To set aside or not to set aside? David Burrows reviews Livock
The cris de coeur of Coleridge J in Livock v Livock [2011] EWHC (Fam) 3040 reminds us all of the need to distinguish clearly between the different forms of court application where fresh evidence is thought to have emerged or to have been overlooked by the first instance court. Such applications may take one or more of the following forms:
(i) for permission to appeal out of time in matrimonial financial order proceedings (per Barder v Barder (Caluori intervening) [1988] AC 20, [1987] 2 All ER 440);
(ii) to set aside an order where it is vitiated by subsequent events;
(iii) to vary a financial order (Matrimonial Causes Act 1973, s 31); or
(iv) an appeal with application to the appeal court to admit fresh evidence.
In Livock Coleridge J had made an order on 21 December 2009, intended mostly to provide the wife with £600,000 for her re-housing. He was aware that the husband was involved in a “long running dispute…with the Inland Revenue over
