BT v CU: Another Covid-based Barder appeal fails

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I don’t propose to write at length about BT v CU, as I’m sure that others far more learned than I will do so. This will just be a very brief summary of a case that has already been described as a “Must read for FR practitioners.”

The essential question in the case was: is Covid capable of being a Barder event? This is not, of course, the first time that the courts have considered the question. Back in May I reported here on the case HW & WW, in which a husband failed with a claim that the pandemic was a Barder event.

The claimed Barder event in BT v CU was the effect of Covid on the husband’s business providing school meals, Covid having reached these shores just four months after a financial remedies order was made requiring him to pay the wife £950,000, in a series of yearly lump sums, ending in November 2023. The effect, whilst initially of course extremely serious, was largely temporary, with all schools reopening in September. The husband claimed that the turnover of his business will still be 10% down and its costs had increased, but Mostyn J, hearing the case, doubted this. 

To cut a long story short Mostyn J found that the husband had failed to clear the first hurdle of the Barder conditions. Whilst the pandemic may not have been foreseeable, “a reasonable person would have said in October 2019 that there was certainly a chance, which could not sensibly be ignored, that in the next year there would be an economic downturn which would have the effect of reducing turnover and increasing costs.”

Accordingly, the husband's application was dismissed.

Mostyn J went on to consider whether the husband had a further difficulty in getting within Barder, in that he may have had other possible remedies available to him: applying for the order to be varied or permanently stayed inasmuch as it was executory (as in Thwaite v Thwaite [1982] Fam 1), and applying for the order to be varied on the grounds that it is objectively a lump sum payable by instalments variable under s. 31(2)(d) Matrimonial Causes Act 1973.

But Mostyn J concluded that neither avenue was available to the husband. He doubted that the Thwaite relief was available, as it conflicted with the binding precedent of Barder, and as to variation, that could not alter quantum, only recalibrate the payment schedule.

There is also a postscript to the case, dealing with the topical issue of anonymity. The judgment was originally published including the names of the parties, granting anonymity only to the children. However, counsel for the husband sought to have that extended to the parents fearing, amongst other things, the effect of the judgment on the husband’s business. That carried no weight with Mostyn J, but he did grant anonymity, partly because naming the wife would inevitably be picked up at the children's school where she teaches, leading to a detrimental impact on the children's welfare. However, he made it clear that in future his default position will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity.

UPDATE: Mostyn J returned to that last point in his subsequent judgment, in A v M, where he said:

"There seems to have been a certain amount of surprise caused by my decision in BT v CU to abandon anonymisation of my future financial remedy judgments. Views have been expressed that I have snatched away an established right to anonymity in such judgments. This is not so. I do not believe that there is any such right. My personal research tells me that before the 1939 - 1945 War, and indeed until much more recently, there was no anonymity in the Probate Divorce and Admiralty Division (‘PDA’), children and nullity cases apart, and  even then only sometimes. For example, there is no example after 1858 of a first instance judgment in a variation of settlement case being published anonymously until as late as 2005  when N v N and F Trust [2005] EWHC 2908 (Fam), [2006] 1 FLR 856 was reported in that form. Even in nullity cases a general rule that they should be heard in camera was unlawful: Scott v Scott [1913] AC 417, HL. That case, far from being a paean to PDA exceptionality, is, in truth, precisely the contrary. It is a clear statement (to adopt modern metaphors) that the PDA was neither Alsatia nor a desert island: see Earl Loreburn at 447, where he succinctly stated:

“… the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception.”

"See also, to the same effect, Viscount Haldane LC at 434, 436; Earl of Halsbury at 443; Lord Atkinson at 462–463; and Lord Shaw of Dunfermline at 469, 475 and 478–480.

"It is therefore difficult to understand how the practice arose of routinely anonymising ancillary relief judgments given in the Family Division (the successor to the PDA) or in the Family Court proceeding at High Court judge level. So far as I can tell, it is traceable back to the provisions in the Matrimonial Causes Rules (`MCR') that made the Registrar the usual first instance judge - see for example rule 77(1) of the 1973 rules which stated that "on or after the filing of a notice in Form 11 or 13 an appointment shall be fixed for the hearing of the application by the Registrar." The Registrar always sat in chambers. Rule 78(2) allowed an application to be referred to a judge, and rule 82(2) provided that the hearing of a referred matter "shall, unless otherwise directed, take place in chambers." I believe that the earlier versions of the MCR said the same. It is to this banal provision that all the secrecy that has surrounded financial remedy judgments can probably be traced, although routine anonymisation of first instance judgments does not seem to have taken hold until the 1990s. So far as I can tell, the practice of anonymising judgments given by High Court judges is explicable only by reference to the hearing having been in chambers and behind closed doors. But that of itself would not explain the adoption of the practice as a chambers judgment is not secret and is publishable whether or not anonymised: see Clibbery v Allan and Another [2001] 2 FLR 819 at [24] – [33], [74], [117] – [118] and [150]. I have not been able to discover any statement of practice made at any time before Thorpe LJ's judgment in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 (at [45] and [79]) explaining, let alone justifying, the convention (whenever it arose) of routinely anonymising almost all ancillary relief judgments given by High Court judges. That convention is very hard, if not impossible, to square with the true message of Scott v Scott which is that the Family Courts are not a desert island."

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