Richardson v Richardson: Cases in which a Barder event can be successfully argued are extremely rare

In Richardson v Richardson [2011] EWCA Civ 79, decided today, the husband appealed against a final ancillary relief order on the basis of subsequent events.

The order was made on 25 September 2009, dividing the matrimonial assets as to 47.5% to the wife and 52.5% to the husband. The subsequent events were:

1. The death of the wife on 4 November 2009;

2. The discovery by the husband that his business insurance may not cover a substantial claim for damages; and

3. The avoidance of the policy by the husband's insurers, leaving his business liable for the claim.

The husband claimed that (1) constituted a Barder event and that (2) and (3) showed that the parties and the court entered into the order on the basis of mistake, or alternatively that they constituted a Barder event.

Giving the leading judgment, Lord Justice Munby found in respect of the three matters:

1. That the death of the wife was not a Barder event, as: "the wife, by her labours over many years, both as a wife and as the husband's active business partner, had earned her equal share in the matrimonial assets" - the amount awarded to her was not referable to her needs or to her future expectation of life (paragraph 20).

2. That the possibility of the insurance not covering the amount of the claim was something that the husband ought to have known, and therefore this part of his claim failed (paragraph 38).

3. That the husband was entitled to assume that he was covered by the policy, and that therefore: "the revelation in December 2009 that the insurer had avoided the policy is a vitiating event which in principle entitles him to relief" (paragraph 55). Lord Justice Munby agreed with Lord Justice Thorpe and Lord Justice Rimer (who gave concurring judgments) that the 'vitiating event' was a 'mistake' rather than a Barder event. Lord Justice Munby also entirely agreed with the "powerful observations" of Thorpe LJ (at paragraph 86):

"Cases in which a Barder event, as opposed to a vitiating factor, can be successfully argued are extremely rare, should be regarded by the specialist profession as exceedingly rare, and should not be thought to be extendable by ingenuity or the lowering of the judicially created bar."

Having found in favour of the husband on point (3), Lord Justice Munby then went on to grant him relief by dividing the potential liability equally between the parties