Trowell J. Wife’s unsuccessful appeal against the rejection of her Barrell application to reopen a final order in a needs case following the husband’s father’s death. Trowell J agreed with the trial judge that the husband’s inheritance prospects were uncertain, and the principle of finality ought to be favoured over re-opening the case.

Background

HHJ Spinks made a final order in contested financial remedy proceedings on 14 December 2023, around a month after a three-day final hearing. The final order provided for, inter alia, an unequal division of the equity in the FMH in recognition of H’s lower income and therefore mortgage raising capacity; [4]. At the final hearing, W had argued that H was likely to receive a significant inheritance on his father’s death; [32].

On 3 January 2024, H’s father died – at this stage, the order had not been perfected. W put the value of H’s interest in his inheritance at c.£1.1m; [29].

On 26 February 2024, W made an application under the Barrell jurisdiction in light of the financial impact of the death of H’s father, alongside an open offer indicating that she would settle for an equal share of the equity in the FMH less the share of her bonus paid to H in accordance with the order (£70,000); [6].

HHJ Spinks rejected W’s Barrell application on the papers on 31 May 2024; [8]. The judge said that he could not endorse W’s open offer as H would be left needing to find c.£70,000 in the next year which, given his situation of real need and the uncertainty of his inheritance, was problematic; [36]. H had provided estate accounts, a will, a letter of wishes and pertinent emails from his father in advance of that decision; [10]. However, unbeknown to HHJ Spinks at the time that he made his determination, probate had been granted on 25 May 2024.

Arguments on appeal

W sought to appeal out of time on 16 August 2024 on the basis that she did not learn of the grant of probate until the end of June (after the deadline for appealing) and did not have lawyers acting for her; [11]. W argued that HHJ Spinks was too focused on the ‘finality principle’ at the expense of the r 1.1 overriding objective, i.e. dealing with the case ‘justly’; [22]. W’s case was that it is unfair in a needs case for the wife to take a lesser share in the proceeds of sale of the FMH where the husband has just received a substantial inheritance. She argued that the court could expect that H’s family would find a way for him to benefit from the inheritance, notwithstanding the way that the will was set up; [28].

H argued that the grant of probate was not material as the figures in the estate account he had provided to HHJ Spinks were all but identical to the figures in the grant of probate; [9]. He further argued that, in relation to the application for permission to appeal out of time, no weight should be attached to the fact that W was (by choice) a litigant in person; [24].

The law

Trowell J was taken to H (Children) [2015] EWCA Civ 583 in relation to permission to appeal out of time [14] and referred himself to Mostyn J’s decision in Augousti v Matharu [2023] EWHC 1900 (Fam) in relation to the need for caution when dealing with an appeal against an exercise of discretion; [17].

At [20], Trowell J repeated HHJ Spinks’ exposition of the principles applicable to W’s Barrell application, referring to In the matter of L and B [2013] UKSC 8, AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 and AR v ML [2019] EWFC 56. In sum, the court may reverse or alter its decision at any stage prior to an order being perfected. The test is not one of ‘exceptional’ circumstances; the issue should be approached through the prism of the overriding objective with the finality principle borne firmly in mind.

Determination

Permission to appeal out of time

Trowell J granted permission to W to appeal out of time, attaching no weight to the fact she was a litigant in person but noting that HHJ Spinks referenced the timing of probate in his decision which supported W’s case that she thought her discovery made a difference; [25]. The delay was not such as to outweigh the interests of the administration of justice and there was an explanation for the delay, r 4.6(1) considered; [26].

Permission to appeal

Trowell J granted W permission to appeal; that H would receive c.£1.1m by way of inheritance when under the final order he was to receive c.£140,000 more than W from the sale of the FMH provided sufficient reason to think there was a realistic prospect of success; [30].

The substantive appeal

Trowell J found that HHJ Spinks had given a ‘careful reasoned account of his decision-making process’; [32]. The judge found that the new material did not support a willingness of H’s family to step in and support him but instead showed relations between H and his family were ‘somewhat strained’, with an email from H’s father requiring the executors to ‘be very careful to have full control of [H’s] portion of my will’. HHJ Spinks made clear that he had dealt with the case at final hearing on the basis that it was more likely than not that H would receive family assistance in due course, given the scale of his indebtedness and need for housing; [34].

When considering the change in H’s financial circumstances flowing from his inheritance, the judge had found that H was not likely to receive anything at all in 2024, and would receive c.£43,500 from his father’s nil rate tax band (Trowell J found this to be a ‘reasonable estimate’, which would in any event have been consumed by H’s outstanding costs). Trowell J agreed with the judge that beyond this, the picture was uncertain. H’s inheritance was by way of a will trust, as to 25% with his siblings, and subject to a life interest in the assets by his stepmother. HHJ Spinks’ assessment that, as and when H did receive funds, they would be put in trust, was ‘reasonable’; [35].

HHJ Spinks set out that if he granted W’s Barrell application and embarked on redetermination, the case would incur additional costs, delay and court resources for uncertain benefit; [37]. Each side had made allegations of family wealth on the other side; how could he provide for a situation whereby W would inherit in due course? [38]. Trowell J found it was appropriate for the judge to also consider the welfare of the children, given the overriding objective was being applied; [39].

Trowell J concluded that HHJ Spinks was right to consider that this was not simply H inheriting £1m and still wanting a greater share of the matrimonial assets as if he did not have that £1m; this was a husband who hoped for assistance over time from his father’s money which was now held in trust. HHJ Spinks was not outside the bounds of judicial discretion in saying that, after judgment, enquiry into what the trustees and estate may or may not do would be inappropriate; [40]. There had already been substantial cross-examination on the question of family support and the judge had factored in support from H’s family within his original decision; [41]. Trowell J found HHJ Spinks had correctly reasoned the exercise of his discretion in favouring finality over re-opening the case in the circumstances, paying regard to the level of costs already incurred; [42].

In relation to W’s argument on appeal that the judge placed great weight on the belief that probate would take a significant period of time to be granted, Trowell J found the judge did think it would take longer than it did, but that was not a point upon which great weight was placed.

W argued that the judge did not expressly consider a partial reconsideration, but Trowell J found that was not a course open to the judge: either he holds his original decision, or he changes it; [43].

Decision

Trowell J therefore allowed the appeal to be brought out of time, allowed permission to bring the appeal and dismissed the appeal; [44].