B v B

A consent financial order may be reopened under the Barder principle only where a supervening event invalidates the order’s fundamental basis. The event must occur shortly after the order, be unforeseen and unforeseeable, and justify the conclusion that an appeal would be certain or very likely to succeed. Ordinary market fluctuation, even if substantial, is insufficient. A valuation later shown to be wrong may justify reopening where the applicant was not responsible for the error. Non-disclosure may assist only where it concerns matters not reasonably foreseeable or discoverable at the time. The jurisdiction is exceptional and does not operate as a general power to share later increases in asset value.

The parties divorced proceedings begun in 2000 and later reached a comprehensive financial agreement. A consent order required the husband either to remortgage the former matrimonial home and pay the wife a lump sum or sell the property and pay her from the proceeds. After the remortgage failed, the husband refurbished the property and sold it for substantially more than the valuation used for the order.

The wife sought permission to appeal out of time, alleging valuation error, misrepresentation and a supervening Barder event. The central issue was whether the later increase in value invalidated the fundamental assumption on which the consent order had been made.

1. The wife’s application for permission to appeal out of time was dismissed. The applicant was ordered to pay the respondent’s costs, subject to assessment if not agreed.

2. The applicable threshold was whether an appeal would be certain or very likely to succeed. The first Barder condition requires a new event which invalidates the basis or fundamental assumption of the order. The other conditions concern the timing of the event, promptness of the application and prejudice to third parties.

3. Following the analysis in Cornick v Cornick [1994] 2 FLR 530, the court distinguished between: a correctly valued asset later changing value through natural price fluctuation; a valuation which was wrong when made; and an unforeseen and unforeseeable event which dramatically alters the balance of assets. Natural market fluctuation does not become a Barder event merely because it is substantial.

4. The valuation-error argument failed. Valuation was inexact, the property was in poor condition, the market was rising, and the refurbishment and additional sale arrangements materially contributed to the price. The wife could not show that the valuation adopted at the time of the consent order was fundamentally wrong.

5. The misrepresentation argument also failed. The evidence did not establish deliberate concealment of the husband’s intention to improve the property. Even if non-disclosure had occurred, it could assist only if the matter was not reasonably foreseeable or discoverable by inquiry.

6. The increase in value was foreseeable. The rising market was common knowledge, and the husband’s intention and ability to carry out improvement works could have been established by reasonable inquiry. The resulting increase was therefore not a qualifying supervening event.