Cobb J. Effect of James v Seymour [2023] EWHC 844 (Fam) – summary here – on top-up child maintenance previously agreed in Sch 1 proceedings.

A long-running case, in which there is are previous reported judgments at [2016] EWHC 1964 (as MG v FG) and [2022] EWFC 118 – summarised here – and M is subject to an extended civil restraint order.

Galbraith-Martin is the father of one child by the applicant. In 2018 a periodical payments order was made in Schedule 1 proceedings. In 2022, this was varied by consent so that F was to pay £2,684 per month and thereafter each year F was to disclose his tax returns to M and pay on all his income up to £650,000 a percentage equivalent to that formula which the CSA would have used if it had jurisdiction.

This judgment concerns F’s application to vary or set aside that consent order on the basis that he had been guided by the approach that Mostyn J had said was appropriate. That approach did represent the law at the time. However, a few months later, in April 2023, Mostyn J delivered a judgment in James v Seymour in which he applied a different methodology. F sought to align the maintenance with the methodology in James v Seymour on the basis that it would be unfair to hold him to the formula which Mostyn J had now accepted was inequitable in many cases, and that the judgment in James v Seymour was a Barder event: it was unforeseeable, and invalidated the fundamental assumption on which consent was given and the order made. The mother argued that the case was not on all fours with James v Seymour and that the father’s agreement to the 2022 order was to prevent closer scrutiny of his financial position.

Cobb J dealt with the application on the basis of written submissions only, and both parties were unrepresented.

Held: This was ‘a most unusual situation’. Mostyn’s judgment in the present case did give a clear steer and:

‘There are not likely to be many litigations in a financial remedy case who would have felt comfortable ignoring the clearest of steers from this most distinguished and pre-eminent of financial remedy judges.’

The judgment in James was unforeseen and unforeseeable at the time the order was made. It did invalidate the fundamental assumption on which the consent order can be made.

FPR 9.9A(5) permits the court when setting aside a financial order to make such other orders as may be appropriate to dispose of the application. An further hearing should however be ordered in which a judge had sufficient evidence to undertake discretionary exercise set out in James v Seymour.

Editor’s Note: There is a discussion of this case here: Financial Remedies Journal: James v Seymour – Now a Barder Event?