Blooman v Blooman

At the permission stage, the Court of Appeal acts as a court of review. It asks whether the lower court’s order was legally open on the facts, rather than whether it would have reached the same result.

An agreement reached at a financial dispute resolution appointment may be binding and converted into a financial order, even where an issue was omitted, if the party seeking to reopen it knew of the omission when negotiating. Conduct under section 25(1)(g) of the Matrimonial Causes Act 1973 is relevant only where it would be inequitable to disregard it. An unforeseen event justifying an out-of-time challenge must strike at the order’s basis, occur within a relatively short time, and satisfy the other Barder conditions.

Mr Larry John Blooman sought permission to appeal from orders made by Her Honour Judge Black in the Brighton County Court on 18 March 2008. Judge Black had dismissed his application to set aside a financial order made by District Judge Merrick on 23 March 2006 and refused permission to appeal that order out of time.

The order incorporated terms said to have been agreed at a financial dispute resolution appointment in ancillary-relief proceedings. Mr Blooman disputed whether the parties had agreed the treatment of the former matrimonial home’s contents. He also raised alleged non-disclosure concerning a Florida property, duress, undue influence, conduct, and a later forced sale. The central issues were whether the agreement was binding and capable of being made an order under sections 23 to 25 of the Matrimonial Causes Act 1973, and whether any later or procedural ground justified reopening the order or extending time.

The application for permission to appeal was refused.

1. The Court declined to apply strictly the second-appeal provisions in section 55(1) of the Access to Justice Act 1999 and CPR 52.13. The applications before Judge Black had been alternative applications to set aside a financial order and to obtain permission to appeal out of time. The ordinary permission test in CPR 52.3(6) therefore applied: a real prospect of success or another compelling reason for the appeal to be heard.
2. The Court of Appeal’s function at this stage was supervisory. It was a court of review, not a court of first instance. The question was whether Judge Black’s order was properly open to her as a matter of law on the facts. If both lower courts had adopted courses properly open to them, permission should be refused even if the appellate judge might have reached a different conclusion.
3. On the Xydhias point, the agreement reached at the financial dispute resolution appointment was binding and capable of being made into an order. Mr Blooman had entered negotiations knowing that the contents had been disposed of and without bringing them into account. His later attempt to reopen that issue did not assist him; any remedy arising from the solicitors’ failure lay against them. The agreement could properly be converted into an order under sections 23, 24 and 25 of the Matrimonial Causes Act 1973. Its favourable effect for Mrs Blooman did not invalidate it.
4. Conduct under section 25(1)(g) of the Matrimonial Causes Act 1973 could be considered only where it would be inequitable to disregard it. Miller v Miller [2006] UKHL 24 showed that the threshold was high. The approach concerning conduct and prior agreements discussed in Edgar v Edgar [1980] 1 WLR 1410 did not govern an agreement reached after the alleged misappropriation of the contents; in any event, it would not alter the result. Proven later conduct frustrating the sale or remortgage of the Florida property might, however, be relevant to a subsequent application.
5. Orders for lump sums and property adjustment could not be made before decree nisi and could not become effective or enforceable before decree absolute. There was no basis to impugn the decree absolute. The Court also considered whether the later nominal sale of the Florida property was a Barder event. Under Barder v Calouri [1988] A.C. 20, the event had to strike at the basis of the order and the conditions for an out-of-time appeal included a very likely successful appeal, a relatively short interval, prompt application, and absence of prejudice to third parties. The timing requirement was not met. Possible remedies, including variation of periodical payments and relief concerning lump-sum instalments, had to be pursued at first instance.

• Court of Appeal (Civil Division): Permission to appeal from Judge Black’s order was refused in [2009] EWCA Civ 109.
• Brighton County Court, circuit judge: On 18 March 2008, Judge Black dismissed the application to set aside District Judge Merrick’s financial order and refused permission to appeal out of time.
• Brighton County Court, district judge: On 23 March 2006, District Judge Merrick approved the agreement reached at the financial dispute resolution appointment and directed that it be incorporated into a court order.