In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully killed the two children and then committed suicide. The husband sought leave to appeal out of time, and to have the consent order set aside.
Held: The House considered the principles to be applied when looking at applications for leave to appeal out of time.
Lord Brandon: ‘My Lords, the question whether leave to appeal out of time should be given on the ground that assumptions or estimates made at the time of the hearing of a cause or matter have been invalidated or falsified by subsequent events is a difficult one. The reason why the question is difficult is that it involves conflict between two important legal principles and a decision which of them is to prevail over the other. The first principle is that it is in the public interest that there should be finality in litigation. The second principle is that justice requires cases to be decided, so far as practicable, on the true facts relating to them, and not on assumptions or estimates with regards to those facts which are conclusively shown by later events to have been erroneous.
In appeals from the High Court to the Court of Appeal, and from the Court of Appeal to your Lordships’ House, there is a discretion to admit evidence relating to supervening events where refusal to admit it would plainly cause serious injustice. This has been established by three cases in the field of actions for damages for death or personal injuries: Curwen -v- James [1963] 1 WLR 748; Murphy -v- Stone-Wallwork (Charlton Ltd [1969] 1 WLR 1023 and Mulholland -v- Mitchell [1971] AC 666.’
Lord Brandon considered the circumstances in which an unexpected supervening event might lead to an ancillary relief order being set aside: ‘There can, in my opinion, be no doubt that the consent order dated 20 February 1985 was agreed between the husband and the wife through their respective solicitors, and approved by the registrar, upon a fundamental, though tacit, assumption. The assumption was that for an indefinite period, to be measured in years rather than months or weeks, the wife and the two children of the family would require a suitable home in which to reside. That assumption was totally invalidated by the deaths of the children and the wife within five weeks of the order being made.’ and ‘My Lords, the result of the two lines of authority to which I have referred appears to me to be this. A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that 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 second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. That fourth condition is that 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.’
Lord Brandon
[1988] AC 20, [1987] 2 All ER 440, [1987] 2 WLR 1350, [1988] Fam Law 18
England and Wales
Citing:
Appeal from – Barder v Barder (Caluori Intervening) CA 1987
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Cited by:
Cited – Currey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
Cited – Swindale v Forder CA 31-Jan-2007
In ancillary relief proceedings, the matrimonial home had been transferred to the wife subject to a charge in favour of the husband’s partner not to be enforced until a certain date. That partner now sought the early sale of the property sayng that . .
Cited – Dixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Roult v North West Strategic Health Authority CA 20-May-2009
The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to . .
Lists of cited by and citing cases may be incomplete.
Family, Litigation Practice
Leading Case
Updated: 09 November 2021; Ref: scu.246715