Important Recent Case Developments (Mid-January 2025 to mid-May 2025)

These are the noteworthy case-law developments since the last issue went to press in January 2025.

Civil restraint orders

Civil restraint orders are addressed in FPR 4.8 and PD 4B. They can be limited, extended or general. A limited order may be made where a party has made at least two applications which are totally without merit. An extended civil restraint order (ECRO) may be made where a party ‘has persistently made applications which are totally without merit’. A general restraint order is for situations in which the party against whom the order is made ‘persists in making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate’.

The effect of each kind of order is to impose a requirement that the party against whom the order is made obtain leave to proceed with any future applications within the ambit of the order.

The difference between each relates to the ambit, with a limited order relating only to further applications in the current proceedings, an ECRO relating to ‘any matter involving or relating to or touching upon or leading to the proceedings in which the order is made’ and a general order applying to any application in any court.

The parties in Galbraith-Marten v De Renée (Extension of Extended Civil Restraint Order) [2025] EWFC 96 have been litigating since 2009, a record surely second only to that of Jarndyce v Jarndyce. The wife’s enthusiasm for the legal process has made her the subject of an ECRO, and this particular judgment extended that for a further 2 years in light of her most recent attempts to revisit the financial remedy order.

Under FPR PD 4B, para 3.10, the court may extend an ECRO for a further 2 years on each occasion ‘if it considers it appropriate to do so’. The judgment of Cobb J explains the ‘rationale for a different test for an extension of an ECRO (as opposed to a first grant) is that the person who has already been subject of an ECRO will (theoretically at least) have had limited if any opportunity to issue any application or claim ruled to be totally without merit’.

The order requires the wife to notify the husband of any intention to make an application. He would respond to that, and this response would be included in the wife’s application for leave. In this way, it is different to an order under s 91(14) Children Act 1989 which does not include notification of the potential respondent prior to leave being given so as to protect them from the emotional impact of vexatious applications.

Needham v Ellis [2024] EWCC 29 involved a limited civil restraint order made in TOLATA proceedings and accordingly falling within CPR PD 3C rather than FPR PD 4B. Needham required HHJ Tindal, in a first instance county court decision, to consider the applicable test to grant permission to apply where a civil restraint order was in place. He held that the test was as one of a ‘real rather than a fanciful prospect of success’ in the proposed application.

This makes the test lower than that for civil proceedings orders in relation to vexatious litigants under s 42 Senior Courts Act 1982. The latter are made where the Attorney General has satisfied the High Court that a person has ‘habitually and persistently and without any reasonable ground’ instituted civil proceedings. The test for those is whether or not the proposed application is an abuse of process whether there are reasonable grounds for the proceedings or application.

The Barrell jurisdiction

This refers to a judge’s ability to change their mind before their order has been perfected by sealing. This is a rare situation. In X v Y [2025] EWHC 727 (Fam) the wife unsuccessfully invoked the jurisdiction when she learned that the husband may inherit from his father, who had recently died. On the facts, the husband inherited under a trust with his siblings and subject to his stepmother’s life interest, rather than outright, and against a background of strained family relationships. Trowell J cites with approval the summary of the law given by HHJ Spinks at first instance, namely that exceptional circumstances are not required for the court to alter its decision, that if the application is made on the basis of new evidence there needs to be good reason to depart from the finality principle, that the finality principle is of considerable importance, and the issue should be approached through the prism of the overriding objective. Per AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16, the ‘question is whether the factors favouring re-opening of the order are, in combination, sufficient to overcome the deadweight of the finality principle … together with any other factors pointing towards leaving the original order in place’. That is not a neutral starting point but leans towards a refusal to reopen the issue.

D Culligan v A Culligan (Wells Sharing) [2025] EWFC 1 is a straightforward equal sharing case complicated by issues over valuations of business interests and a number of irrelevant ancillary issues. A significant proportion of the matrimonial assets were illiquid, being the husband’s shares in a company called Colendi, and as such also somewhat risky compared to the other assets which were predominately real estate. As MacDonald J notes, ‘Wells sharing allows for the possibility that the only way to achieve fairness in a given case might be to share, to whatever degree appropriate, an illiquid and risk laden asset, notwithstanding the disadvantages that may cause for the receiving party’.

MacDonald draws a distinction between those cases in which the shares cannot be valued and cases such as Culligan where a value can be placed on them. The issue here was not valuation, but ‘the size of the illiquid or risk laden asset relative to the “copper bottomed” matrimonial assets in the case’. Despite the cautious treatment of Wells sharing in Versteegh v Versteegh [2018] EWCA Civ 1050, it was the only way to achieve fairness in the present case.

DF v YB [2025] EWFC 46 (B) was another case of Wells sharing, and also a case in which sharing rather than needs dictated the outcome. The husband had made a sizeable loan to a third party, and his proposal was that the wife receive a contingent lump sum: if he was repaid, he would pay a lump sum to the wife, so the risk and benefits were borne by them both. While acknowledging that such an arrangement precludes a clean break, Recorder Nicholas Allen KC thought that Mostyn J had gone too far in WM v HM (Financial Remedies: Sharing Principle: Special Contribution) [2017] EWFC 25 when he said Wells sharing should be a last resort. It was about fairness, and it would be unfair to give the wife a lump sum in respect of an asset the husband may never recover.

Solomonic judgments and furry chattels

There have been two interesting chattels decisions in the last few months, FI v DO [2024] EWFC 384 (B) and RI v NG [2025] EWFC 9 (B) about (you’ve guessed it) a dog and a ring, respectively.

The ring in question was an engagement ring, and its status when the engagement had been called off. Section 17 Married Women’s Property Act 1882 – the law that gave married women the right to separate property on marriage – gives the court jurisdiction to determine ownership or possession as between those who were engaged. In English law, an engagement ring is presumed to be an absolute gift, but this presumption can be rebutted by evidence that it was conditional on the marriage taking place. District Judge Ashworth treated the presumption as being rebutted for two reasons, first that the respondent had broken off the engagement, and second that on the respondent’s case she had in fact returned it – an acceptance, therefore, that the ring should be returned when the engagement ended. The judge held that she had not in fact returned the ring and could either do so, or under s 7 Matrimonial Causes (Property and Maintenance) Act 1958, pay the value.

The dog in FI v DO was a golden retriever puppy, and the relevant law the Matrimonial Causes Act 1973. The fact that the law sees pets as chattels is contentious, and as District Judge Hatvany points out in a blog for the FRJ website, there are cases from other jurisdictions in which dogs have been treated as more akin to children. Following Moylan J’s approach in K v RK [2011] EWHC 3901 (Fam), Deputy District Judge Crisp looked not at who had paid for the dog, but who had principally cared for the dog and who the dog saw as his carer.

In each issue of FRJ, we nominate a judgment for the Mostyn Award – the must-read case of the last few months decided below High Court level. There are very few reported cases involving chattels on relationship breakdown, which meant a distinct lack of useful precedent; and while not precedent-setting, these judgments are useful to the ‘everyday’ practitioner. (The author of this column once achieved a clean break ‘save as for the dog’; it was holding up the resolution of everything else.) Dividing up the money, even millions, is much easier than deciding who gets the family dog. Accordingly, District Judge Ashworth and Deputy District Judge Crisp are our Mostyn Award winners of this issue.

This article draws on the case summaries prepared by the FRJ summariser team.