Horne v Horne

Permission to appeal out of time from a financial order based on later events requires an event which invalidates the order’s fundamental basis, occurs within a relatively short time, and is raised promptly. The appeal must be certain or very likely to succeed.

A correctly valued asset’s subsequent fall in value through ordinary market fluctuation is not a Barder event, however dramatic the fall. Foreseeable business losses are treated similarly. A statutory variation route for instalment payments remains distinct from a Barder appeal, although the threshold is almost as stringent.

Following the parties’ separation, a financial order required the husband to retain the family business, the wife to receive the former matrimonial home, and the husband to pay her a lump sum by instalments.

After property values fell and the business continued to make losses, the husband sought to reopen the order on Barder principles. The Oxford County Court admitted fresh material at the hearing and allowed his appeal. The wife appealed to the Court of Appeal, raising the proper application of the Barder principles and the fairness of the procedure adopted below.

Disposition and procedure

1. The Court of Appeal unanimously allowed the appeal and set aside the Oxford County Court’s order. The county court hearing had been conducted on an inadequate basis: the respondent had not been given proper notice of the case to meet, fresh evidence was admitted without a prior application, and the matter was unsuitable for a one-hour final hearing. Directions should have been given to place the case on a proper footing.
2. Lord Justice Thorpe applied the principles stated by Lord Brandon in Barder v Caluori [1988] AC 20. Leave to appeal out of time requires new events since the order which invalidate its basis or fundamental assumption, such that the appeal would be certain or very likely to succeed. The event must occur within a relatively short time, and the application must be made reasonably promptly.
3. Following the analysis in Cornick v Cornick [1994] 2 FLR 530, the court distinguished between a correctly valued asset whose value later changes through ordinary market fluctuation, an erroneous valuation, and an unforeseen and unforeseeable event causing a dramatic change in asset values. Ordinary fluctuation, even if substantial, cannot be used as a disguised variation of the order.
4. The property falls and continuing business losses were foreseeable, or within the range of foreseeability, when the original order was made. They therefore did not constitute a qualifying Barder event. Lord Justice Sullivan added that the county court judge had not found that the proposed appeal was certain or very likely to succeed; a merely arguable case and unsatisfactory evidence were insufficient.
5. As an important rider, Lord Justice Thorpe observed that variation under section 31(7) of the Matrimonial Causes Act 1973 provided a separate jurisdictional route. Under Westbury v Sampson [2002] 1 FLR 166, the approach in an essentially Barder case should be almost as stringent, although the statutory requirement to consider all the circumstances permitted marginally greater latitude. This observation did not indicate that a further application would succeed.

• Court of Appeal (Civil Division) — In [2009] EWCA Civ 487, allowed the wife’s appeal and set aside the order of HHJ Corrie.
• Oxford County Court — HHJ Corrie, judgment handed down on 8 December 2008, allowed the husband’s appeal and treated the financial changes as a Barder event.
• Oxford County Court — District Judge Gatter made the original financial order on 14 November 2007.