notice of appeal to introduce allegations concerning the earlier period, dismissed the appeal with costs and refused permission to appeal to the House of Lords.

1. Court of Appeal (Civil Division): The claimant's appeal was dismissed unanimously. The dismissal of the negligence claim was upheld.
2. High Court: Judge Graham Jones, sitting as a High Court judge, dismissed the claimant's negligence claim on 21 October 1997.