Read v Obe

A consent order may be challenged for misrepresentation or material non-disclosure without satisfying the strict requirements governing applications based on a supervening event under Barder v Barder [1988] AC 20. Where that case has not been properly identified or investigated before an application is made, the court may adjourn the application to give the respondent a fair opportunity to answer the allegation.

The applicant sought permission to appeal a consent order made in the Bournemouth County Court on 29 June 1998. She asserted that the respondent husband might have received up to £3.8 million from the later sale of a company which he owned when the order was negotiated.

The application was advanced under the principles in Barder v Barder [1988] AC 20, but the court considered that the substance of the complaint was instead possible misrepresentation or material non-disclosure. The respondent had not been given a fair opportunity to address that case. The central issue was whether the application should proceed immediately or be adjourned for investigation and evidence.

1. Application adjourned. The Court of Appeal did not determine permission to appeal or the substantive allegations. The application was relisted for a later hearing, with costs reserved.
2. The later sale of a company could potentially be relied upon as a supervening event within the narrow principles established in Barder v Barder [1988] AC 20. The court indicated, however, that the respondent might be right that the case did not fall within those principles.
3. The substance of the applicant’s complaint appeared to be that the consent order had been obtained through misrepresentation or material non-disclosure. Such an allegation may be raised to set aside a consent order without satisfying the strict tests applicable under Barder v Barder [1988] AC 20.
4. Because that case had been articulated for the first time at the hearing, and the respondent asserted that he had disposed of his shareholding before the later sale for only £75,000, fairness required an adjournment. The respondent was directed to file an affidavit explaining developments since the compromise negotiations and to exhibit the essential documents.

• Court of Appeal (Civil Division): Application for permission to appeal the consent order was adjourned for further evidence and relisting.
• Bournemouth County Court: Consent order made by His Honour Judge Chalkley on 29 June 1998.