FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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G (formerly S) |
Applicant |
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- and - |
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S |
Respondent |
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Lucy Stone QC and Sarah Phipps (instructed by Alexiou Fisher Philipps) for the Respondent former husband
Hearing dates: 27th to 30th April, 6th May and 1st October 2009
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Crown Copyright ©
Mr Justice Singer:
The application to set aside
I would end with an emphatic word of warning. It is not
every failure of frank and full disclosure which would justify a
court in setting aside an order of the kind concerned in this
appeal. On the contrary, it will only be in cases when the
absence of full and frank disclosure has led to the court making,
either in contested proceedings or by consent, an order which is
substantially different from the order which it would have made if
such disclosure had taken place that a case for setting aside can
possibly be made good.
A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed.
The residual right to reopen litigation is clearly established by the decisions in Livesey v Jenkins and Barder v Caluori. But the number of cases that properly fall into either category is exceptionally small. The public interest in finality of litigation in this field must always be emphasised.
The September 2006 order
The essence of the September 2006 judgment
(3) As the years had passed since the separation, it had become less and less fair that the wife should be entitled to ask for a share in the potential of the husband's company. The wife could have instituted proceedings earlier, and the fact that the husband could also have done so did not improve the wife's position (see para [86]).
(4) It was a significant factor that if the company were to be sold, it would be by dint of the husband's considerable future endeavours over a number of years, unmatched by a contribution by the wife (see paras [88], [98], [100]).
(5) This was not a case for any traditional proportional division of the husband's income. It was not unfair for the husband to retain a significantly larger proportion of his income than was given to the wife: the husband was working without a domestic or other contribution from the wife; he had a lot of debt to sustain; and he was left with only the intangible and risk-laden capital tied up indefinitely in his company shares (see para [79]).
(6) In this case the value of the husband's shares was more akin to non-matrimonial property, as the growth in the company was not the financial fruit of the marriage partnership. However, the shares had been given weight in the balancing exercise by having regard both to the approximate value of the husband's separation-date holding of shares and to his contribution to the generation of wealth unmatched by the wife. Regard had also been paid to passive economic growth and to the underlying business conducted by the husband (see paras [111]-[113]).
An outline of subsequent events
(b) Meanwhile in October and November 2006 the company paid H £1.1M gross in respect of outstanding preference share dividends. After tax this would leave him with about £670,000.
(c) On 19th October 2006 H redeemed the £300,000 mortgage on the former matrimonial home, two months ahead of the ordained timetable.
(d) In mid-November 2006 H borrowed £700,000 from his brother.
(e) He then paid W the whole of the £1.1M lump sum, as to £900,000 of it 13 months ahead of schedule.
(f) Between December 2006 and May 2007 the company (partly in its own right and partly in joint venture with another company) achieved a number of very significant successes in securing contracts, in marked contrast to the lengthy prior history of failed bids referred to in the judgment.
(g) In January 2007 the venture capital company's preference shares and what was effectively its 4% stake in the company were bought in by the company for £4M and £2M respectively. The price for the 4% stake had been negotiated in August and September.
(h) On 14th February 2007 H became engaged to, and subsequently married, his present wife.
(i) On 27th February 2007 H met his brother who (on their evidence, for the first time) suggested that he should think seriously about disposing of the company.
(j) On 28th February 2007 H first discussed the disposal of the company with CB. Within a very few days they were instructed to act in the transaction, and on 25th July 2007 a conditional agreement was signed with the selected purchaser.
(k) On 20th September 2007 the transaction was concluded at a price representing an Enterprise Value of £180M, of which H received £137M gross in cash and loan notes.
(l) In December 2007 W (on her evidence) was first alerted to the sale of the company by an acquaintance, but did not credit what she was told nor make inquiries.
(m) On 20th February 2008 the solicitors then acting for W contacted her to tell her about the sale, and then wrote seeking information from H's solicitors.
(n) On 14th May 2008 W filed this application.
The conclusion of the September 2006 judgment in relation to the company and its valuation
... the case has always centred on what has proved to be the non-negotiable issue whether W should at some future date participate in what may be realised from H's shares…
but I concluded that an outcome which gave W a stake in the company, and in the risk and potentially the reward such stake might carry, would be unfair. I took that view for a number of reasons.
[3] … on any view of the matter their physical separation took place 10 years ago, and during the intervening period it is the fact (and in no sense a recrimination) that H has developed his business without any form of support or contribution from W. She however argues that as he has not until now had to deal with her capital claims he has in effect had the use of money or assets which should be regarded as hers, and thus that her contribution has continued.
...
[69] H's case is that T Ltd's business has no historical base in pre-separation YD [the predecessor company referred to more extensively in the full judgment] and that they are different animals. The genesis of T Ltd's public service business is clearly discernible in the closing years before the 1999 demerger, and to a smaller extent before the 1996 separation of the parties, and so I do not entirely accept his view. Since 1999 however the nature and scale of the business has evolved dramatically. Just one other illustration of that is that the average number of T Ltd's employees doubled from 1,467 in the 18-month period to June 2000 to 3,053 in the year ended June 2005.
...
[111] ... I regard the value which the T Ltd shares now represent as more akin to non-matrimonial property. But I have given the shares weight in the balancing exercise to what I regard as an appropriately constrained extent by having regard both to the approximate value of H's separation-date holding of YD shares, and to the fact that in my view what he has since built on the back of that asset has involved only incidental use of those shares and the business then conducted by that company which have been unmatched by any contribution on the part of W since the effective end of the marriage. I have also paid regard to what is described as the 'passive economic growth' which might have been added over the relevant 10 years to those shares and to the underlying business conducted by H by reference to two published measures of economic growth in prices and share valuations.
[112] I have not as such quarantined or excluded from analysis or distribution the increase in the value of the T Ltd shares, but have concluded in this case that no proportional future distribution would be fair. I have offset the impact of that growth by awarding W an overall sum which represents all the current 'hard' assets and more, and have left H (as he requests, although on more onerous terms than he suggested) with the risk.
[113] My award in my view fairly compensates W for the relatively small historical contribution made to T Ltd's present position by YD's business and H's 40% shareholding in that company. I find myself unable fairly to categorise the growth that has occurred as a financial fruit of the marriage partnership.
[85] I reject the proposition that in this case a fair solution can be devised by fixing, it would need to be arbitrarily, upon a proportion of the value which may one day be released from these shares. I find myself unable to find a formula which would fairly reflect the fact that H is prepared to cede to W their current tangible wealth, and to enhance her pension fund so as to achieve equality, while at the same time taking the whole of the risk which in my assessment is not slight. In the special circumstances which here exist it does not seem to me to be unfair that in return he should retain, if he can steer the company to a successful outcome, the whole of the reward which if it is great will be so largely as a result of his post-separation endeavours. W for her part does indeed wish to retain LM House and thus the bulk of the current tangible wealth which carries no appreciable risk.
[86] At any time after the separation if W had instituted divorce proceedings she would have been entitled to invite the court dealing with her ancillary relief claims to take into account the value and to some degree the potential of H's shareholding in YD and subsequently T Ltd. But as the years have passed since then it seems to me that it has become less and less fair that she should be entitled to ask for a share in that potential having regard to what she will receive in tangible assets. That H could himself have taken the initiative earlier but chose not to do so does not make such an entitlement any fairer.
...
[98] I have already referred to and will elaborate upon the distinguishing features which persuade me that any attempt at equal (or other proportional) division of the value inherent in the T Ltd shares would be unfair in this case: to identify but two, the transformation in the size and scope of the company's business and the bracket of likely value of the shares, and the length and potential duration of the period when H's contributions will have been unmatched.
[13] Another striking feature of the case is what I regard as [H's] continuing sense of regret that the marriage did not continue (a sentiment shared by W). This finds expression in his oft-repeated determination to ensure that LM House should be hers free of mortgage, and that she should have the means to continue living there. I repeat that to live there long-term has been her long-held expectation and remains her aspiration but these are aims which, if (as I would hope to do) I am to find a solution which achieves them, seriously limit the fair options available having regard to the quantum and structure of the parties' wealth and the balance between solid and realisable assets and those which are currently unrealisable and carry risk.
...
[36] Mr Cusworth [counsel then representing W] suggested that these first three elements (house, pension, £lm lump sum) would amount to … A perhaps more refined analysis is to point out that W would receive in the house and mortgage and the lump sum a capital award some £400,000 in excess of 100% of the current value attributable to the non-pension non-T Ltd assets, even treating the presently uncollectable arrears of dividends as though they were cash. In addition W's pension funds would be equalised with a share from H which can be regarded as very largely the product of his endeavours since 1999. Furthermore, subject to their net proceeds exceeding £2m, [Mr Cusworth] at the outset of the hearing argued that W should receive an unquantifiable but uncapped further tranche of capital on realisation of the T Ltd shares, if and when that takes place.
...
[74] ... it is difficult to sustain an argument to disprove the proposition that (subject always to H paying off the LM House mortgage and paying W £200,000) she would receive value equivalent to more than the totality of the assets available to the parties which can be described as copper-bottomed.
[75] In addition W will, via the agreed pension share provision, receive some considerable return on H's post-separation endeavours which in due course can secure for her additional capital (if she chooses) and an income for life.
...
[117] I have taken into account all the statutory factors contained in s 25(2) of the Matrimonial Causes Act 1973 as amended to the extent that they are referable to this case, and all other relevant circumstances as upon my evidential findings I perceive them to be. The provision for W which this order requires deals fully with her needs in terms of accommodation and her ability to maintain her lifestyle while living at LM House, and indeed for her lifetime. Having arrived at the determination that she should not share proportionately as and when it may materialise in the liquidity which may be released from the T Ltd shares, I consider that the overall provision H is to make for her goes beyond those needs (taking the Duxbury calculation simply as a guide to the size of the income-producing element) to the extent of £250,000 or thereabouts, and that this is a fair result bearing in mind the burden of debt the order will impose on him over a number of years. These arrangements strike a fair balance between the obligations and entitlements flowing from this marriage and its aftermath, and achieve the parties' shared objective of securing W in LM House. I believe that this is not only a fair outcome for W but one which should obviate and protect her from the risk that T Ltd will never be brought to market, which if her final proposal were adopted would leave her with a continuing mortgage liability of £300,000 to repay but without the resources to do so otherwise than by the sale of LM House. That is an outcome which she wishes so strongly to avoid.
[30] The comments in paragraph one of [an accountants' joint report dated July 2004] … record the accountants' agreement 'that there is insufficient liquidity in the company to assist in providing cash towards a clean break settlement of this matter', but that they were 'not aware of any bar to the husband transferring a proportion of his shares (equity or otherwise) to the wife, should the parties so agree or the court in its discretion so order'.
[31] Notwithstanding the clear common sense of those observations [which, in 2009 I interpolate, remained valid on the evidence in the spring of 2006] the valuation exercise has proceeded apace throwing up what have been, in effect, increasingly divergent figures, based upon extrapolations from information which for the most part relate to year-to-date figures for the current year, and what can only be a best guess at budgeted turnover and other results hoped for in the year to come. It is inevitable (particularly in a business where turnover may surge towards the year-end as local authorities strive not to under-spend the budgets grudgingly accorded them by central government) that forecasts however conscientiously prepared, will prove wrong. Indeed in the 2 years since accountants first offered valuation opinions upon H's shares in T Ltd this has proved to be the case.
...
[44] It is of large significance that neither party's outcome suggestion depends on a finding as to the shares' current value. Both parties' counsel acknowledge this. That did not, however, prevent vituperative contention between Mr Lobbenberg and Mr Nedas over many aspects of their respective approach to the exercise.
...
[46] Emphasising as I do that in the event any adjudication by me of this [share valuation] dispute does not affect the outcome of the case,
[21]... Although there was talk about the possibility of flotation in 2002 that soon evaporated. Neither accountant suggests that the company is ripe either for a trade sale or flotation in current circumstances, or in reasonably imminent circumstances which can be said to be more likely than not to eventuate. Whether such a time will ever come must be speculative. If it does then it will most likely have been achieved in large measure by dint of H's energy and acumen, not only past but prospective, as well as more favourable market forces than exist at present when (I am satisfied on the evidence) there is some stagnation in the company's development. There is no other avenue whereby H could release capital from his shareholding, neither does either accountant suggest how he might do so.
...
[51] ... neither accountant asserts that [disposal] is either imminent or likely to be achieved in the short to mid-term. It is agreed that prerequisites are a period of sustained growth and profitability. Anyone's predictions can prove right as well as wrong, but I do not believe that flotation for this company or (as seems less likely to H) a trade sale will by any means necessarily prove viable within any specified timescale.
[52] This is in part because I accept the burden of H's assertion that the company is currently languishing in doldrums, notwithstanding an anticipated return to not insubstantial profit for the year to June 2006. Debate ranged about the veracity of H's assertion that there had been a significant slowdown in the number and potential value of new contracts, exacerbated by the loss of some regarded as key to T Ltd's activities and turnover. His prediction is that in the year to June 2007 the company's results are likely to revert as a result of these factors to something nearer the less healthy 2005 year picture.
[53] I accept the broad thrust of H's explanations about this and that the company is at present fighting to survive. Moreover I recognise that the nature of the relationship between the company and the local authorities it serves is volatile in terms of profitability: as already pointed out budgets can be reduced and projects cancelled, yet T Ltd to be in a position to cater for the potential volume of work must keep its staff and equipment paid, purchased and maintained.
[54] I also accept that in this industry the bidding and contractual process is expensive, time-consuming and highly technical and long drawn-out in its processes. Significant expenditure of time and effort in all but a few instances lead nowhere. Over about the last 2 years only 3 out of 169 bids have proved successful. Even quite confident predictions (including public statements) do not guarantee that a deal is clinched. A number may not generate profits for a year or more because of significant start-up costs both in terms of taking on existing public-service staff and acquiring plant and equipment.
[55] Some commentators have recently taken a bullish view of the sector's prospects, but I do not consider H to be insincere in his much more cautious view of the state of and prospects for T Ltd. The scale of W's inquiry on these issues has been fuelled by a belief that H has been adept to down-play and indeed to misrepresent major aspects of the company's profile, past present and prospective. This led to Mr Cusworth's submission that aspects of H's evidence which he criticised should lead me to conclude that the picture of decline in T Ltd which H presented cannot have been genuine. Although Mr Cusworth and Mr Lobbenberg in terms accepted that there had indeed been a decline, I was invited to take the view that H's gloomy and risk-laden forecast concealed a degree of optimism, and that this in turn must mean that he had covered up some salient factors which, however, despite their best efforts, W's advisers had not managed to unearth.
[56] It cannot be controverted that T Ltd is going through a difficult patch. Its future fortunes are indeed highly speculative and emergence from this depression cannot be guaranteed. The company, H told me, is his life and he clearly has a sense of vocation about the contribution it can make to the efficiency and quality of the local authority functions it performs. He is very highly motivated. But he is not blind to the risks and future uncertainties.
...
[67] My conclusion is that H is essentially a conscientious individual and that (irrespective of what may be the present or prospective value of his shares) I can rely on the overall trend of his evidence and of the picture that he presents of T Ltd's position. I do not accept that it has become established that there is some nugget of concealed information which, if uncovered, would transform that picture.
The timing of the sale of the company
[21] ... Although there was talk about the possibility of flotation in 2002 that soon evaporated. Neither accountant suggests that the company is ripe either for a trade sale or flotation in current circumstances, or in reasonably imminent circumstances which can be said to be more likely than not to eventuate. Whether such a time will ever come must be speculative. If it does then it will most likely have been achieved in large measure by dint of H's energy and acumen, not only past but prospective, as well as more favourable market forces than exist at present when (I am satisfied on the evidence) there is some stagnation in the company's development. There is no other avenue whereby H could release capital from his shareholding, neither does either accountant suggest how he might do so.
...
[34] … In this case, as I shall explain, H's shares will only have a tangible value if and when their value can be extracted from them in the event of flotation or trade sale. That of course is true in every unquoted share valuation exercise. But in this case for either of those events to happen T Ltd will first have to have established a record of increasing size and profitability which sadly it now lacks. It will not then be a company of the same scale as it is now, and if this outcome is achievable at all then (as I have already indicated) it is likely to be in large part as a result of H's continuing endeavours stretching from now into the future and therefore from a point commencing a full 10 years since the parties' separation. In the particular circumstances of this case I regard that as a highly significant factor which cannot be sufficiently satisfactorily offset whether by limiting the proportion of the value payable in the future to W, nor by putting an arbitrary cap of £8m upon what she might receive as was Mr Cusworth's final proposition.
...
[51] Mr Cusworth submits that realisation of the shares is inevitable and points out that in 10 years H will be approaching normal retirement age at 63. But neither accountant asserts that such an event is either imminent or likely to be achieved in the short to mid-term. It is agreed that prerequisites are a period of sustained growth and profitability. Anyone's predictions can prove right as well as wrong, but I do not believe that flotation for this company or (as seems less likely to H) a trade sale will by any means necessarily prove viable within any specified timescale.
…
[56] It cannot be controverted that T Ltd is going through a difficult patch. Its future fortunes are indeed highly speculative and emergence from this depression cannot be guaranteed. The company, H told me, is his life and he clearly has a sense of vocation about the contribution it can make to the efficiency and quality of the local authority functions it performs. He is very highly motivated. But he is not blind to the risks and future uncertainties.
What the accountants, both of them, do seem to be agreed about is that no-one in their right minds would buy this company at the moment, there is no realistic prospect of turning it into cash, and there is no liquidity in it, and it is, frankly, not looking too good, and hopefully that is just temporary.
and:
... in any event, [it] is not as though it is going to be sold tomorrow, if it is going to be sold at all. It is a year or several years down the line. I mean, by definition it will look healthier, otherwise it will not happen.
The HSBC refinancing
i) 5th June 2006: What may have been the first meeting with CB concerning the refinancing project.
ii) 29th June 2006: CB in effect take on the project. Discussion as to whether it would be possible concurrently to achieve payment to H in respect of his preference shares.
iii) 13th July 2006: a meeting to discuss financial projections. (Although the suggested inference that H was at that meeting was uncontroverted during the hearing I have since been told that H was then in Cyprus, which would also explain why he was not present at court for the post-Miller submissions made on that same day. But I would expect him in any event to have been kept informed of any developments, and indeed to be contactable if need be.)
iv) 25th July 2006: A meeting was held with CB to discuss purchasing ICG's stake.
v) 3rd August 2006: H met representatives of ICG.
vi) 4th September 2006: Proposals had been received from five banks.
vii) 20th September 2006: H attended the court hearing. This was the date when credit approved proposals were expected from the two remaining suitor banks, but they were delayed.
viii) 25th September 2006: The suggestion is made that repayment of H's preference shares be delayed, with an option to draw down the necessary funds within 12 months.
ix) 3rd November 2006: Application is made for clearance from the Pension Regulator.
The opportunity for H to receive £4M for his preference shares
The accelerated payment to H of the arrears of preferential share dividends
[36] Mr Cusworth suggested that these first three elements (house, pension, £lm lump sum) would amount to … A perhaps more refined analysis is to point out that W would receive in the house and mortgage and the lump sum a capital award some £400,000 in excess of 100% of the current value attributable to the non-pension non-T Ltd assets, even treating the presently uncollectable arrears of dividends as though they were cash. In addition W's pension funds would be equalised with a share from H which can be regarded as very largely the product of his endeavours since 1999. Furthermore, subject to their net proceeds exceeding £2m, [Mr Cusworth] at the outset of the hearing argued that W should receive an unquantifiable but uncapped further tranche of capital on realisation of the T Ltd shares, if and when that takes place.
...
[72] Assuming for the purpose of this analysis that H paid off the £300,000 LM House mortgage now (rather than within 3 years as he has offered) and raised the £200,000 first instalment of lump sum which W seeks within a short period to deal with her own costs and other liabilities, I allow for the fact that H has to pay or borrow his own unpaid costs of £50,000 (likely now to be more), owes his brother £50,000 (which he says he is honour bound to repay while acknowledging that he will not be put under time-pressure to do so), and has a £14,000 deficit of liabilities over current assets. These items total £614,000. Taking the equity of his home at £400,000 (and thus disregarding for this purpose notional costs of sale and a liability of £70,000 suggested for latent capital gains tax), then his position would be that he would be in overall deficit to the tune of over £210,000. He would be left with his future income from T Ltd, and the deferred preference share dividends if and when paid, plus the future value if and when realisable of his T Ltd shareholding.
[73] I am not prepared to bring the preference share dividends into this calculation because there is at the end of the day no suggestion that H has deliberately held up their payment, nor any clarity as to when he may be allowed to draw them. If he were able to receive them now in the sum of £719,000 net (the higher figure which his advisers suggest as their net after tax product) he would still only have net assets of about £550,000 as contrasted with W's net capital of about £l.3m (represented by LM House free of mortgage and after paying off her debts and outstanding costs). I do not regard W as entitled to share in these dividends per se but treat them rather as unpaid income which H has earned as part of his overall remuneration from T Ltd, notwithstanding that they represent a return on capital and that when paid they can be used by him to meet capital requirements.
[74] I appreciate that other formulations could be adopted, but it is difficult to sustain an argument to disprove the proposition that (subject always to H paying off the LM House mortgage and paying W £200,000) she would receive value equivalent to more than the totality of the assets available to the parties which can be described as copper-bottomed.
In fact of course H was required to pay a lump sum of £1.1M rather than the £200,000 under consideration at this part of the judgment.
Inconsistencies in the presentation of the value of the company
[33] I said something about the difficulties which confront the parties and the judge in such a situation in my first instance decision in the case now revealed as Miller: M v M (Short Marriage: Clean Break) [2005] EWHC 528 (Fam), [2005] 2 FLR 533 at [59] to [61], from which I forbear to quote in this judgment. There the valuation differential was between £12m and £18m, a mere 50% of the lower figure, whereas here the £23.47m difference between £3.73m and £27.2m is 630% of the lower figure.
[34] It is true, as Mr Nedas who was one of the Miller accountants reminded me, that relatively shortly after that judgment they were proved wrong and I was in a sense proved right when the value of Mr Miller's shares became much more readily ascertainable in the market which put a tag of around £60m upon them. Thus the substratum for any assessment of my order against equality's yardstick would have been invalidated wherever within the accountants' parameters I had alighted.
The source from which H paid W's lump sum
The law
[42] The crux of the reasoning of Coleridge J for rejecting the assertion that his award to the wife had been vitiated by a substantial mistake is set out in the following paragraphs of his judgment under appeal:
'[55] The court proceeded on the basis that the probability was that a very significant sum would have to be paid to one, other or both agencies. This was the probable outcome. However the court was fully alive to the possibility that the payment would end up being very much larger or very much smaller. These were the possible outcomes. As far as I was concerned both possible outcomes were on the spectrum of outcomes, albeit at their outer edges, and the chances of either of them occurring was, in my judgment, the same. No one could say with any degree of confidence where the eventual outcome would fall on the spectrum and until the inquiry was concluded. The unlikely but not the impossible occurred.
…
[57] The court (and the parties) were, in the circumstances, especially anxious to ensure that the wife's position was as bomb-proof from later attack as possible hence the broadly drawn indemnity backed up by the indemnity fund (opposed by the husband). The whole risk arising from the liability was entirely to be assumed by the husband and the quid pro quo for that was that the husband might indeed do significantly better than the court predicted. Protecting the wife was my especial pre-occupation and concern.
…
[63] In this case the ball has bounced the wrong way for this wife … It might just as easily have bounced the wrong way for the husband in which event it would have had a catastrophic effect on his finances. She was completely secure, he was most insecure. That is precisely how I intended it to be.'
On analysis, therefore, there are three possible causes of a difference in the value of assets taken into account at the hearing, each coinciding with one of the three situations mentioned earlier:
(1) An asset which was taken into account and correctly valued at the date of the hearing changes value within a relatively short time owing to natural processes of price fluctuation. The court should not then manipulate the power to grant leave to appeal out of time to provide a disguised power of variation which Parliament has quite obviously and deliberately declined to enact.
(2) A wrong value was put upon that asset at the hearing, which had it been known about at the time would have led to a different order. Provided that it is not the fault of the person alleging the mistake, it is open to the court to give leave for the matter to be reopened. Although falling within the Barder principle it is more akin to the misrepresentation or non-disclosure cases than to Barder itself.
(3) Something unforeseen and unforeseeable had happened since the date of the hearing which has altered the value of the assets so dramatically as to bring about a substantial change in the balance of assets brought about by the order. Then, provided that the other three conditions are fulfilled, the Barder principle may apply. However, the circumstances in which this can happen are very few and far between. The case-law, taken as a whole, does not suggest that the natural processes of price fluctuation, whether in houses, shares or any other property, and however dramatic, fall within this principle.
In my judgment this case clearly falls within the first category. There was no misvaluation or mistake at the trial. Nothing has happened since then other than a natural albeit dramatic change in the value of the husband's shareholding. The wife's case amounts in effect to saying that it is all terribly unfair.
… There may be many who are contemplating an attempt to reopen an existing ancillary relief order on the grounds of subsequently encountered financial eclipse. All in that situation should ponder Hale J's analytical characterisation and ask themselves whether the events upon which they intend to rely can be brought within either the second or the third category. Even then they would be well advised to heed the warning that very few successful applications have been reported. I echo the words of Hale J that the natural processes of price fluctuation, whether in houses, shares, or any other property, and however dramatic, do not satisfy the Barder test.