BT v CU [2021] EWFC 871 November 2021

Published: 11/03/2022

H’s application to set aside financial remedy order on basis that the downturn in his company’s value during the covid-19 pandemic constituted a Barder event (Barder v Barder [1988] AC 20). In order to succeed, H had to meet four conditions set out in Barder, and show that there was no alternative mainstream remedy, and that event was unforeseeable withing meaning of J v B (Challenge to Arbitral Award) [2016] EWHC 324 (Fam) at [36]. H’s application unsuccessful as did not invalidate the fundamental basis of the order as required by Barder. Discussion of Thwaite jurisdiction (Thwaite v Thwaite [1982] Fam 1) and jurisdiction to alter time for payment and quantum of lump sum by instalments.

Application correctly made under FPR 9A and PD9A at 13.8, which deals with procedure in respect of the general power of set-aside found in s31F(6) Matrimonial and Family Proceedings Act 1984, rather than appeal out of time.

Anonymisation of judgment to protect children, but notes his ‘default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity’ [113].

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