The Court of Appeal decision Black LJ set out Lord Brandon’s four conditions (see above). The husband had conceded before Judge Wright that the second, third and fourth conditions were satisfied in this case. As such, the issue was over the first condition:
'…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 Court of Appeal held that Judge Wright had considered that the original order had been based upon need. While the wife’s needs had remained the same, the husband’s needs had changed. The inheritance meant that the husband no longer required his interest in the former matrimonial home to discharge his indebtedness on his current home. The debt to his father was extinguished, he had received approximately £180,000 in inheritance and so he could redeem the mortgage and still have a surplus of cash.
Therefore, this represented a change in the basis or fundamental assumption on which the consent order was made. The value of the parties' assets had not increased, but there was a fundamental change in the needs for which provision had to be made. Black LJ held that need is a relative concept which is affected by how much there is to go round. If more resources are available, needs can be provided for more fully or less precariously. Therefore, Black LJ found that Judge Wright was entitled to substitute her own order for the consent order, this was 'wholly unexceptionable' and dismissed the appeal.
In reaching this conclusion Black J emphasised that it is rare for a case to come within the Barder principle.
Thoughts Although this case is useful, in that it shows that Barder events are not obsolete, the judgment makes clear that successful Barder cases are limited. This is due to the fact that they involve a conflict between two important legal principles. One principle is that cases should be decided, so far as practicable, on the true facts, and the other principle is that there is a public interest in litigation being final. The importance attributed to this second principle can be seen by the court’s reluctance over the years to allow appeals out of time due to claimed Barder events. This case was not intended to change the jurisprudence on the matter, and turned on its facts.
The facts of this particular case demonstrate that in financial remedy proceedings it is worth parties looking at what their and their spouse’s inheritance prospects might be. Although this can be very difficult to predict, in cases where there are aged relatives, it may be worthwhile factoring this in, in order to avoid an appeal on Barder principles later.