Hasan, Statutory Construction, and the Barder Conundrum

Published: 01/07/2023 14:21


By now there will be plenty of material online summarising the decision in Hasan and proffering some commentary. I appeared as junior counsel for the Respondents in the appeal (led by Andrzej Bojarski and Tim Amos KC, instructed by Expatriate Law). The Appellants were represented by Michael Horton KC, Greg Williams and Shrishti Suresh, instructed by Dawson Cornwell. The Appellants’ team (ever quick off the mark) have already authored a blog post on this site.

The background to the appeal is pithily contained in the Supreme Court press summary and is covered in the Appellants’ blog post. The central issue was whether further proceedings could be taken in an application brought under Part III of the Matrimonial and Family Proceedings Act 1984 (‘Part III’ and ‘the 1984 Act’) after one or both of the parties has died. Or, put another way, whether an as-yet-undetermined Part III application could continue notwithstanding the death of one or both of the parties. The orthodoxy established through case law stretching back more than a century was that undetermined financial remedy claims were purely personal and could not be continued after the death of a party.

The appeal was solely concerned with a Part III application. The Appellants understandably cast their submissions more widely and implied the logic applicable to the ‘abatement’ of Part III claims must apply equally to claims for a financial remedy made under the Matrimonial Causes Act 1973 (‘the 1973 Act’).

In his judgment below, Mostyn J attacked the established orthodox understanding that such undetermined claims could not survive the death of a party. He focused his analysis on the extent to which a Part III claim was a cause of action capable of enduring the death of a party within the ambit of the Law Reform (Miscellaneous Provisions) Act 1934. He also zeroed in on the Barder conundrum. It is well established that in the context of Barder appeals (now pursued as set aside applications), the court can re-determine financial remedy applications after the supervening death of a party. If financial remedy applications end on death, what power is the court exercising to achieve this? Mostyn J concluded that the only explanation was that the underlying claim had, as a matter of law, survived the death of a party. I’ll come back to this issue shortly.

Both parties agreed on the ‘test’ at the centre of the appeal: the approach laid down by Lord Brandon of Oakbrook in Barder itself. Lord Brandon decried the generalised use of the term ‘abatement’, and said that ‘the real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken’. The ‘answer’ to that question was, per Lord Brandon, to sequentially consider three further questions:

  • The first matter is the nature of the further proceedings sought to be taken
  • The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both
  • The third is the applicability of section 1(1) of the 1934 Act

The Supreme Court endorsed this approach. Giving the primary judgment of the court, Lord Stephens considered at §34 that:

‘Mostyn J incorrectly went straight to the third matter identified by Lord Brandon, namely the applicability of section 1(1) of the 1934 Act. He failed to consider and to make any determination in relation to Lord Brandon’s anterior second matter, namely whether, on the true construction of the relevant statutory provisions, further proceedings in the suit can or cannot be taken when one of the parties had died.’

So whilst Mostyn J’s analysis was ‘excellent… as far as it goes’, it was ‘flawed given his failure to determine the true construction of the relevant statutory provisions’.

The Respondents’ submissions focused almost entirely on a contextual and textual construction of the 1984 Act (alongside, where relevant, the 1973 Act and the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’)). After all, if a true construction of the statute(s) established that Parliament did not intend for a Part III claim to survive the death of a party, then the applicability of the 1934 Act was academic. The Supreme Court adopted the same approach.

In Lord Stephens’ main judgment, the court determined that a contextual and textual interpretation of the relevant statutory provisions clearly established that Parliament did not intend for a Part III claim to survive a party’s death. The main pillars in support of that conclusion were:

  • When passing the 1973, 1975 and 1984 Acts, Parliament must be presumed to have been aware of the long line of authority, stretching from Thompson [1896] P 263 to Sugden [1957] P 120 to D’Este [1973] Fam 55 that held that rights against one’s spouse are personal only and do not survive the death of either spouse. ‘If a purpose of the statutes was to depart from that settled understanding, one would have expected clear words to that effect’.
  • The decision of the Court of Appeal in Harb [2003] EWCA Civ 1324, whilst postdating the passing of the relevant legislation, was a further authority in support of constructing the 1973 Act against the background of how earlier legislation had been interpreted and understood.
  • Parliament enacted s 14 of the 1975 Act, which made special provision for a former spouse prevented from obtaining a share of the family assets in matrimonial proceedings by the death of the other spouse. They did so on the recommendation of the Law Commission. Parliament wouldn’t have done this (and the Law Commission wouldn’t have recommended it) if it had understood and intended that a matrimonial claim could simply be continued against the deceased’s estate.
  • Section 25(2) of the 1984 Act amended s 25(1) of the 1975 Act to include a person divorced abroad within the limited definition of ‘former wife’ and ‘former husband’. This extended the relief available under the 1975 Act to those divorced overseas. Again – this was done on the recommendation of the Law Commission. That amendment would have been unnecessary if such a spouse divorced overseas could have simply maintained a claim for financial provision under the 1984 Act instead.
  • A true construction of the 1984 Act should avoid duplication that would otherwise be created if there were two different routes to secure financial relief on the death of the other party (via the 1975 Act and/or by continuing a Part III claim against the estate).
  • The availability of non-time limited relief via the 1984 Act did not sit well with the six-month time limit imposed by section 4 of the 1975 Act, which was again recommended by the Law Commission. Why would such a time limit have been imposed if there was another, non-time-limited route to a remedy after a party’s death?
  • The availability of relief under the 1984 Act would render the domicile requirement of the 1975 Act otiose. Why would such a requirement have been imposed if there was another route to a remedy where the respondent was not required to have been domiciled in England and Wales at death?

Lord Stephens went on to conduct a textual analysis of the language of the 1984 Act, which supported the contextual analysis above. Lord Leggatt, in his supplementing judgment, described the contextual interplay between the 1973, 1975 and 1984 Act as the ‘decisive point’.

In deciding this appeal, the Supreme Court made clear its reservations about the potential injustice that could be caused by the extant state of affairs. Lord Leggatt expressly agreed with Mostyn J’s description of the difference in outcome where a party dies shortly before versus shortly after a case is decided as ‘illogical, arbitrary and capable of meting out great injustice’. However, the court’s task was not to determine what the law should be, but about what the law was – i.e. what Parliament intended when it enacted the 1973, 1975 and 1984 Acts. In his penultimate paragraph, Lord Leggatt suggested that any reform aimed at remedying the identified injustice would require ‘an overall view to be taken of both legislative regimes (inheritance and matrimonial) and of how they do, and should, interact’. It was not open to the Supreme Court to ‘cut the Gordian knot and achieve a solution by interpretation of the existing statutory provisions’.

This outcome represents the continuation of the orthodoxy. It cannot come as a great surprise to anyone. That said, from my perspective, there is a conundrum that remains.

What is happening in a post-death Barder determination?

A lot of intellectual effort was directed at this question. If a matrimonial claim dies with a party, what is the court doing when it re-determines such a claim upon a successful Barder appeal? Mostyn J pointed out that Lord Brandon’s speech in Barder suggested that the court could go further on a Barder appeal than simply set aside the order made and return the parties to the prior proprietary positions – it could actually vary the order and make an alternative disposition. He pointed out subsequent authorities where the court had done exactly that. His questions were (1) what power was the appeal court applying to do so, and (2) what discretionary power was it wielding when redetermining a case post-death? After a review of the authorities, Mostyn J concluded that the only explanation for this was if the cause of action had survived a party’s death, which ‘triggers the ss 23–25 powers and discretion’.

What did Barder itself have to say on the point? Lord Brandon applied his three-stage approach:

  • The nature of the proceedings to be taken was an appeal out of time to a judge of a divorce county court against an order made in a divorce suit by a registrar of that court.
  • The relevant provisions relating to such a rule were 123(1) of the Matrimonial Causes Rules 1977. He determined that the right to appeal out of time was a statutory one, and on a true construction of the rule, the jurisdiction of a judge to entertain an appeal out of time did not lapse on a party’s death.
  • The question of the applicability of the 1934 Act therefore did not arise.

The appellant’s core submission on this point, rallying behind Mostyn J’s logic, was that there is no difference between a determination and a re-determination. They submitted that once the court broke the seal and began to re-determine Barder cases post-death, it was demonstrative of a party’s death not precluding the continuation of that claim. They identified trends in the authorities where attempts to challenge sharing-based awards after a party’s death had been unsuccessful, whilst challenges to needs-based awards had succeeded. The Respondents submitted that this was a mischaracterisation. All the Barder jurisprudence showed was the court adjusting orders already made with the benefit of hindsight. The Respondents pointed out that in cases like Richardson [2011] EWCA Civ 79, Smith [1992] Fam 69, Reid [2003] EWHC 2878 (Fam) and Barber [1993] 1 FLR 476, the court conducted the same exercise: notionally travelling back in time to the date at which the case was determined and putting itself in the ‘hypothetical position’ (per Glidewell LJ in Barber) of a trial judge with knowledge of one party’s imminent death. It was not exercising discretion afresh in favour of/against a dead party. It was exercising its powers conferred by the originating statute (the 1973 or 1984 Act), but within the context of a permissible appeal which preserved those powers beyond the death of a party. All of this was taking place within the strict confines of the appellate jurisdiction.

The Supreme Court did not expressly endorse either party’s analysis. In contrast to the voluminous submissions that had been poured onto this tricky issue, it dealt with the anomaly briefly at paragraph 100, describing it as a:

‘discrete but limited exception to the general rule that the 1973 Act creates personal rights and obligations which end with the death of a party to the marriage… I consider that this limited exception is not a sufficient basis on which to undertake a radical change to the construction of matrimonial legislation’.

The Supreme Court’s dismissal of this issue probably renders pointless any further application of cognitive effort to it. But one small point still niggles. In Barder, Lord Brandon directed his three-stage test to the statutory provisions governing appeals out of time. He answered his second question in the affirmative, namely that a true construction of the statutory provisions did permit an application for leave to appeal out of time to be made after a party’s death. But the introduction of FPR 9.9A in 2016 has led to Barder challenges now being pursued by way of set aside application to the first instance judge where no error of the court is alleged, rather than applications for leave to appeal out of time.

The Appellants conducted an impressive analysis of the evolution of the law in relation to appeals and set aside applications. Their overarching submission was that the development of the set aside procedural jurisdiction showed that there was nothing special about Barder appeals (as opposed to set aside applications), and it made no difference that such challenges were now pursued by way of set aside instead. It may not matter, and the debate may be semantic. But there is a grey area.

The Respondents submitted that the power at FPR 9.9A is underpinned by s 31F(6) of the 1984 Act. The Appellants suggested it flows from s 17(2) of the Senior Courts Act 1981. That distinction may or may not matter. But it cannot be denied that the statutory basis for Barder appeals changed fundamentally in 2016 with the advent of FPR 9.9A. It is well established that the FPR 9.9A/s 31F(6) power is not a licence for the Family Court to set aside its own orders unfettered. The bases for set aside are confined to the ‘traditional grounds’ of fraud, mistake, material non-disclosure, Barder events, undertakings, and maybe where orders remain executory. The concerning point is that to my knowledge, per the second limb of Lord Brandon’s approach, nobody has carried out a ‘true construction of the relevant statutory provisions’ now governing Barder appeals since the 2016 rule change. Given that the Supreme Court have conceptually accepted the Barder jurisdiction as a ‘discrete and limited exception to the general rule’, perhaps the precise nature of the statutory basis for the power doesn’t matter. Perhaps I need to get out more.

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