Walkden v Walkden

A final ancillary-relief capital settlement may be reopened under the Barder principle only where a truly exceptional, unforeseen and unforeseeable post-order event invalidates a fundamental assumption of the order. A foreseeable sale of a private-company shareholding, even at a much higher price than anticipated, does not satisfy that test.

Mistake is distinct from a Barder event. A party who knowingly compromises a disputed and speculative valuation without obtaining a formal valuation has allocated that risk and cannot later characterise the outcome as a shared mistake.

Following their divorce, the parties agreed a final capital settlement embodied in a consent ancillary-relief order of 27 April 2007. The wife had accepted fixed sums instead of a percentage of the proceeds of any future sale of the husband’s shares in Triesse Ltd.

Shortly afterwards, the company was sold and the husband received about £1.8 million for his shares. His wife obtained leave from His Honour Judge Hunt in the York County Court to reopen the order on the basis that the sale was a supervening Barder event. She had abandoned her pleaded non-disclosure ground, but relied on mistake by respondent’s notice.

The husband appealed. The central issues were whether the sale was unforeseen and unforeseeable for Barder purposes, and whether the settlement rested on a vitiating mistake about the shares’ value.

1. Appeal allowed unanimously. The court set aside the leave granted to reopen the final capital settlement. Thorpe LJ gave the principal judgment, with which Wall and Elias LJJ agreed.

2. The governing Barder inquiry was whether a post-order event, unforeseen and unforeseeable at the time of the order, had invalidated its fundamental assumption. The sale of the husband’s shares was not such an event. A future sale and possible substantial enrichment had been central to the parties’ negotiations. The wife had previously exchanged a percentage entitlement on a future sale for a fixed payment. The sale was therefore foreseeable, although its timing and price were uncertain. The court applied the finality-based approach in Barder v Caluori [1988] AC 20, Cornick v Cornick [1994] 2 FLR 530 and Myerson v Myerson [2008] EWCA Civ 1376.

3. Mistake is a vitiating element analytically distinct from a supervening Barder event. The correct sequence is to determine an alleged vitiating element first and only then, if it fails, consider a Barder event. On the facts, however, there was no common mistaken premise as to the shares’ value. The parties had deliberately compromised while disagreeing about an inherently speculative value and without a formal valuation. The wife chose certainty over the chance of a later sale at a higher price.

4. The wife could not revive her abandoned non-disclosure case as a prism through which to turn a negative Barder conclusion into a positive one. The alleged omissions did not make the foreseeable sale unforeseeable.

5. Wall LJ added that, absent a qualifying Barder event, the wife would also have been held to her informed capital bargain under Edgar v Edgar [1980] 1 WLR 1810. He further confirmed, obiter, that the duty of disclosure in ancillary-relief proceedings is full, frank and clear until the final order. The first-instance decision in I v I [2008] EWHC 1167 (Fam) was wrongly decided and was not to be relied upon or cited.

• Court of Appeal (Civil Division) — allowed the husband’s appeal and set aside the leave to reopen the final capital settlement: [2009] EWCA Civ 627.
• York County Court — His Honour Judge Hunt granted the wife leave to reopen the ancillary-relief order as a supervening Barder event.