The name originates from the House of Lords case of Barder v Calouri  2 W.L.R. 1350 in which the unexpected death of the wife and children of the marriage gave rise to an appeal.
In Barder, following a divorce settlement, a consent order was granted which provided that the husband would transfer his interest in the former matrimonial home to the wife. She was the primary carer for their children. Prior to this transfer and only five weeks after the consent order had been pronounced, the wife killed their children and committed suicide. She bequeathed her entire estate to her mother, who sought to enforce the consent order. The husband appealed the order, despite being outside of the time limit for such an appeal.
The case set out the four principles which must be satisfied for an application to succeed, these were as follows:-
- An event had occurred since the making of the order that invalidated the basis or fundamental assumption upon which the order was made so that an appeal would be certain or very likely to succeed;
- The new event should have occurred within a relatively short time of the order having been made.
- The application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case; and
- The grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith, interests in property which is the subject matter of the relevant order.
The court noted that the final order itself had been agreed upon a fundamental assumption that the wife and children would require a home for an indefinite period of time going forward. However, following their sudden and unexpected deaths, that assumption had been nullified. Accordingly, although the final order had been granted, the appeal to set aside was allowed. Therefore, it is not enough to show that one of the parties to the original order has died or that there has been a material change since the order was made, but rather that, the death or material change invalidates the entire basis for the order. This case illustrates the extent of such an event would need to be to invoke the "Barder Principle".
Following Barder, there have been many other appeals in the English courts which sought to rely on the conditions set out above. Apart from the unexpected death of a party, there have been various other situations which have been argued as Barder Events, such as remarriage, a significant change in the value of assets, or receipt of inheritance. However, very few of these have ultimately been successful, as the threshold to be met is extremely high where the event was unforeseen and unforeseeable to invalidate the basis of a final order.
So, would the court regard the pandemic and its consequences for the economy as a "new event" which could set aside a final financial remedy order?
If an order had been made pre-Covid (that being March 2020) and where the financial situation has drastically changed since as a consequence of the pandemic, would it be possible for the "Barder principle" to apply in these circumstances?
There are some parallel situations which can be considered. In cases where the stock market, or the property market has crashed, the court has held that this did not constitute a Barder event. The court considered the financial crisis such of 2008 to have been a natural process of the economic world where price fluctuations were foreseeable and to an extent inevitable, whether upwards or downwards.
However the repercussions of the pandemic are very different and there have been some reported cases which have sought to invoke the "Barder Principle" using the pandemic as the basis. In the case of LB v DB  the court was not convinced as to the medium to long term effects of the pandemic, as the case was heard in August 2020, and such did not set aside the final order. However, in the recent case of HW v WW  although the court dismissed the husband's claim to set aside a consent order reached at an Financial Dispute Resolution (FDR) hearing based on the pandemic, it did hold that the Covid-19 pandemic constituted "an extraordinary event" that is " different in nature and scale", and akin to a war. The court accepted that "in principle the Covid-19 pandemic can open the door to a successful Barder claim".
As the court deals with the backlog of cases and the full effects of Covid-19 on the global financial markets become clearer, a Barder application may well be successful. It may be argued that the horrendous consequences of this global health pandemic were not reasonably foreseeable and further that no preventative actions could have softened the drastic financial impact on many of our clients. However, until the courts grapple with more cases such as these, we need to be live to the potential remedies for our clients who have been adversely effected by this unprecedented global health emergency, whilst recognising at the same time that financial loss occasioned as a result of the pandemic will not necessarily reopen a final order as the English court will not be keen to open any floodgates to these types of claims.