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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Horne v Horne [2009] EWCA Civ 487 (12 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/487.html Cite as: [2009] EWCA Civ 487, [2009] 2 FLR 1031 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE CORRIE)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE SULLIVAN
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JANE CAROLINE HORNE |
Appellant |
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- and - |
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STEPHEN JOHN HORNE |
Respondent |
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THE RESPONDENT APPEARED IN PERSON.
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Lord Justice Thorpe:
"A lump sum of £180,000 by instalments as follows:
a) £100,000 on the date of completion of the sale of the former matrimonial home; and
b) £80,000 on 14 May 2008 or date of completion of the sale, whichever is later."
"However, both parties are absolutely adamant that they do not want that to happen. Mr Horne is taking what the wife's counsel calls the 'liquid risk-bearing assets' and Mrs Horne the 'liquid non-risk-bearing assets'. I am not really being given the opportunity to divide like with like. I do take on board that the company on the face of it is illiquid and certainly while it continues in that there is then an argument for treating it differently. On the other hand it is valued by its assets only and the main asset is that. There is therefore unlikely to be much risk in that valuation. This is not a valuation done on profit where it is subject to the profits going up or down. I hope that the company will continue, as I said, because it provides not only an income for Mr Horne but also their son. I have to accept that it may have to be sold. In these rather strange circumstances where the parties do want it dealt with in this way, I think that therefore it is treated as a liquid asset. In effect both parties agree that they should be treated equally and Mr Horne has to accept that it is a company not at the moment making a profit and valued on its assets only and therefore it could be sold. I therefore propose to divide the non-pension assets broadly equally after payment of the debts".
That rationalisation is of considerable significance when we come to weigh the merits of the present appeal.
"Presumably the company has been surviving on its reserve funds from the good years and there comes a time when that runs out. I think that time has probably been reached. The husband does, though, hope to be able to continue to turn this around and he is hoping to turn it into profit. He thinks that he can cut further back on truck racing although it has to be said that he has cut down on the cost of that this year as well."
That second citation from the judgment of the District Judge also bears strongly on the outcome of this appeal.
"My Lords, the result of the two lines of authority to which I have referred appears to me to be this. A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new event should have occurred within a relatively short time of the order being made. I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it would be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case."
That statement of principle was expanded and analysed in an influential judgment given by Hale J on 27 May 1994 in Cornick v Cornick [1994] 2 FLR 530. My citation comes at 536:
"On analysis, therefore, there are three possible causes of a difference in the value of assets taken into account at the hearing, each coinciding with one of the three situations mentioned earlier.
(1) An asset which was taken into account and correctly valued at the date of the hearing changes value within a relatively short time owing to natural processes of price fluctuation. The court should not then manipulate the power to grant leave to appeal out of time to provide a disguised power of variation which Parliament has quite obviously and deliberately declined to enact.
(2) A wrong value was put upon that asset at the hearing, which had it been known about at the time would have led to a different order. Provided that it is not the fault of the person alleging the mistake, it is open to the court to give leave for the matter to be reopened. Although falling within the Barder principle it is more akin to the misrepresentation or non-disclosure cases than to Barder itself.
(3) Something unforeseen and unforeseeable had happened since the date of the hearing which has altered the value of the assets so dramatically as to bring about a substantial change in the balance of assets brought about by. Then, provided that the other three conditions are fulfilled, the Barder principle may apply. However, the circumstances in which this can happen are very few and far between. The case-law, taken as a whole, does not suggest that the natural processes of price fluctuation, whether in houses, shares or any other property, and however dramatic, fall within this principle."
Lord Justice Sullivan:
"There seems to be a strong argument for some reduction in the lump sum. It may or may not prevail."
"cannot be said to be entirely satisfactory and may not on further examination turn out to be right."
That falls well short of the necessary conclusion that if he granted permission to appeal then the appeal would be certain or very likely to succeed.
Order: Appeal allowed