W sought to plead as a Barder event the fact that certain shares had subsequently been sold by H at a substantially higher value than had been anticipated on the making of the financial relief order on the parties’ divorce. Alternatively, she argued, the case as being one of mistake. She sought to have re-opened that financial settlement.
Held: She failed on both points. failed on both grounds.
Thorpe LJ said: ‘The argument advanced is simple; all proceeded on a mistaken premise, namely that the husband’s shares were worth the sum which, although not certain, was on the husband’s evaluation, about 10% of what they fetched 3 months after the order. That contention is unpersuasive for the very simple reason that there was no consensus as to the value of the shares. Throughout years of effort to enhance her share of the assets, the wife had emphasised the potential and the high field of the possible value of the shares. Inevitably the husband had countered that, stressing that a sale was possible anywhere between pounds 1m and pounds 1. This was the area in which the parties and their solicitors most regularly fenced and in reaching a compromise in January 2007 each must have taken a view as to this dominant unknown and each must have been satisfied that the highly speculative value of the shareholding was duly reflected in the compromise.’ There was plainly no Barder event, and the supervening event in the case, the sale of the husband’s shares shortly after the agreement between the parties, involved no dramatic and unexpected turnaround in the company’s performance and was itself neither unforeseen nor unforeseeable.
Wall LJ and Elias LJ agreed.
Elias LJ commented in relation to Barder that: ‘It was plainly foreseeable that an asset of this nature might fluctuate dramatically.’
In relation to the argument based on alleged mistake Elias LJ said:
‘As to the mistake argument, there seem to me to be two inter-related problems. The first is that there never was any agreement as to the value of the shares . . On the contrary, there was a clear recognition that the parties were at odds over the true valuation . .
A second and related problem is that the possibility that the shares may be sold at a higher price was foreseen at the time. In my judgment, that is as much an answer to a claim in mistake as it is to a claim based on the Barder principle. In Edmonds v Edmonds [1990] 2 FLR 202 a consent order was made on the assumption that a house was worth pounds 70k. That figure was identified after the judge had heard expert evidence from the wife. The husband contended that the house was worth significantly more but did not obtain his own expert evaluation. Subsequently the house was sold for pounds 110k and he sought to have the settlement reopened, either on Barder grounds or mistake. The action failed. Butler Sloss LJ, with whose judgment Nourse LJ agreed, noted that the husband had been in a position to influence the valuation but he had chosen not to obtain the relevant evidence. In those circumstances he could not challenge the value placed on the property by the judge. Similarly here; it is true that no value was ever placed on the shares at all either by the parties or by the judge when he made the order in April, but in my view, the wife cannot be in a better position because she was prepared to reach a settlement without any formal figure being assessed at all. The parties took their chance on the value but that is quite different from saying that they were mistaken about it.’
Judges:
Thorpe, Wall, Elias LJJ
Citations:
[2009] EWCA Civ 627, [2009] 3 FCR 25, [2009] Fam Law 1023
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Barder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
Cited by:
Cited – S v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 28 July 2022; Ref: scu.347421
