Myerson v Myerson

A financial provision order cannot ordinarily be reopened merely because an asset, correctly valued when the order was made, later undergoes a natural market fluctuation. This remains so however dramatic the change. Relief under the Barder jurisdiction may be available where an unforeseen and unforeseeable event fundamentally invalidates the basis of the order, occurs within a relatively short time, and is raised reasonably promptly.

A party who knowingly retains speculative assets under a consent order ordinarily bears the resulting gains and losses. Where a lump sum is payable by instalments, the available statutory jurisdiction to vary outstanding instalments may also prevent an appeal from being certain or very likely to succeed.

The parties compromised the wife's ancillary relief application at a financial dispute resolution appointment before Baron J. The resulting consent order gave the wife assets worth £11 million, principally through a £9.5 million lump sum payable partly by instalments. The husband retained substantial shares in his fund-management company.

After the company's quoted share price fell dramatically during the global financial crisis, the husband applied for permission to appeal the consent order out of time. He contended that the collapse had made the agreed division unfair and unworkable within the principles of Barder v Calouri. He had also invoked the statutory jurisdiction to vary the unpaid lump-sum instalments.

The central issue was whether the fall in value constituted a qualifying new event which invalidated the fundamental basis of the consent order.

1. Permission to appeal was granted, but the appeal was dismissed unanimously. A dramatic change in comparative wealth following a financial provision order permits reopening only within the limited Barder jurisdiction. The event must invalidate the basis or fundamental assumption of the order. It must also make an appeal certain or very likely to succeed, occur within a relatively short time, and be raised reasonably promptly.

2. The fall in the company's share price was a natural process of market fluctuation. An asset correctly valued at the hearing does not enter the Barder jurisdiction merely because its value subsequently changes, however dramatically. A contrary approach would use an appeal out of time as a disguised power to vary a final capital settlement, which Parliament had deliberately withheld. The analytical categories stated in Cornick v Cornick were applied.

3. The consensual character of the order reinforced that conclusion. The husband had detailed knowledge of the company and voluntarily retained his controlling, speculative shareholding while undertaking to pay the wife a fixed sum. He retained the opportunity to benefit from future gains and could not require the court to rewrite the bargain after the risk materialised adversely.

4. The lump sum was payable by instalments, and the husband had already invoked the statutory power under section 31 of the Matrimonial Causes Act 1973 to seek variation of the unpaid instalments. The width of that jurisdiction meant that an appeal concerning sums already paid or property already transferred had uncertain prospects. The husband therefore failed the requirement that the appeal be certain or very likely to succeed.

5. A qualifying “event” need not be a single concrete occurrence such as liquidation. It may comprise happenings, developments or occurrences. The appeal also had been brought reasonably promptly after the husband recognised the extent of his financial crisis. Neither point, however, overcame the failure to establish a qualifying change or likely appellate success.

1. Court of Appeal (Civil Division): Granted permission to appeal but unanimously dismissed the appeal from the consent order.
2. High Court, Family Division: Baron J perfected a consent order on 19 March 2008 following the parties' compromise at a financial dispute resolution appointment.