Answer: when there is a “Barder” event.
How does this translate? A Barder event may give those a second chance who have entered into a consent order regarding their financial affairs, or against a court order which has been made after a contest, but later events make the terms of that order, in their eyes at least, unfair.
These cases are rare, but those who feel that they have been wronged, may wish to re-visit the terms of their settlement.
For a set of circumstances to come within the “Barder” remit the following elements should be present:
- New events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made; and if permission to appeal out of time were granted the appeal would be very likely to succeed.
- The new events occurred within a relatively short time of the order being made (a few months but less than a year after).
- An application for permission to appeal should be made promptly.
- A grant of permission to appeal out of time should not prejudice any third party who has acted in good faith and has acquired an interest (for valuable consideration) in any property relevant to the dispute.
In a recent case involving a Mr and Mrs Critchell the terms of the consent order provided for the wife to retain the marital home (worth £190,000, with equity of £175,000), and for the wife and their two teenage children to remain living at the property until the youngest child reaching 18 years old/finishing full time secondary education; the wife’s death; her remarriage or cohabitation; or sale of the property. The husband was given a charge on the property to receive 45% of the net sale proceeds on sale to pay his debts. Both parties had very modest incomes and earning potential at the time.
However within a month of the consent order the husband’s father died, leaving him an inheritance of £180,000. Mrs Crichell claimed that this was a Barder event. Mrs Critchell appealed against the terms of the original consent order.
At first instance the judge allowed the wife’s appeal and extinguished the husband’s charge on the property.
The husband appealed to the Court of Appeal, but failed. It was held that the decision should not be interfered with: the impact of the inheritance so soon after the hearing meant the husband no longer needed the 45% of the equity in the marital home to pay off his debts, as he could now do so from his inheritance. The court stated that the case came within Barder principles since the husband’s inheritance soon after the order was made represented a change in the basis, or fundamental assumption, upon which the consent order had been made.
It was emphasised however by the Court of Appeal Judge that it is in the public interest for there to be finality in litigation, and that principle of finality should only be interfered with in rare cases such as Critchell which was merely illustrative of the application of the strict Barder principles to the particular stark facts of the case, and did not change the jurisprudence on the subject.
That was of course a good result for Mrs Crichell, but it is a shame that the parties were not able to sit down and agree to vary the original consent order (and formalise the variation through the court) to avoid the stress and the significant legal costs which would have been incurred during the appeal process.
If you would like to discuss such matters, and possibly action , as a result of reading this article, Anita Garside-Slinger of Ringrose Law, 2 Bargate, Newark NG24 1ES, tel: 01636 594460, email: firstname.lastname@example.org, would be pleased to provide advice.