Thomas v Thomas

On a second appeal, permission is available only where there is an important point of practice or principle, or another compelling reason. Appellate courts should not interfere with valuation findings supported by evidence unless there is a plainly demonstrable error outside the generous ambit of reasonable judgment.

An inheritance expected after final ancillary-relief orders may raise questions under Barder principles if it substantially alters a fundamental assumption underlying the order. The court must consider whether the event was sufficiently new and unforeseen, and which earlier order supplies the relevant point for assessing proximity. Those questions may justify permission for a limited second appeal even though the ultimate merits remain unresolved.

The parties’ long marriage ended after they entered into a separation agreement. The agreement was set aside, and District Judge Hayes made ancillary-relief orders in November 2000. The husband’s appeal to His Honour Judge Curl was dismissed on 30 July 2001.

The husband then sought a rehearing under Order 37 rule 1 of the County Court Rules, relying on the wife’s inheritance following her father’s death. Judge Curl rejected the alleged non-disclosure. The husband sought permission to appeal, to adduce fresh evidence, and to pursue a second appeal concerning asset valuations and related matters. The central issues were whether the inheritance justified reconsideration under Barder v Barder, and which order governed the assessment of the new event’s proximity.

1. Order 37 application. The application to reopen the ancillary-relief orders for non-disclosure was dismissed. The inheritance was not a resource likely to become available in the reasonably foreseeable future when the original proceedings were heard. The relevant information had been available to the district judge and had not been pursued as an available resource. The later inheritance therefore did not establish non-disclosure.
2. Second appeal. The appeal from Judge Curl’s decision was a second appeal for the purposes of CPR 52. Permission could therefore be granted only for an important point of practice or principle, or another compelling reason. The challenges to the valuation of shares, land and a motor vehicle, the treatment of payments under the separation agreement, and the husband’s use of the former matrimonial home did not meet that threshold. The findings were supported by evidence, and no plainly demonstrable or grievous error was shown.
3. Fresh evidence and Barder. The wife’s inheritance had crystallised after the earlier orders and might arguably falsify a fundamental assumption about the resources properly available. The court identified two potentially important questions: whether the inheritance was a sufficiently new event under Lord Brandon’s first requirement, given the earlier knowledge of the father’s condition; and whether proximity should be assessed from the district judge’s order or Judge Curl’s appellate order. Those points were not decided on the merits but justified a limited further hearing.
4. The application was adjourned to be heard on notice before two members of the Court of Appeal. Costs were costs in the application.

• Court of Appeal (Civil Division): permission was refused on the valuation and ancillary-relief grounds. The application concerning the inheritance and Barder principles was adjourned for determination on two limited points.
• Norwich County Court: District Judge Hayes made ancillary-relief orders on 22 November 2000. His Honour Judge Curl dismissed the husband’s appeal on 30 July 2001 and dismissed the Order 37 rehearing application on 12 April 2002.