The Barder principle comes from the 1987 case of Barder v Barder, and allows a family law court to exercise its discretion to grant leave to appeal a Consent Order or a Final Order, out of time. For such an appeal to succeed, certain conditions must be satisfied.
The case of Barder was a very unfortunate and sad series of events and that in itself demonstrates the very limited circumstances in which the principle will be applied by courts. In the Barder case the wife killed the children and committed suicide five weeks after the consent order had been made. The husband appealed the consent order and the highest court in England at that time, The House of Lords, held that it was acceptable to appeal out of time in view of the fact that the basis upon which the order had been made was now totally invalid.
Lord Brandon set down four principles which must be satisfied for a Barder application to be available:
- New events have occurred since the making of the order, which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed.
- The new events should have occurred within a relatively short time of the order having been made. In most cases this would be no more than a few months.
- The application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
- The grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.
Therefore the category of events which may occur after the Order was made and which qualify as Barder events are very limited. It could be said that it applies only in the most extreme or unlikely of events following the Final Order or Consent Order.
In Richardson v Richardson EWCA 79, Lord Justice Thorpe stated:
Cases in which a Barder event, as opposed to a vitiating factor, can be successfully argued are extremely rare, and should be regarded by the specialist profession as exceedingly rare, and should not be thought to be extendable by ingenuity or the lowering of the judicially created bar.
The best way to try to understand Barder applications and cases is to look recent cases based on this and see how the judges are deciding these. One recent case was the case WA v Executors of the Estate of HA & Others EWHC 223 (Fam). It involves a wife’s appeal against a consent order for financial provision, based on the husband’s suicide (just 22 days after making the order). She argued that this constituted a Barder event.
Background to the case of WA v The Executors of HA
The wife was an heiress who was described by Moor J as being “fabulously wealthy”. The wife had approximately £413 million in assets (mostly in untouchable trusts) and the husband £2 million. Prior to the marriage, in 1997, the parties entered into a prenuptial agreement – essentially a property separation agreement – and throughout the marriage finances were kept very separate. The parties and their three minor children lived on a very large estate worth £30 million. The property was purchased during the marriage in a dilapidated state and renovated to a very high standard during the marriage. Neither party ever undertook any paid employment during the marriage – the wife earned £1.8 million income alone from her trust assets.
The marriage broke down in 2014 and the husband took the breakdown very badly. Following separation, the parties successfully negotiated a financial settlement at FDR where the wife would pay the husband £17.34 million in full and final settlement. The prenuptial agreement was never brought up in the negotiations by either side. The consent order provided that the lump sum would be paid in two tranches of £8.67 million, the first to be paid within 14 days, and the second within 14 days of the mother-in-law vacating a cottage on the family estate. The first tranche was paid on time and the husband transferred money to enable his mother to be rehoused. The second tranche was never paid, initially by agreement, and then by a stay imposed by Moor J, as a result of the husband committing suicide.
The husband’s will left his entire estate to his three adult brothers. The wife was deeply disturbed that it was not left to the children. Eventually it was this “elephant in the room that led to the litigation, which made the case famous.
The wife’s notice of appeal relied on Barder, arguing that the fundamental basis of the consent order was that the lump sum was required by the husband to meet his needs, and that basis had ended with his death. The wife sought the entirety of the order to be set aside and for money already paid to be returned to her.
The Parties Arguments
The husband’s executors argued that the husband’s death was not foreseen by the wife, but it was not unforeseeable. They argued that the order was not a needs order and was, in essence, a sharing order in general and with the FMH in particular – that he had earned his share and in any event the court should exercise its discretion to uphold the order.
The wife argued that the husband’s death was definitely not foreseeable. She said that his mental health had been investigated by professionals and, that in due course, he had been given a clean bill of health. She argued that she would never have agreed to pay him such a large sum if she had known of his intentions. The award was a needs-based award and sharing played no part in negotiations or computation of the award. Had the court known the full facts when it made the order, it would have proceeded on the basis of what the husband’s needs were for the next 22 days only, because that is how long he lived after the making of the Order. It was the wife’s appeal that no payment should be made from her to the husband and whatever had been paid should be returned.
The Final Judgment
In his judgment, Moor J provided a short resume of the principles derived from different authorities relating to the three specific areas relevant to this appeal:
- The Barder group of authorities
- Authorities relating to the approach of the court Miller and McFarlane
- Radmacher v Granatino .
Having reviewed the authorities, Moor J asked himself the following questions:
- Was the the husband’s death foreseeable?
- If not, was his award a sharing award or a needs-based award?
- If it was a needs-based award, what award was now appropriate?
Was the husband’s death foreseeable?
Moor J considered a great deal of evidence in respect of the husband’s mental health, including evidence from the eldest child, police and the husbands psychiatrist.
Moor J came to the conclusion that the husband’s suicide was not foreseeable. He remarked that “if it had really been foreseeable…the wife or her advisors would have come to that conclusion and contact would have stopped, whether by professionals or by the court”. The fact that she willingly paid him over £17 million was also relevant. If she had believed that his death was foreseeable, she would not have agreed to this award being made and her lawyers would not have let her. She clearly made the offer expecting him to live a normal length life.
If not, was his award a sharing award or a needs-based award?
Having decided this, the judge then moved to his second principle question; If not, was his award a sharing award or a needs-based award? Here Moor J concluded that the husband’s claim was primarily needs-based. The husband’s solicitor had previously told DDJ Coleman during the proceedings that the husband was getting a payment “which enabled him to buy himself a nice property and keep himself, and will have no financial anxieties”. Moor J saw this as a clear evidence to it being a needs-based award. The wife’s lawyers could have referred to the prenuptial agreement as being clearly designed to exclude sharing, but they did not. Given the conclusions reached by Moore J, it followed that the order was therefore able to be set aside pursuant to the Barder jurisdiction. The fundamental assumption underlying the order was the husband’s housing and income needs in the long term. This assumption was totally invalidated by his death within one month of the order being made.
Moor J asked himself, ‘If I had been sitting in court in November 2014, knowing that the H would die in less than a month, what would my award have been?‘
He held that a nil award would have been wrong.
Moor J concluded that it would not be right to award the husband a full equal share on FMH given the fact that all the finance came from the wife. The wife disclosed net value of estate in her sole name to be £14.9 million. Moor J held that 1/3 share of W’s net share in the FMH would have been appropriate = £5 million. He further held that the pre-nuptial agreement would not have prevented this as it had clearly been ignored during negotiations and parties cannot pick and choose effectiveness of prenuptial agreement. It followed that this court would pay very little attention to that prenuptial agreement in these circumstances.
Moor J rejected the argument that the husband had no ‘needs’. The wife and husband had taken on responsibility for the mother-in-law and she needed to be rehoused. He held that it was not reasonable for that to be funded from the husband’s assets alone. Other brothers were available to take responsibility for their mother, but it had been agreed between them that this brother and his wife were to be responsible for the mother-in-law.
Moor J allowed the appeal and reduced the lump sum from £17.34 million to £5 million. The executors of the husband’s estate were therefore required to pay the wife £3.6 million from the first tranche payment.
This case is an example of how the Barder principles are applied by courts. Anyone seeking to appeal a consent order or challenge a Final Order out of time needs to take particular care to ensure that their case is a strong one. This is even more so because when challenging a Consent Order or Final Order on an appeal, the court can Order that the successful party’s legal fees be paid by the unsuccessful party. Therefore the risks are even higher.
The full judgment can be read in full here.
For more information on Challenging Consent Orders see here