BT v CU

JurisdictionEngland & Wales
CourtFamily Division
Neutral Citation[2021] EWFC 87
Family Court *BT v CU [2021] EWFC 87 2021 Oct 7, 8; Nov 1 Mostyn J

Marriage - Financial provision - Final order - Final order in financial remedy proceedings requiring husband to make series of lump sum payments to wife - Husband retaining business providing school meals - Value of husband’s business falling dramatically due to Covid-19 pandemic - Whether final order to be set aside in part - Whether pandemic unforeseeable new event invalidating basis on which final order made - Whether alternative remedies available - Whether parties to be anonymised in judgment - Matrimonial Causes Act 1973 (c 18), s 31F1 - FPR r 9.9AF2

At the conclusion of financial remedy proceedings the district judge made a final order requiring the husband to pay to the wife, inter alia, a series of lump sums. The effect of the order was to divide the total assets in the ratio 58:42 in the husband’s favour. The district judge justified that departure from equality by reference to the fact that the most valuable asset retained by the husband, namely a business providing school meals, had an element of risk and, since it pre-dated the marriage, a non-matrimonial constituent. A few months later the Covid-19 pandemic caused the country to go into lockdown and shortly afterwards all schools were closed. The husband applied under FPR r 9.9A to set aside parts of the final order on the basis that the arrival of the pandemic was a “Barder event”, namely an unforeseeable new event which invalidated the basis, or fundamental assumption, upon which the order had been made.

On the application—

Held, refusing the application, that when assessing whether a new event was unforeseeable in a case where it was said that the event had caused a major shift in the value of assets the court should principally focus on the economic impact of the event rather than its cause or nature; that, thus, in the present case the correct question was not whether it had been foreseeable that a global pandemic would arise which had the result of wiping out the operating profit of the husband’s business but, rather, whether it had been foreseeable that a global financial crisis would arise which had the result of reducing the business’s turnover and increasing costs, to which the answer was “yes”; that, moreover, the basis of the final order had been that the husband would be retaining assets which were risky, and for that reason would be granted a greater than equal share of the assets; that, therefore, the Covid-19 pandemic had not been a Barder event for the purposes of the present case since it had not been unforeseeable and had not invalidated a fundamental assumption on which the final order was based; and that, accordingly, the husband had failed to make out grounds for setting aside any part of the final order (post, paras 21, 3334, 36, 39, 99).

Barder v Barder [1988] AC 20, HL(E), Cornick v Cornick [1994] 2 FLR 530 and Myerson v Myerson (No 2) [2010] 1 WLR 114, CA applied.

Per curiam. (i) Although the court has power to enlarge the time for payment of lump sums or alternatively to stay execution of their payment for no longer than a reasonably short period, outside of the Barder doctrine there is no power to award a permanent stay of execution of such payments, let alone a power to replace the lump sums with alternative provision. Likewise, although the court has power under section 31 of the Matrimonial Causes Act 1973 to vary a lump sum payable by instalments by recalibrating the payment schedule, that power cannot achieve the setting aside or alteration of the overall quantum, which can only be done under the Barder doctrine. Accordingly, neither of these remedies is capable of being an alternative to a successful application to set aside a lump sum order under the Barder doctrine (post, paras 5152, 55, 67, 9698).

Thwaite v Thwaite [1982] Fam 1, CA and R v R (Financial Order: Replacement) [2018] 4 WLR 68 considered.

(ii) It is time to abandon the convention that a judgment on a financial remedy application should be anonymised. Such judgments should be published in full without anonymisation, save that any children should continue to be granted anonymity (post, paras 103109, 113).

Crowther v Crowther [2021] EWFC 88 considered.

The following cases are referred to in the judgment:

Akhmedova v Akhmedov [2020] EWHC 2235 (Fam); [2021] 1 FLR 667

Barder v Barder [1988] AC 20; [1987] 2 WLR 1350; [1987] 2 All ER 440; [1987] 2 FLR 480, HL(E)

Benson v Benson, decd [1996] 1 FLR 692

Bezeliansky v Bezelianskaya [2017] EWCA Civ 76; [2017] 2 FCR 1, CA

Birch v Birch [2017] UKSC 53; [2017] 1 WLR 2959; [2018] 1 All ER 108; [2017] 2 FLR 1031, SC(E)

CB v EB [2020] EWFC 72; [2021] 1 WLR 579; [2021] 2 FLR 257

Coleman v Coleman [1973] Fam 10; [1972] 3 WLR 681; [1972] 3 All ER 886

Cornick v Cornick [1994] 2 FLR 530

Crowther v Crowther [2021] EWFC 88

FRB v DCA (No 3) [2020] EWHC 3696 (Fam); [2021] 1 FCR 739

G v C [2020] EWFC B35 (OJ); sub nom Kicinski v Pardi [2021] EWHC 499 (Fam); [2021] 3 FCR 481

Hamilton v Hamilton [2011] EWHC 3951 (Fam); [2013] EWCA Civ 13; [2013] Fam 292; [2013] 2 WLR 1440; [2014] 1 FLR 55, CA

J v B (Family Law Arbitration: Award) [2016] EWHC 324 (Fam); [2016] 1 WLR 3319; [2016] 2 FLR 1308

Judge v Judge [2008] EWCA Civ 1458; [2009] 1 FLR 1287, CA

L v L (unreported) 13 October 2006, Coleridge J

L v L [2006] EWHC 956 (Fam); [2008] 1 FLR 26

Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315; [2011] 1 FLR 1427, CA

Masefield v Alexander (Lump Sum: Extension of Time) [1995] 1 FLR 100, CA

Mullins v Howell (1879) 11 Ch D 763

Myerson v Myerson (No 2) [2009] EWCA Civ 282; [2010] 1 WLR 114; [2009] 2 FLR 147, CA

Penrose v Penrose [1994] 2 FLR 621, CA

Practice Direction (Citation of Authorities) [2001] 1 WLR 1001; [2001] 2 All ER 510

Prest v Petrodel Resources Ltd [2013] UKSC 34; [2013] 2 AC 415; [2013] 3 WLR 1; [2013] 4 All ER 673; [2013] 2 FLR 732, SC(E)

Purcell v F C Trigell Ltd [1971] 1 QB 358; [1970] 3 WLR 884; [1970] 3 All ER 671, CA

R v R (Lump Sum Repayments) [2003] EWHC 3197 (Fam); [2004] 1 FLR 928

R v R (Financial Order: Replacement) [2018] EWHC 606 (Fam); [2018] 4 WLR 68; [2018] 2 FLR 843

Raja v Van Hoogstraten [2018] EWHC 3261 (Ch)

R v Bloomsbury and Marylebone County Court, Ex p Villerwest Ltd [1976] 1 WLR 362; [1976] 1 All ER 897, CA

Rose v Rose [2002] EWCA Civ 208; [2002] 1 FLR 978, CA

Richardson v Richardson [2011] EWCA Civ 79; [2011] 2 FLR 244, CA

Siddiqui v Siddiqui [2021] EWCA Civ 1572, CA

Street v Mountford [1985] AC 809; [1985] 2 WLR 877; [1985] 2 All ER 289, HL(E)

Thwaite v Thwaite [1982] Fam 1; [1981] 3 WLR 96; [1981] 2 All ER 789, CA

Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518; [2012] 1 WLR 2591; [2012] 4 All ER 259, CA

Tilley v Tilley (1979) 10 Fam Law 89, CA

US v SR [2018] EWHC 3207 (Fam); [2019] 2 FCR 91

Walkden v Walkden [2009] EWCA Civ 627; [2010] 1 FLR 174, CA

Westbury v Sampson [2001] EWCA Civ 407; [2002] 1 FLR 166, CA

The following additional case was referred to in the skeleton arguments:

Martin v Martin [2018] EWCA Civ 2866; [2019] 2 FLR 291, CA

APPLICATION

On 27 April 2020 the husband, BT, applied pursuant to FPR r 9.9A to set aside parts of the final order made in financial provision proceedings on 10 October 2019 by District Judge Hudd, sitting at the Central Family Court, whereby she had ordered the husband, inter alia, to pay the wife, CU, a series of lump sums on 1 November 2019, followed by four payments at yearly intervals ending on 1 November 2023. The husband contended that the arrival of the Covid-19 pandemic was both unforeseen and unforeseeable and its impact had caused devastating financial consequences which invalidated the fundamental assumptions on which the final order had been based. On 12 January 2021 Judge Evans-Gordan sitting at the Central Family Court directed that a hearing be listed before a High Court judge to determine the following preliminary issues: (i) was Covid capable of being a Barder event? (ii) had the applicant established sufficient grounds to set aside the final order, whether in part or in full?

The hearing was held in private and the judgment is reported with permission of the judge on the strict understanding that no publication or report of the judgment should reveal (i) the identities or residence of the parties or their children, (ii) the schools of the children, or (iii) the name of the applicant’s business.

The facts are stated in the judgment, post, paras 13, 2330.

Alexander Chandler (instructed by Osbornes Law) for the husband.

Amy Kisser (instructed by Mills & Reeve) for the wife.

The court took time for consideration.

1 November 2021. MOSTYN J handed down the following judgment.

1 On 10 October 2019, District Judge Hudd made a final order at the conclusion of a four-day trial of the financial remedy proceedings between the parties. She ordered the husband (as I shall call the applicant) to pay the wife (as I shall call the respondent) £950,000 in a series of lump sums commencing with £150,000 on 1 November 2019, followed by four payments of £200,000 at yearly intervals commencing on 1 November 2020 and ending on 1 November 2023. A pension sharing order of 30% of the husband’s pension was made. Tapering spousal maintenance in lieu of interest was ordered against the husband until payment of the final lump sum. The husband was ordered to pay child maintenance and school fees for the parties’ two children aged 17 and 15.

2 The effect of the order was to divide the total assets of £4.75m in the ratio 58%:42% in the husband’s favour. The district judge justified this departure from equality by reference to the husband’s retention of the most valuable asset—a business providing school meals. The retention of this business by the husband was not controversial—both parties proposed it in their open offers. This asset pre-dated the marriage and therefore to some extent had a non-matrimonial constituent. The shares in the company were characterised by the judge as having an element of risk and not comparable to cash in the...

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1 cases
  • XZ v YZ
    • United Kingdom
    • Family Court
    • 20 May 2022
    ...has made a specific order preventing publication”. 2 No doubt mindful of this statement, which follows similar statements in my judgments in BT v CU [2022] 1 WLR 1349, [2021] EWFC 87, A v M [2021] EWFC 89 and Aylward-Davies v Chesterman [2022] EWFC 4, the husband (“H”) applied in Form D11......

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