Having previously written an Article on this website (May 2023) drawing attention to the little used Thwaite Jurisdiction and having alighted upon a very recent decision on appeal (March 2025) on the equally little used and somewhat similar Barrell Jurisdiction, it seemed apposite to draw attention to that too.
As set out in the previous article the Thwaite jurisdiction applies purely to orders that are still executory, meaning that they have yet to be carried out. That is not to say that the Order has not yet been agreed or determined and sealed but, that having been finalised and made, its terms remain to be put into effect.
That jurisdiction is available where, in respect of such an executory order, there has been a significant change of circumstances and as a result of that it would be inequitable not to vary order. Whereas the Barrell jurisdiction is limited solely to reversal or alteration of a Court’s decision where the Order has yet to be perfected and is therefore even more limited in application, although the hurdles may somewhat lower:
The recent appeal decision is that of Mr Justice Trowell in X v Y [2025] EWHC 727 (Fam) on appeal by the wife from the decision of HHJ Spinks not to alter his determination of the parties financial remedy applications on the wife’s Barrell application.
HHJ Spinks’ financial remedy judgment was given on 14 December 2023 and involved the husband receiving a greater than equal share of the matrimonial assets (about 62% or about £140,000 more than the wife from the sale of the family home) because the wife had a significantly higher income and greater mortgage capacity. On 3 January 2024 the husband’s father died. The Order had not been perfected and so the husband applied for an order to oblige perfection and the wife applied under the Barrell jurisdiction for the Court to vary its decision taking into account the effect of the husband inheriting from his father what she said was a potential interest of over £1m. HHJ Spinks declined to alter his decision and the wife appealed.
Trowell J granted permission to appeal but refused the appeal, largely adopting the Judgement of the first instance Judge which clearly sets out the applicable principles:
“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).””
In rejecting the wife’s application HHJ Spinks makes it clear that in the financial remedy decision he had taken into account the wife’s case that H was likely to receive an inheritance from his father then aged 90 and had dealt with the case on the basis that the husband was likely to receive family assistance and, that the new material in the Barrell application showed both, a letter from the father to the executors requiring them to exercise caution and have full control over the husband’s portion of his estate and, that whilst H would receive around £43,500, beyond that the picture was uncertain with anything else to be held in trust. The Judge referred to the need for finality, the delay and costs that would result from a redetermination with uncertain benefits and the inability of the Court to also factor in the wife’s likely future inheritance.
On appeal Trowell J, adopted the first instance Judge’s analysis of the law, as above, held that in his decision he had not stepped outside the bounds of judicial discretion and refused the appeal for the following reasons:
- The judge recorded that there had already been substantial cross examination on the subject of family support.
- The judge recorded that he had in the original decision already factored in support from his father being available to the husband.
- The judge had expressed horror as to the level of costs already expended in his original decision, a further enquiry would cost more.
- The judge worked for the purposes of the Barrell decision on the information from the probate lawyers, one of whom would be a trustee. In circumstances where there had been a trial already it was a matter for the judge whether he considered it appropriate to open up matters again for further enquiry, including (probably) the cross examination of that lawyer.”
And His Lordship added: “Given the manner in which HHJ Spinks has reasoned the exercise of his discretion in favouring finality over re-opening of the case in these circumstances, it is not for me to interfere with that exercise.”
This jurisdiction hardly opens any floodgates given its inherent limitation to unperfected orders but, it should certainly encourage vigilance in that brief window of opportunity, alongside the greater availability of the Thwaite jurisdiction.
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