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Williams v Lindley (formerly Williams) [2005] EWCA Civ 103

Where a supervening event following the making of a consent order is of great significance, permission to appeal out of time should be given and a re-hearing directed.

Court of Appeal: Thorpe, Buxton and Smith LJJ

(10 February 2005)


Where a supervening event following the making of a consent order is of great significance, permission to appeal out of time should be given and a re-hearing directed.


This case concerns a husband's appeal against the refusal of a judge to grant permission to appeal out of time an order for financial provision made in November 2002. The parties to this appeal were married in 1984 and have two sons. In 1998, the wife went to work for Mr and Mrs Lindley, providing home care for Mrs Lindley who was an invalid. Mrs Lindley died in April 2000 and the wife received a modest inheritance under her will; after the death of Mrs Lindley, the wife was employed by Mr Lindley (28 years her senior) as a housekeeper. The husband and wife separated in August 2001, at which time the wife and both children moved into Mr Lindley's house; the younger son returned to live with his father in the family home in June 2002.

The wife petitioned for divorce in September 2001, and commenced ancillary relief proceedings in April 2002. In those proceedings, the central issue was whether the husband should retain the former matrimonial home and, if so, what lump sum he should pay to the wife to enable her to re-house herself. In November 2002, a consent order was made approving payment to the wife of a lump sum of £125,000, representing in total a 70:30 split in the wife's favour.

In February 2003, the wife and Mr Lindley announced their engagement, and they were married in May 2003. On 17 June 2003, the husband applied to set aside the consent order, seeking leave for a re-hearing and for the necessary extension of time, on the basis that the order had been invalidated by subsequent events. The application sought the specific relief that the husband pay to the wife such lump sum as achieved the result that the assets of the parties were now divided equally on a clean-break basis.

At the hearing in May 2004, the judge considered the respective asset positions of the parties, and concluded that the applicant had failed to satisfy the first condition in Barder, namely 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'. Accordingly, the application to extend the time-limit for applying for a re-hearing was refused.

The husband appealed on the ground that the judge had erred in principle in making his assessment of the first condition in Barder in the light of the financial circumstances of the parties in May 2004; and, further, that the disclosure ordered by the judge was unnecessarily detailed for determining an application for re-hearing but insufficiently detailed to enable him to carry out a reassessment having regard to all the criteria enshrined in Matrimonial Causes Act 1973, s 25.


Held, allowing the appeal (Buxton LJ dissenting), that the husband had consented to an order, in the light of the wife's urgent need to re-house herself and the children, that was plainly rendered unfair by the wife's almost immediate subsequent engagement, and he had never had the judicial assessment of fairness, in the light of all relevant considerations, to which he was entitled. (The parties were urged to take advantage of the Court of Appeal ADR scheme, which makes special arrangements for mediation in family appeals.) Consequently, a re-hearing would be ordered before a district judge in the county court, if the reference to the Court of Appeal ADR scheme was refused or if it subsequently failed.

Per Buxton LJ: all that was sought on the appeal to the judge was an adjustment of the distribution of the matrimonial capital; accordingly, the appeal should be dismissed since there was no ground on which the judge could properly be criticised, and the court's emphasis in Harris v Monahan on the public interest in the finality of litigation should be respected.

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