Can judges change their minds after delivering judgement? Barrell applications

This issue is particularly relevant with the impact of Covid-19 on the property market, the massive dip in value of investments, bonus expectations and financial provision generally.

I had a recent case where the District Judge ordered a wife to receive a fixed sum from the proceeds of sale of the family home rather than a percentage. The outcome was based on needs and an agreed valuation of the property.

Within a week of receiving the judgement (two weeks after the hearing) but prior to delivery of the sealed order, it became apparent that the Coronavirus impact would affect the value of the property with the potential for the wife to recover more than she needed with the husband recovering less than the judge intended.

There were also serious doubts about the husband’s future bonus expectations and whether deferred stock would vest as a result of malus (bonus clawback, i.e. the risk of deferred awards being reduced or unpaid).

The latter would, of course, be addressed by an application for variation of maintenance. But what about the property order and what would be the likelihood of a judge reconsidering a decision before the order is perfected?

Such an application arises from the case of Re L & B (Children) [2013] UKSC 8.  This was a care case where there were unexplained injuries to a baby. In the first instance the judge decided that the father was responsible but changed her mind two months later and indicated that the responsibility could rest with either parent.  On appeal to the Court of Appeal, Lady Hale said the judge was permitted to change her mind. The following guidance was given:-

A. The power of a judge to reverse his decision was not limited to exceptional circumstances.

B. The overriding objective was to deal with the case justly.

C. Relevant factors include:-

i) Whether any party has acted upon the decision to his detriment (which militates against reconsideration or reversal);

ii) The existence of a mistake by the court;

iii) A failure to draw the court’s attention to a plainly relevant fact or point of law;

iv) The discovery of new facts after the judgement was given.

D. A carefully considered change of mind can be sufficient.

E. Each case is determined on its own facts.

Attempted use of the Barrell argument was discouraged by Mostyn J in AR v ML [2019] EWFC 56 when he made it clear that such applications would rarely be acceptable, indicating that such interventions would be as exceptional as Barder appeals.

In my own case, we did ask the judge to reconsider and to order a percentage split of the proceeds of the family home but she declined to change her order, viewing the future housing market as too unpredictable.

Whether the Coronavirus pandemic becomes a Barder event remains to be seen with the unprecedented involvement of the state injecting monetary stimulus and support to the economy and the IMF comparing the likely aftermath to the Great Depression.  Forecasting the impact of Coronavirus on financial cases is little more than a guessing game at this stage but some litigants will be bold enough to argue that the pandemic is a Barder event.

Kim Beatson is a partner and head of Family and dispute resolution at Anthony Gold and her contact details are kim.beatson@anthonygold.co.uk or telephone: 020 7940 4000.