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HW & WW (Covid 19 pandemic: set aside a financial remedy consent order?) [2021] EWFC B20

26th May 2021

Judgment: HHJ Kloss had to decide whether the Covid-19 pandemic and its impact upon the value of a key asset was a sufficient ground to set aside a financial remedy consent order. The husband had not paid the first lump sum of £750,000, and had at first applied to stay the lump sum provision for one year with a review in nine months, due to the impact of Covid-19 upon his ability to raise the lump sums. He had then applied to have it set aside entirely. HHJ Kloss set aside the stay application as having been superseded. He then dismissed the husband’s application to set aside the order. In principle, the pandemic was a potential Barder event, opening the door to set aside, but the risk of the event had been reasonably foreseeable to the husband when the agreement had been made in March 2020, and an overall assessment of the impact of the pandemic and more general factors led the court to exercise its discretion against the husband. The Barder threshold was deliberately set very high, and this change was not fundamental enough to meet it. Among other reasons, the company remained viable, and was projected to bounce back significantly. The husband had chosen for himself the path of greatest personal risk, which was projected to lead to the greatest personal reward. Although he would not have made the same deal had he known what lay ahead, sympathy and fairness did not form part of the test to be applied. The case would be listed for further applications and directions to be considered.