![FA-2024-000237 - [2025] EWHC 727 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
The Law
The Law
The ‘meat’ of this case is in the Barrell application, and in the application of the facts of this case to the law, rather than an exploration of the law, so I intend to take this section shortly.
In relation to permission to apply out of time I have been referred to H (Children) [2015] EWCA Civ 583 and rules 4.5 and 4.6 of the FPR 2010. I shall not repeat here the matters set out in rule 4.6, but I shall hold them in mind.
In relation to permission to appeal I have been referred to FPR rule 30.3 (7) (a), namely that the appeal must have ‘a real prospect of success’ if permission is to be granted.
In relation to the appeal itself I have been referred to FPR rule 30.12 (3) that the decision of the lower court is (a) wrong or (b) wrong because of a serious procedural or other irregularity.
Further, I note that Mr Justice Mostyn draws on Lord Kerr JSC (in paragraph 112 of Re B (a Child) [2013] UKSC) in Augousti v Matharu [2023] EWHC 1900 (Fam) to summarise the approach I must take to an appeal in relation to a discretionary exercise as follows:
An appeal against an exercise of discretion will succeed if the decision-maker has failed to take into account relevant matters, or has regard to irrelevant factors; or reached a decision that is plainly irrational. Otherwise, the review by an appellate court is ‘at its most benign’. Even if the appeal court disagrees with the discretionary decision it cannot interfere.
Similar cautions are given in other authorities. Given this is not in dispute I will not catalogue them here.
Further still, there is no question but that the decision I am considering here is an exercise of discretion, or, as it is referred to in AIC ltd v Federal Airports Authority of Nigeria an ‘evaluative exercise’, which is to the same effect so far as appeal criteria are concerned.
As to the principles to apply on the Barrell application they are set out in the decision of HHJ Spinks at paragraph 20. Neither party challenges his account of the law and having been referred by counsel to In the matter of L and B [2013] UKSC 8, and AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16, and AR v ML [2019] EWFC 56, I see no reason to criticise them. He sets them out as follows:
From these cases, I discern the following principles in particular:
There is no doubt that the court is able to reverse/alter its decision at any time prior to the order being perfected;
For the power to be exercised does not require ‘exceptional’ circumstances;
That where the request is made on the basis of new evidence that was not before the court first time round, there needs to be good reason (in which there is a “due diligence” requirement) to depart from the finality principle (AR -v- MR);
The ‘finality principle’ is of considerable importance in financial remedies cases (not least given the costs involved) and also, in particular, after a judgment given at a final hearing;
The issue should be approached from the perspective (or “through the prism”) of the Overriding Objective;
A judge considering such an application should not start “from anything like neutrality or evenly-balanced scales…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” (AIC Ltd).
Further, he does when turning to the facts of this case set out in its subparagraphs the overriding objective at paragraph 34. It cannot therefore be said that by merely naming the objective at (e) above he does not hold it in mind.
The central criticism of the judge’s approach that the wife brings is that he is too focussed on the ‘finality principle’ at the expense of rule 1.1 (1) of the overriding objective, dealing with the case ‘justly’.