Barder v Caluori
|Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Brightman,Lord Templeman,Lord Oliver of Aylmerton
|20 May 1987
|Judgment citation (vLex)
| UKHL J0520-1
|20 May 1987
|House of Lords
 UKHL J0520-1
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Oliver of Aylmerton
House of Lords
I have had the advantage of reading the speech to be delivered by my noble and learned friend Lord Brandon of Oakbrook. I agree with it and for the reasons he gives I would allow the appeal.
The appellant David Barder ("the husband") and Christina Barder ("the wife") were married in 1973. There were two children of the family: a boy born in 1976 and a girl born in 1978. The marriage became unhappy and in July 1983 the husband left the wife. After he left the wife continued to live with the children at Hollybourn, Tarrant Gardens, Hartley Wintney, in Hampshire, a house with five bedrooms which was owned jointly by her and the husband and had been their final matrimonial home. In February 1984 the wife presented in the Basingstoke County Court a petition for divorce founded on the husband's adultery. The suit was undefended and in July 1984 the wife was granted a decree nisi and care and control of the children with reasonable access to the husband. In September 1984 the decree was made absolute and the husband re-married.
Proceedings for ancillary relief ensued and came before Mr. Registrar Fuller in the Basingstoke County Court on 20 February 1985. Negotiations took place at the court and agreement was reached on the terms of a consent order on a clean break basis.The registrar gave his approval and made a consent order in the terms agreed. The order was expressed to be made in full and final settlement of all claims made or capable of being made by the wife or the husband against each other or their respective estates. It provided that the husband should within 28 days transfer to the wife all his legal and equitable interest in Hollybourp and its contents, the wife undertaking that on such transfer being made she would redeem the existing mortgages on the house. There were also undertakings by the husband to effect the re-assignment to the wife of three policies of life assurance held by one of the mortgagees, and by the wife to effect the reassignment to the husband of two other policies of life assurance held by the other mortgagees. The husband was further ordered to make substantial periodical payments to the children.
On 25 March 1985 an appalling tragedy supervened when the wife unlawfully killed the two children and then committed suicide.
At the time of the wife's death the registrar's order dated 20 February 1985 was still executory, the various instruments necessary to give effect to it not yet having been completed. The time for appealing against the order, fixed at five days by rule 124(1) of the Matrimonial Causes Rules 1977 ( S.I. 1977) No. 344 (L.6)), had expired about a month earlier.
On 23 April 1985 the husband issued a notice in the Basingstoke County Court asking for leave to appeal out of time against the registrar's order. The application was supported by an affidavit sworn by a partner in the firm of solicitors acting for the husband. In paragraph 1 he summarised the effect of the registrar's order. In paragraph 2 he stated that Hollybourn had been valued in December 1984 at £135,000 to £137,000 and was subject to mortgages totalling £42,500, so that the husband's half share in the equity had at that date been worth about £47,000. He further stated that the total surrender value of the three policies of life assurance of which the husband had undertaken to effect the re-assignment to the wife had at the same date been about £9,500. He did not state the surrender values at that date of the two other policies of life assurance of which the wife had undertaken to effect the re-assignment to the husband. In paragraph 3 he referred to the tragic deaths of the children and the wife and stated that the registrar's order had not been executed. In paragraph 4 he stated that the order would be enforceable on behalf of the wife's estate and that it appeared that the wife's mother would be the sole beneficiary of that estate. In paragraph 5 he set out the grounds of the husband's application as follows:
"The basis upon which the order was made has been fundamentally and unforeseeably altered by the circumstances of the death of the petitioner and of the two children. The net effect of the order if it were to stand would be to confer a wholly unexpected benefit upon the petitioner's mother who is not a member of the family unit for whom the Matrimonial Causes Act is intended to make provision, and whom it is understood is a woman of substantial means in her own right."
On 22 August 1985 the wife's mother, Jacqueline Caluori, was granted letters of administration of the wife's estate, and on 18 September 1985 she was given leave to intervene in the suit in order to oppose the husband's application. On 15 November 1985 Judge Smithies sitting in the Basingstoke County Court gave the husband leave to appeal out of time, and, having done so, allowed the appeal and set aside the registrar's order dated 20 February 1985. The judge rejected a submission on behalf of the intervener that he had no jurisdiction to extend the time for appealing and stated his ground for allowing the appeal as being that the basis of the order had been vitiated by a fundamental mistake, common to both parties, that for an appreciable time after the order the wife and children would continue to live and benefit from the order.
The intervener appealed to the Court of Appeal which by a majority (Stephen Brown and Woolf L.JJ., Dillon L.J. dissenting) on 9 May 1986 allowed the appeal, set aside the order of Judge Smithies and restored the order of the registrar. The husband, by leave of your Lordships' House, now appeals from the order of the Court of Appeal.
In the judgments given in the Court of Appeal three questions were considered. The first question was whether the wife's death had caused the suit to abate, so that the county court judge had no jurisdiction to entertain the husband's application for leave to appeal out of time. I shall refer to that as the question of abatement. The second question was whether, if the judge had jurisdiction to entertain the husband's application for leave to appeal out of time, he was right to exercise his discretion by giving such leave. I shall refer to that as the question of leave to appeal. The third question was whether, if the judge had jurisdiction to entertain the husband's application for leave to appeal, and if he was right to exercise his discretion by giving such leave, he was also right to allow the appeal and set aside the registrar's order. I shall refer to that as the question of merits on appeal.
The three members of the Court of Appeal were divided in more than one way in their answers to these three questions. Dillon L.J. answered the question of abatement in the negative and the questions both of leave to appeal and of merits on appeal in the affirmative. On that basis he considered that the appeal should be dismissed. Stephen Brown L.J. answered the question of abatement in the affirmative and considered that the appeal should be allowed on that primary ground. Being of that opinion on the question of abatement, he did not need to answer either the question of leave to appeal or the question of merits on appeal. Woolf L.J. answered the question of abatement in the negative but went on to answer the question of leave to appeal also in the negative. He considered that the judge's decision should be reversed on the basis of his answer to the latter question. Since he was of that opinion, it was not strictly speaking necessary for him to deal with the question of merits on appeal. He did, however, deal with that further question, saying that, if leave to appeal out of time was to be given, the appeal would undoubtedly have to be allowed. He expressed the view that Judge Smithies had erred in treating the two questions of leave to appeal and of merits on appeal as posing the same problem, instead of two separate and different problems.
My Lords, in this appeal it becomes necessary to examine afresh the three questions considered by the Court of Appeal. I propose, however, to take them in a different order from that in which I discussed them above, dealing with the question of abatement first, the question of merits on appeal second, and the question of leave to appeal third. I do this because, with great respect to Woolf L.J., I cannot accept his view that the question of leave to appeal and the question of merits on appeal should be treated independently of each other. On the contrary, for reasons which I shall develop later, I consider that the former question is closely linked with the latter.
The doctrine of abatement of a divorce suit by the death of one of the parties to it was much relied on by leading counsel for the intervener. He contended that the doctrine, when applied to the present case, produced the result that, while the court had jurisdiction, on the application of the intervener, to enforce the registrar's order against the husband, it had no jurisdiction to entertain an appeal against the order by him. This result is so obviously unjust that it becomes necessary to examine the authorities on the doctrine of abatement in order to see whether it is supported by them. Just such an examination was made by the Court of Appeal (Sir John Arnold P., Ormrod and Dunn L.JJ.) in , a decision which was, unfortunately, not cited to the Court of Appeal in the present case.
In Matrimonial Causes Act 1973, i.e. on five years... a husband had obtained a decree nisi of divorce against his wife under section 1(2)( a) of the
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