FRB v DCA (No. 3)

Reopening the quantum of a final lump-sum order by instalments is exceptional. The applicant must provide prima facie evidence of a fundamental and significant change in personal wealth. General evidence of economic disruption, without asset-specific financial evidence, is insufficient. The court may distinguish between reopening the overall quantum and recalibrating the payment timetable. Interest on unpaid instalments is discretionary and must reflect the circumstances of each tranche, including whether the recipient is actually kept out of the relevant part of the award. Legal-services funding may be ordered where the funded party lacks reasonably available resources, particularly where the paying party has the means and has failed to comply with the substantive award.

The judgment concerned applications arising from a final financial-remedies order requiring the husband to transfer the former matrimonial home and pay a lump sum of £49 million by instalments. Following the economic disruption caused by Covid-19, the husband sought variation of the order, or alternatively reopening and re-quantification on a Barder-event basis. He relied principally on general economic conditions and proposed a wide-ranging revaluation of assets, but provided little asset-specific evidence.

The wife sought increased interim maintenance, interest on unpaid instalments and a legal-services payment order. The central issues were whether the lump-sum award should be reopened, how interest should be dealt with, and whether the husband should fund further litigation.

1. Husband’s variation application. The application to vary the quantum of the lump-sum award was dismissed. Under the approach stated in Westbury v Sampson [2002] 1 FLR 166, the power under section 31 of the Matrimonial Causes Act 1973 may extend to varying the principal sum, but that power must be used particularly sparingly because of the importance of finality. Reopening overall quantum should be confined to cases involving a very significant change, or cogent reasons making it unjust or impracticable to hold the payer to the original order.
2. The husband had not established a prima facie case. General evidence that Covid-19 had affected hotels, airlines, tenants and other sectors did not demonstrate a collapse in his global wealth. He provided no adequate trading figures, accounts, underlying documentation, valuations, or clear evidence of what he was worth, what he could pay, and when. A speculative and extensive revaluation exercise was therefore refused.
3. The court left open the possibility that the timing of instalments might in principle be recalibrated, although the husband had not shown a basis for that relief.
4. Interest and maintenance. Interest was awarded at 4 per cent per annum on the unpaid £30 million tranche only. Interest was refused on the mortgage-related tranche and the later £19 million tranche. The court regarded an immediate award on the latter as oppressive in the prevailing economic circumstances. Interim maintenance was increased by £1.2 million per annum, backdated to 30 September 2020, subject to further submissions on implementation.
5. Legal-services funding. The husband was ordered to fund specified outstanding and future litigation costs. The wife had no reasonably available alternative funding, and it was inappropriate to require her to exhaust her limited resources or charge assets when the husband was wealthy, had been found deceitful, and had paid none of the lump sum. The costs issue remained open in relation to some proceedings, with directions to avoid double recovery.
6. The wife’s unproceeded application concerning decree absolute was dismissed rather than adjourned generally. Further submissions were invited on the timing of payments.

The judgment records that the Court of Appeal refused the husband’s application for permission to appeal the substantive financial-remedies order on 18 August 2020. The present judgment determined subsequent variation and ancillary applications in the Family Court.