Case No. BV18D07667

by instalments of such amount as may be specified in the order and may require the payment of the instalments be secured to the satisfaction of the court.”81.This states that the order for the payment of the lump sum is made under “this section”. Literally, this means section 2 as a whole but it can only be a reference to the primary power in s. 2(1)(c). But the order may go on to specify, in subsidiary provisions pursuant to s. 2(2)(b), that payment of “that sum” shall be made by defined instalments and, further, that the instalments be secured. Thus, the subsidiary provisions will specify the rate and term of the instalments making up “that lump sum” which has been ordered under s. 2(1)(c).82.Section 9(1) and (2)(b) provided: “(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.(2) This section applies to the following orders, that is to say ….(b) any order made by virtue of section 2(2)(b) of this Act …”The variation power therefore does not apply to the order under s. 2(1)(c) which constitutes the lump sum. Rather, it is strictly confined to the subsidiary provisions under s. 2(2)(b) allowing for payment of “that sum” by instalments in the amounts and periodicity there specified. Thus, variation cannot alter the quantum of “that sum”.83.This interpretation is not only the natural meaning of the provisions but is, unsurprisingly, entirely consistent with the stated intention of the Law Commission set out above. It would be surprising, to put it mildly, if the Law Commission had drafted the Bill using language which achieved the exact opposite of what it so clearly intended. 84.The Matrimonial Proceedings and Property Act 1970 was later repealed, and its terms consolidated within the Matrimonial Causes Act 1973. The relevant provisions with which I am concerned were transposed without material alteration as follows:Plainly, the meaning of the original provisions did not alter on transposition. 85.Later developments have led me to conclude that the correct current position in relation to my hypothetical order in paras 76 and 77 above is that:i)the two lump sums of £5,000 and £4,000 could be set aside under FPR 9.9A provided that the five conditions in Barder were all satisfied, and it was proved that the new event was unforeseeable; alternatively ii)the date for payment of the first lump sum of £5,000 could be varied from 1 January to, say, 1 February under the inherent power of the court as explained in Masefield v Alexander; and/oriii)Under s. 31(1), (2)(d) and (7) of the Matrimonial Causes Act 1973 the scheduled payments of the instalments of the second lump sum of £4,000 could be varied to eight monthly payments of £500 commencing on, say, 1 March and ending on 1 October.86.On this analysis, there is not much difference between the variability of a lump sum payable by instalments and the variability of a series of lump sums. The timing of the payment of individual lump sums in a series can be altered under the inherent jurisdiction of the court as explained in Masefield v Alexander. However, the amount of the instalments cannot be altered. It is not possible later to vary the payment schedule to provide for the overall amount to be spread over a longer period in smaller instalments. In contrast, a lump sum payable by instalments can be varied in that way.87.There have been a number of cases which I respectfully suggest have misread the relevant provisions and have assumed that an order under s 31(1) and (2)(d) Matrimonial Causes Act 1973 could vary the overall quantum of a lump sum which is payable by instalments. The cases are:i)Tilley v Tilley (1980) 10 Fam Law 89, CAii)Penrose v Penrose [1994] 2 FLR 621, CAiii)R v R (Lump Sum Repayments) [2003] EWHC 3197(Fam), [2004] 1 FLR 928, FDiv)Westbury v Sampson [2001] EWCA Civ 407, [2002] 1 FLR 166, CA. v)L v L (unreported) 13 October 2006, FDvi)Hamilton v Hamilton [2013] EWCA Civ 13, CAvii)Myerson v Myerson (No 2) [2009] EWCA Civ 282, CAviii)FRB v DCA (No. 3) [2020] EWHC 3696 (Fam), FD88.This is a formidable catalogue but in none of those cases was the Law Commission’s report referred to, and in none, with the exception of Tilley, was a variation as to overall quantum actually ordered. So the statements are all obiter dicta. 89.Tilley is only reported in abridged form in Family Law journal. However, it appears that Donaldson LJ purported to extinguish the final instalment of £3,500 payable by the wife, on the ground that it should be treated as a quid pro quo for child maintenance that the husband ought to be paying, notwithstanding that the order stated that his liability for child support was nominal. The decision is extremely hard to understand from many angles. The Law Commission report was not referred to and the report does not reveal that any consideration was paid to the true construction of s.31(1) and 31(2)(d) of the 1973 Act. I do not consider that there is a clearly expressed ratio decidendi which binds me.90.In Westbury v Sampson, Bodey J stated that variation of overall quantum under s. 31 Matrimonial Causes Act 1973 would be extremely rare. He stated:“57. Nevertheless, given the constant emphasis in the authorities generally on the need to uphold the finality of orders intended to be final, including orders as to capital, it seems to me that very similar considerations ought in practice to be applied under s. 31 as those laid down in Barder, at any rate as regards varying the overall quantum of a lump sum order by instalments (as distinct from re-timing or 're-calibrating' the instalments).58. The re-opening under s. 31 of the overall quantum of lump sum orders by instalments, especially when made as part of a package intended to be final (and all the more so when ordered by consent following an agreement) should only be countenanced when the anticipated circumstances have changed very significantly, and/or for cogent reasons rendering it quite unjust or impracticable to hold the payer to the overall quantum of the order originally made.59. This formulation gives a little more latitude as regards s. 31 than do the Barder conditions for the grant of leave to appeal out of time; but that must I think follow from the statutory requirement under s.31(7) that the Court is to consider "all the circumstances".91.In Hamilton v Hamilton, however, Baron J did not adopt such stringency. At [43] she merely stated: “The Court is given the power to vary a lump sum [payable by instalments] and it stands to reason that that power must extend to quantum as well as timing.”And at [49] she recommended that: “Finally, in future, parties may consider that a recital at the beginning of an order which sets out the basis of the agreement in terms of a potential variation would put disputes of this type beyond doubt.”92.In the light of this recommendation, a practice has developed of framing what to all intents and purposes is a lump sum payable by instalments, as a non-variable series of lump sums. Thus, in this case District Judge Hudd stated in her judgment, at para 69:“My order will leave the husband with the full value of the company once the lump payments have been cleared in full. They must be cleared and I am quite clear that this is an order for a series of lump sums and it is not my intention that they should be susceptible to variation. It seems to me preferable for both parties that there is certainty.” Her order contained a recital that the parties agreed and declared that the lump sum orders should be considered to be a series of lump sum orders. The order itself at para 7 was headed “series of lump sum orders” and required the husband to pay the wife a series of lump sums.93.In Hamilton v Hamilton, the order in question provided that the wife was to pay to the husband “the following lump sums”, which were then set out. There were five lump sums payable over four years. Parker J held that, notwithstanding the way the liability was described, it was in reality an order for a lump sum payable by instalments. The wife sought a variation as to quantum; this was refused but some further time for payment was allowed. In the course of her judgment, Parker J held that:‘…in every case where there is to be a staged payment then this is in reality a lump sum by instalments and that it is not possible to protect the payee by drafting the order as a “series of lump sums”.’ 94.In the Court of Appeal, Baron J held that this went too far; Parker J was wrong to conclude that every order for the payment of a series of lump sums over time is an order for a lump sum by instalments. However, Baron J went on to hold:“41. … Where there is a disagreement as to whether the terms of the order are, in reality, correct then the Court retains jurisdiction and must assess what the parties agreed against the objective factual matrix of what occurred during the relevant period. Ordinarily the language of the order will settle matters but, in the event of a dispute as to the nature of the agreement, the Court is entitled to look at the surrounding facts and circumstances which bear upon the terms as drafted. This investigation is perfectly proper because it is evidence of the stages that preceded the perfection of the Court order. To be clear, the test is objective as the court is not looking to assess the subjective beliefs of the parties rather it is looking at the objective factual matrix to interpret what was agreed in the light of the words used and communications that passed. ”95.Baron J held that Parker J had been entitled on the facts of the individual case to hold that objectively the order in that case was a lump sum by instalments. The appeal was dismissed. The resolution of the appeal did not depend on Baron J’s view that the overall quantum of a lump sum payable by instalments is variable. That view is therefore an obiter dictum. 96.Factually, this case is indistinguishable from Hamilton. Objectively, and notwithstanding the camouflaging language, this was a lump sum payable by instalments. If the award is a pay-out under the sharing principle, but spread over time to soften the blow to the payer, then it will surely almost always be a lump sum by instalments, regardless of how it is dressed up. If, however, there are different payments on different dates for different purposes, as described by Sir George Baker P in Coleman, then that arrangement will be a series of lump sums. Mr Chandler submits that the law should look to effect and not semantics; and cites Lord Templeman’s famous aphorism in Street v Mountford [1985] AC 809 (albeit in a different context): “…The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.”I agree.97.In my judgment, notwithstanding that the order in this case is to be characterised as a lump sum payable by instalments, it is not variable as to overall quantum under s. 31 Matrimonial Causes Act 1973. The overall quantum can only be set aside or altered under the Barder doctrine. Under s. 31 all that can be achieved is recalibration of the payment schedule. 98.I do not conclude that this limited variation power affords the husband an alternative remedy for the purposes of the fifth Barder condition. Conclusion 99.The husband has failed to establish sufficient grounds to satisfy the first Barder condition. His application dated 27 April 2020 is therefore dismissed. Postscript: anonymity 100.My original intention when handing down this judgment was that anonymity should be granted to the children alone. This was to reflect the increased emphasis on, and move towards, transparency in financial remedy proceedings. The Consultation Document on Transparency in the FRC dated 28 October 2021 has pointed out that had journalists or bloggers attended the hearing before me they would have been entitled, subject to any reporting restriction order made by me, to have named the parties and to have published anything which had not been disclosed under compulsion. 101.However, Mr Chandler in admirably succinct and lucid supplemental submissions argues that anonymity should be extended to the adult parties and that the rubric to this judgment should therefore prohibit disclosure of the identities or residence of the parties or their children; the schools of the children; or the name of the applicant’s business.102.The application before me was not the wife’s application for financial remedies. It was the husband’s application to set aside parts of the final order made on the wife’s primary application. That is a significant difference. It cannot be said that any of the husband’s evidence in support of his application had been disclosed under compulsion. On the contrary, all of that evidence was volunteered by him. Therefore, I consider it most unlikely, had journalists or bloggers attended, that the husband would have succeeded in persuading me to grant an order preventing a report identifying the parties or any of the financial details about the business. The only possible ground would have been that the parties came to the hearing with a reasonable expectation that their anonymity would be preserved. I discuss this below.103.Mr Chandler argues that same principles of anonymity should apply equally to a primary application for financial remedy and to a set-aside application. I disagree, but will nonetheless address those principles. I accept that the current convention is that a judgment on a financial remedy application should be anonymised, although the decision whether to do so reposes in the discretion of the individual judge. Mr Chandler has cited the judgment of Thorpe LJ in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at [45] and [79] where anonymisation is described as the “general practice” justified by reference to respect for the parties’ private lives, the promotion of full and frank disclosure, and because the main information is provided under compulsion.104.The move to transparency has questioned the logic of this secrecy. Almost all civil litigation requires candid and truthful disclosure, given under compulsion. The recently extended CPR PD51U - Disclosure Pilot for the Business and Property Courts - contains intricate and detailed compulsory disclosure obligations. Para 3.1(5) requires parties “to act honestly in relation to the process of giving disclosure”. Many types of civil litigation involve intrusion into the parties’ private lives. Yet judgments in those cases are almost invariably given without anonymisation. 105.I no longer hold the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over the details of the case in the court’s judgment. In my opinion it is another example of the Family Court occupying a legal Alsatia (Richardson v Richardson [2011] EWCA Civ 79, [2011] 2 FLR 244, para 53, per Munby LJ) or a desert island “in which general legal concepts are suspended or mean something different” (Prest v Petrodel Resources Ltd and others [2013] UKSC 34, [2013] 2 AC 415, para 37, per Lord Sumption).106.The secrecy becomes even more difficult to defend when one considers appeal judgments. These are not anonymised, and this is so whether the appeal is from circuit Judge to High Court judge or from High Court judge to the Court of Appeal. Hence, the appeal judgment of Lieven J in Kicinski v Pardi [2021] EWHC 499 (Fam), which I have discussed above, was reported in full without anonymisation. 107.Almost all financial remedy judgments of the Court of Appeal are given in full without anonymisation. I note that the judgments of the Court of Appeal given as recently as 2 November 2021 in the case of Siddiqui v Siddiqui & Anor [2021] EWCA Civ 1572 conclude with the following statement:“Sir James Munby's judgment was anonymised when published and the parties have requested that this court's decision should also be anonymised when published. Having considered the parties' respective submissions, we have concluded that there is no sufficient justification for the judgments above to be anonymised.”108.This divergence in practice, depending on whether the application is proceeding at first instance or on appeal, is impossible to defend. It becomes yet more arbitrary and irrational when one considers that, where during the interlocutory journey of a first instance application, there has been an excursion to the Court of Appeal, the judgment at the final hearing will often be given without anonymisation: see as an example the recent decision of Peel J in Crowther v Crowther & Ors (Financial Remedies) [2021] EWFC 88, where everybody and everything were named.109.Mr Chandler has argued that anonymity of the adult parties and the children and of the name of the husband’s business should be granted in this case. He relies on the convention which I have set out above. In principle, this argument should be rejected. The convention does not apply to a set-aside application. In any event, where it does apply, it is time for it to be abandoned. 110.Mr Chandler argues that naming the husband will lead to identification of his business and that its financial details as set out above at [23] – [36] would be of great interest to commercial competitors. I reject that reason also. Mere assertions of this nature do not justify the imposition of secrecy. Hard evidence would be needed before that argument could be accepted. A judgment on a petition under s. 994 of the Companies Act 2006 would no doubt contain much information about the company of interest to its competitors. But I very much doubt that that would lead to redaction from the judgment of the name of the company or of the identities of its members. The same standard of openness should apply to a financial remedy judgment. The desert island syndrome should be avoided. 111.However, Mr Chandler argues that there are two good reasons why I should depart from my initial intention and grant anonymity to the adults. First, he argues that naming the wife will inevitably be picked up at the children’s school where she teaches, leading to a detrimental impact on the children’s welfare. Thus, he argues, my grant of anonymity to the children may well be ineffective. I accept that submission. 112.Second, he argues that the parties in this case came to the hearing before me with a reasonable expectation that the hearing would preserve their anonymity. Although I have held above that reliance on the convention of anonymisation of financial remedy judgments should now be abandoned, I accept that it would be unfair for me to spring this change of practice on these parties without forewarning. 113.However, it should be clearly understood that my default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations.114.I have therefore anonymised this judgment and have revised the terms of the rubric, to which careful attention should be paid.115.That is my judgment_________________________