Maskell v Maskell

A loss of employment after an ancillary-relief order does not ordinarily constitute a Barder event justifying a fresh hearing. Employment of the kind in question is not necessarily permanent or secure. A court reviewing a financial order must compare like with like. Present capital cannot properly be treated as equivalent to pension benefits payable only on retirement, particularly where most of the pension is available only as an annuity. Where a lower court has failed to address that distinction and there is a substantial risk of injustice, the appellate court may set aside the related order, grant permission to appeal out of time and restore the appeal process.

The former spouses had three children in shared care, a heavily mortgaged home with modest equity, insurance policies and the husband’s pension. District Judge Pearl awarded the wife the whole equity and the more valuable policy. After the husband lost his employment, Judge O’Brien refused an extension of time to appeal and ordered enforcement of the earlier decision. A later application for a stay was also refused. The husband appealed to the Court of Appeal, which considered whether the employment loss justified reopening the order under Barder principles and whether the financial comparison underlying the order required reconsideration.

1. Appeal allowed. The Court of Appeal overturned Judge O’Brien’s order, granted permission to appeal out of time and directed that the subsequent orders of 14 July and 18 August either fall away or be stayed. The wife’s committal application was further adjourned.
2. Thorpe LJ held that the husband’s loss of employment did not amount to a Barder situation. It was not a permanent event, and employment of that kind could be lost through many ordinary economic circumstances. Judge O’Brien was therefore correct to refuse a fresh hearing on that basis.
3. Judge O’Brien nevertheless erred fundamentally by reassuring himself that the original order was conventional and correct. His comparison treated the husband’s pension as present capital. That failed to compare like with like. The pension was a deferred benefit, with only 25 per cent capable of being taken as capital and the balance payable through an annuity.
4. The Court of Appeal lacked the written evidence and note of District Judge Pearl’s judgment, but the resulting anxiety about possible injustice justified restoring the husband’s appeal. The court encouraged the parties to use mediation or the court’s ADR service.

• Court of Appeal (Civil Division): The court allowed the appeal, overturned Judge O’Brien’s order, granted permission to appeal out of time and made consequential directions concerning the later orders and committal application.
• Chelmsford County Court: District Judge Pearl made the ancillary-relief order after the final hearing on 29 October 1999. Judge O’Brien later refused an extension of time to appeal and dealt with enforcement consequences.
• High Court: Rix J made an order on 10 November 2000 from which the application proceeded to this court.