CAROLINE HELY HUTCHINSON Barrister
Family, Divorce and Matrimonial Lawyer
Legal Advice and Efficient, Practical Help in Resolving
Matrimonial and Family Issues
Sir James Munby examines the appropriate procedure to challenge a Consent Order of a District Judge on the basis of material non disclosure. He held that the last sentence of PD30A para 14.1 was ultra vires as it purported to make an appeal the only route of challenge, which ignored the long established procedure, as reflected in FPR 4.1(6), to permit an application to the judge at first instance to vary or revoke the order. The apparent conflict required the practice direction to yield to the Family Procedure Rules 2010. Accordingly, the wife did not need permission to apply to vary the terms of the Consent Order.
BARDER EVENTS and VITIATING MISTAKE
A new event, invalidating the basis of a fundamental assumption on which and order was made
DB v DLJ 2016 EWHC 324 - Mostyn J reviews the "unforseeability" of a Barder Event
A review of the authorities on the exceptional nature of a Barder event, not one that was unforeseen by the parties or court, but unforeseeable.
He also considered the authorities and a nature of a "vitiating mistake", giving a number of tests for establishing such a claim (and cf Wilson LJ in Judge v Judge 2008)
Mostyn J also confirmed that the proper procedure to set aside an order by reason of such an occurence was by application to the court which made the original order.
Court of Appeal upheld Judge’s finding that the death of H’s father within a month of consent order was a rare, Barder event in this needs based case. Mesher order set aside as inheritance allowed both parties to have a home without the difficulties of a Mesher event in around 8 years time.
Earlier Authorities include Barber 1993, Smith 1991, WA v Executors of HA 2015, Reid 2004, Richardson 2011 and Walkenden 2010.
where order of the court has not been carried into effect
Bezeliansky v Bezeliaskaya 2016 EWCA 76 - McFarlane LJ confirms the doctrine of Ormrod LJ in Thwaite v Thwaite 1982 FLR 1 where a conveyance had not been executed and thus the matter was still before the court.
Also see L v L 2006 EWHC 956