The Court of Appeal has recently allowed an earlier court order by consent to be altered, while at the same time reaffirming that such variations should be rare.

Parties can try to appeal judgments, if errors have been made, but there are strict time limits for this. The court appreciates that there is a real benefit in litigants having certainty and therefore a final order should be just that: final. However, in a very limited type of case the court can overturn its own orders, even when the time limit for appealing has passed.

These are cases where the facts or assumptions on which an order was made change, undermining the whole order. Such changes take place when events occur shortly after making the order which invalidate a fundamental basis upon which the order was made.

In the case of Critchell v Critchell [2015] EWCA Civ 436, the parties only had limited resources and the immediate housing needs of the wife and children required that she retain the former matrimonial home. The husband needed to receive a lump sum in the future (secured as a charge on the wife’s home) as he faced various liabilities including a debt to his own father. Within a month of the consent order being made, however, the husband’s father died. The husband’s debt to his father was extinguished and he inherited sufficient funds to clear his other debts. This was sufficient, in the view of the Court of Appeal, to represent a fundamental change in the basis upon which the consent order had been made. The husband no longer had a need for the charge over the wife’s house. The court said that it was not so much that the value of the parties’ assets had gone up, but rather that there had been a real change in the needs for which provision had to be made.

Such circumstances remain rare, but the facts of this case were viewed as sufficient to justify a change.