X v Y

An appellate court should interfere with a discretionary or evaluative decision only where the judge failed to consider a relevant matter, considered an irrelevant matter, or reached a plainly irrational conclusion. In applications to reopen a financial remedy decision before the order is perfected, exceptional circumstances are unnecessary, but finality remains highly important. New evidence requires good reason, including due diligence, before the finality principle is displaced. The court must approach the application through the Family Procedure Rules 2010 overriding objective. Where the first-instance judge has carefully balanced finality, costs, delay, uncertainty and the parties’ needs, an appellate court should not substitute its own assessment merely because another conclusion is possible.

The wife appealed against HHJ Spinks’s written determination of 31 May 2024 rejecting her application to reopen a financial remedy decision under the jurisdiction described as a Barrell application. The original decision followed a final hearing concerning the parties’ financial claims on divorce and awarded the husband a larger share of the matrimonial home’s sale proceeds because of his housing needs.

After the husband’s father died, the wife argued that the resulting inheritance materially altered the financial circumstances and justified reconsideration. She also alleged procedural unfairness and relied on the later grant of probate. The wife sought permission to appeal out of time and permission to appeal. The central issue was whether HHJ Spinks had exercised his discretion wrongly or with serious procedural irregularity.

1. Permissions. Permission to apply out of time was granted under rules 4.5 and 4.6 of the Family Procedure Rules 2010. The delay was adequately explained and did not outweigh the interests of the administration of justice. Permission to appeal was also granted because the wife’s case had a real prospect of success.
2. Applicable appellate approach. The decision under challenge was a discretionary or evaluative exercise. Under rule 30.12(3) of the Family Procedure Rules 2010, intervention required a wrong decision or serious procedural irregularity. An appeal against discretion succeeds only where relevant matters were omitted, irrelevant matters considered, or the conclusion was plainly irrational. Otherwise appellate review is at its most benign.
3. Reopening before perfection. The principles identified by HHJ Spinks from In the matter of L and B, AIC Ltd v Federal Airports Authority of Nigeria and AR v ML were sound. The court may alter a decision before the order is perfected, and exceptional circumstances are not required. However, new evidence requires good reason, including due diligence, to depart from the finality principle. Finality is particularly important in financial remedy proceedings. The application must be approached through the overriding objective, with the factors favouring reopening overcoming the weight attached to finality.
4. HHJ Spinks had considered the new evidence, the uncertainty surrounding the inheritance and trust, the husband’s housing needs, prior cross-examination about family support, the substantial costs already incurred, further likely costs, delay and the children’s welfare. His decision to favour finality was rational and within the range of discretion. The later grant of probate did not materially alter that assessment.
5. The alleged procedural irregularity was not established. The relevant estate material had been disclosed before submissions, no additional time had been sought, and the parties had agreed that the application could be determined on paper. A partial reconsideration would still have required reopening the decision.
6. Disposition. The application to apply out of time and permission to appeal were allowed, but the appeal was dismissed. The stay was to be discharged.

• High Court (Family Division): Appeal against HHJ Spinks’s determination dated 31 May 2024 dismissed. The application to apply out of time and permission to appeal were granted, and the stay was directed to be discharged.