Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur F. Lederle, Judge.
John Albany was convicted of failing to report to his local draft board for induction into the army and of failing to keep the board informed of a change of address, and he appeals.
Francis K. Young, of Detroit, Mich., for appellant.
Vincent Fordell, of Detroit, Mich. (John C. Lehr and Kenneth D. Wilkins, both of Detroit, Mich., and Fred E. Strine, of Washington, D.C., on the brief), for appellee.
Before HICKS and SIMONS, Circuit Judges, and FORD, District Judge.
The appellant complains of his conviction and sentence upon an indictment charging him with violating § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix § 311, by failing to report to his local Board for induction into the Army, and in a second count by failing to keep the Board informed of a change of address. His defense was that he is a full-blooded Mohawk Indian belonging to the Caughnawaga Tribe of Mohawk Indians which are a part of the Six Nations or Iroquois Confederacy, born on the Indian Reservation at Caughnawaga in the province of Quebec, Canada, and that he had registered under the Canadian Military Service Act of the Dominion of Canada and had there been exempted from service in the military forces of the Dominion under Canadian law.
The record clearly shows that the appellant registered for military service in the United States on February 16, 1942, with Local Draft Board #23, Detroit; that he was at the time of registration a resident of the United States, though not a citizen thereof and had not declared his intention to become a citizen. Section 3(a) of the Selective Service Act, 54 Stat. 885, 50 U.S.C.A. Appendix § 303(a), originally provided for the registration and service only of male citizens of the United States and male aliens who had declared their intention to become citizens. This section was amended, however, on December 20, 1941, 55 Stat. 845, 50 U.S.C.A. Appendix § 303(a), to include "every other male person residing in the United States." At the time of registration, Albany was clearly liable for service and induction into the Army unless exempted by his status as a full-blooded Canadian Indian.
The argument here presented in support of the appellant's alleged exemption, is similar to that rejected in Ex parte Green, 2 Cir., 123 F.2d 862, and is based upon the status of the Iroquois Confederacy as an independent nation having treaty arrangements with the government. It was in the Green case held that where domestic statutes conflict with an earlier treaty, the statutes must control. Head Money Cases, Edye v. Robertson, 112 U.S. 580, 5 S.Ct. 247, 28 L. Ed. 798. It is true that in Green's case he was made a citizen by the Citizenship Act of 1924, 43 Stat. 253, and by the Nationality Act of 1940, 54 Stat. 1137, 8 U.S.C.A. § 501 et seq., and so as a citizen came within the scope of the Selective Service Act, notwithstanding treaties with the Iroquois Confederacy, assuming that the terms of such treaties exempted him from obligation to serve in the military forces of the United States, though this the court did not decide. Albany is not a citizen but by a parity of reasoning he is subject to serve as an alien resident under the terms of the 1941 amendment, notwithstanding any treaty status, if such there be. We are of the view that the Green case was rightly decided, and follow it.
The Green decision was found applicable to a Canadian Indian, resident in the United States, by District Judge Knight, in the unreported case of United States v. Delos Earl Claus, D.C., 63 F. Supp. 433, decided July 31, 1944, in the Western District of New York. The reasoning there is likewise persuasive.


On appeal from the Department of Labor and Industry, Division of Workers' Compensation.
Before Judges MATTHEWS, PRESSLER and PETRELLA.
Kovacs, Horowitz Rader, attorneys for appellant ( Sanford Rader on the brief).
William K. Miller, attorney for respondent.
The opinion of the court was delivered by MATTHEWS, P.J.A.D.
On February 23, 1973 petitioner was involved in an automobile accident while making a delivery for his employer. Petitioner was taken to Rahway Hospital where Dr. Shutello, orthopedic surgeon on duty, treated him for a severe fracture of the right hip. Traction did not reduce the fracture and Dr. Shutello eventually operated to pin it. Petitioner was discharged from the hospital on March 17, 1973. He went to Dr. Shutello for a follow-up visit on March 26, 1973.
On March 29, 1973 petitioner filed a claim petition with the Division of Workers' Compensation.
Petitioner continued under Dr. Shutello's care. There were six additional office visits in 1973 and five in 1974. In 1974 Dr. Shutello performed two more operations, one to remove the pin and the other to remove a bony mass that developed in the fracture area. Dr. Shutello saw petitioner three times in 1975 and on the last of those visits, August 5, 1975, discharged petitioner, instructing him to return on an "as needed basis."
Respondent's insurer paid Dr. Shutello for services rendered to petitioner until May 1975.
On September 11, 1975 Dr. Shutello advised respondent that petitioner's prognosis was guarded. He received no authorization from either respondent or its insurer to provide further treatment, but he testified that he "assumed that it was a continuum service for the same problem."
Petitioner continued under Dr. Shutello's care; office visits were made on April 30 and May 15, 1976, x-rays were taken during the former visit.
On May 27, 1976 a hearing was conducted on petitioner's claim. Sometime prior to this hearing (the record does not reflect the date) petitioner recovered $100,000 from a third-party claim arising from the same accident.
The judge of compensation approved the following settlement: temporary disability for 135 3/7 weeks at $108 a week, totaling $14,626.29; permanent disability for 220 weeks at $40 a week, totaling $8,880; medical expenses, $6,382.20. Respondent's obligations totaled $29,808.49, but respondent had previously paid $22,328.48 in total satisfaction of the medical bills and the temporary disability award, and in partial satisfaction of the permanent disability award. $7,480 in permanent disability was unpaid. At $40 a week petitioner was entitled to receive permanent disability payments for 187 weeks, or 3.59 years.
Petitioner's third-party recovery, however, affected payment of the workers' compensation award. Because petitioner recovered $100,000, expending 20% of that amount in counsel fees, respondent's liability was limited to $5,961.70. See N.J.S.A. 34:15-40. Respondent was entitled to reimbursement in the amount of $16,366.79. Petitioner previously had reimbursed respondent in the amount of $14,578.99 and still owed $1,787.80. Apparently as part of the settlement, petitioner was not required to repay this amount. The judge of compensation explained: "You won't be getting anything here."
According to petitioner's application for modification, final payment of compensation under this award was made on July 4, 1976. There is no other evidence of a payment on this date and no explanation as to why respondent would make another payment.
On August 17, 1976 petitioner paid Dr. Shutello for office visits in April, May and June 1976.
Dr. Shutello continued to observe petitioner's condition. Petitioner complained that he experienced pain while walking. On February 24, 1977 Dr. Shutello discovered deterioration of petitioner's right femur and advised petitioner to undergo surgery for a total hip replacement. That operation was performed on October 12, 1977. The bills for this operation and subsequent office visits have been partially paid by Medicare; the remainder is unpaid.
Petitioner claims that he notified his attorney of this medical care, but he admits that he did not ask respondents to supply the treatments.
On November 24, 1978 petitioner filed an application for review and modification of the settlement award. Respondent answered on December 22, 1978 and petitioner filed a certificate of readiness on May 25, 1979. Hearings on this petition were held on April 24, 1980 and November 20, 1980. At the time of the hearings petitioner was still unemployed and claimed he was unable to resume his past occupation or to assume the new occupation for which he had been trained.
On January 23, 1981 the compensation judge dismissed petitioner's application for modification on the grounds that it was not filed within the jurisdictional time limits proscribed by N.J.S.A. 34:15-27. The judge concluded that the treatment rendered by Dr. Shutello after settlement did not constitute payment because petitioner failed to request respondent to supply such treatment. He concluded that final payment was made on July 4, 1976, more than two years prior to the filing of petitioner's application, which he found untimely.
An "order approving settlement [of a workers' compensation claim] may be reviewed within two years from the date when the injured person last received a payment. . . ." N.J.S.A. 34:15-27. It has been held that this time limitation is jurisdictional. O'Keefe v. Johansen Co., 117 N.J. Super. 364 , 366 (Cty.Ct. 1971), rev'd on other grounds 122 N.J. Super. 45 (App.Div. 1973). The Supreme Court has stated the basis of this "statutory limitation [is] freeing employers from all compensation obligations for specific injuries once two years have passed from the date of the accident or the last payment of compensation, whichever is later. [This limitation] is within the legislative province and as such must be accepted by the judiciary." Sa v. H.L. Harrison Son, Inc., 38 N.J. 203 , 208 (1962). The court has further noticed the administrative and practical difficulties attending indefinite and extended periods for modification of compensation awards. Id. at 208.
Neither deference to the Legislature nor the policies supporting a limited statute of limitations for modifications of awards supports a literal construction of the term "payment" in this case. Petitioner was awarded temporary and permanent disability according to a statutory schedule; he was not paid according to a statutory schedule because he recovered for the compensable injury in a third-party action. Pursuant to the approved settlement, petitioner actually reimbursed respondent for nearly 20% of respondent's exposure. In such a case identification of an actual date of when petitioner last received payment would be arbitrary: it might be the last date petitioner received payment before he reimbursed respondent, or it might be the date of settlement approval when petitioner was relieved of the duty to reimburse respondent for the full amount. Neither choice is clearly superior. Examination of the statutory policy on payment indicates that date of last payment in cases of third-party recovery should be the date when payments would expire if petitioner were compensated according to the schedule of benefits awarded.
Cf. Larson, Workmen's Compensation, § 81.20 at 15-478 (discussing reopening of compensation awards for changed conditions and noting that where lump sum payments are involved the date chosen is usually the date that periodic payments would have ended).
(b) If the sum recovered by the employee or his dependents from the third person or his insurance carrier is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, as hereinafter provided, for the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents less employee's expenses of suit and attorney's fee as hereinafter defined.
The section establishes the employer's right to reimbursement for compensation owing and paid pursuant to the statutory scheme.
Petitioner was entitled to an additional 187 weeks of compensation on May 27, 1976. This period of compensation did not expire until approximately 3 1/2 years after that date. If the date of last payment is calculated by determining the expiration date of the periodic payments, petitioner's application for modification filed on November 24, 1978 was well within the statute of limitations. N.J.S.A. 34:15-27.
"Under the axiomatic principle that the language of the workmen's compensation act must be liberally construed in favor of the claimant," Close v. Kordulak Bros., 44 N.J. 589 , 604 (1965), and in absence of legislative instruction or judicial precedent to the contrary, final payment in the case of third-party recoveries should be the date when the awarded periodic payments would end if they had been paid according to the preferred statutory scheme. This construction does not expand the time period for applications of review beyond the "usual" time and thus furthers the policy of the act without creating additional problems of proof.
An employee seeking workers' compensation in the form of medical benefits must first request the employer to supply such care; if there is no demand there is no liability. Benson v. Coca Cola Co., 120 N.J. Super. 60 , 64 (App.Div. 1972). Petitioner acknowledges that he neither requested nor received authorization for medical treatment rendered by Dr. Shutello after the issuance of the order approving settlement.
A demand for treatment is not necessary, however, where it would be futile. Id. There was evidence that Dr. Shutello informed respondent of petitioner's guarded prognosis prior to settlement, but there was no evidence of any reply by respondent. The compensation judge noted that it was unclear whether the doctor submitted bills to respondent or its insurer after May of 1975. In addition, petitioner did not establish that request for treatment would have been futile. His argument that the fact that the request would either have been granted or denied, or that petitioner would have merely been sent to another physician does not establish futility.
Petitioner's failure to request medical treatment does not bar his application for modification, for the date of final payment is to be computed with reference to the periodic payments awarded. On remand petitioner should be given an opportunity to develop the facts establishing futility, or to present evidence of a request if there was one. His failure to do so will result in a bar to recovery for the medical expenses in question, but will not bar recovery for increased disability. See Goldklang v. Metropolitan Life Ins. Co., 130 N.J. Super. 307 , 312 (App.Div. 197 4), aff'd o.b. 66 N.J. 7 (1974).


volunteer emergency responders employer tax credit.
emergency service personnel have decreased by more than 10%.
(i) Manpower response shortages to emergency calls.
sometimes required, emergency service training.
respond to an emergency call.
pay and no loss of time or efficiency rating.
7423. Prohibition on termination and discipline.
§ 7421. Scope of subchapter.
This subchapter relates to employment sanctions.
§ 7423. Prohibition on termination and discipline.
§ 7424. Prohibition on discrimination.
No.338), known as the Workers' Compensation Act.
charged to the regular pay of the employee.
and the time of the call.
§ 74A01. Scope of chapter.
granted by the employer to other similarly situated employees.
political subdivision or a private employer.
term includes the Commonwealth and its political subdivisions.
ambulance services or rescue squads or affiliated organizations.
defined in section 301(n.1) of the Tax Reform Code of 1971.
volunteer emergency responders employer tax credit).
require emergency medical treatment while in transit.
other voluntary emergency services within this Commonwealth.
and the environment from hazardous material releases.
Commonwealth which provides rescue service in this Commonwealth.
§ 74A03. Employment discrimination prohibited.
member of a volunteer emergency service organization.
volunteer satisfies the requirements of paragraph (2).
(P.L.736, No.338), known as the Workers' Compensation Act.
volunteer to his or her former position.
to recover lost wages and benefits.
74A11. Volunteer emergency responders employer tax credit.
74A12. Application for tax credit.
74A15. Shareholder, owner or member pass-through.
§ 74A11. Volunteer emergency responders employer tax credit.
emergency call prior to the start of work.
appropriate to the volunteer emergency services organization.
call and request that a leave of absence be granted.
a leave of absence be granted.
§ 74A12. Application for tax credit.
(1) The name and address of the taxpayer.
(i) Name and address of the employee-volunteer.
volunteer responders employer tax credit).
(3) Any other information required by the department.
§ 74A13. Review and approval.
the application of its determination.
certificates in any fiscal year.
to a single taxpayer in any fiscal year.
forward, carry back or obtain a refund of the unused tax credit.
§ 74A15. Shareholder, owner or member pass-through.
under this chapter for the same employee-volunteer.
Appropriations Committee of the Senate.
Finance Committee of the Senate.
Appropriations Committee of the House of Representatives.
Finance Committee of the House of Representatives.
74A21. Emergency response leave of absence.
§ 74A21. Emergency response leave of absence.
emergency and request that a leave of absence be granted.


text:
Mostyn J ruling that courts can interfere with arbitral awards in cases of fraud, mistake or supervening event, but finding that it should not do so in this instance.
This was a husband's application for a wife to show cause as to why an arbitral award should not be made an order of court. The wife contended (a) that the award was vitiated by mistake in relation to the true value of a property, and (b) in the alternative, that events had occurred since the making of the award that invalidated the finding of the arbiter about the value of the property. The court considered that it did have a discretion to refuse to incorporate an arbitral award in a court order or to set it aside and instead make a different order, if the facts were such that it would have the grounds to do so in relation to a court order (including, in this Division, mistake and supervening event). Its primary conclusion was that it should not do so because the terms of the arbitral award afforded the wife a 'safety net' for her needs to be met now and in the future. But, if that were wrong, the court secondarily reached the conclusion that the wife's two arguments failed on their merits and that the court should not therefore interfere with the arbitral award.
The court noted that under section 58(1) of the Arbitration Act 1996 parties can agree that an award may not be final and binding. These parties had signed an ARB1 arbitration agreement in which they agreed that the finality of an award would be subject to (inter alia) '(b) insofar as the subject matter of the award requires it to be embodied in a court order … any changes which the court making the order may require [...] [and] [w]e understand that the court has a discretion as to whether, and it what terms to make an order and we will take all reasonably necessary steps to see that such an order is made'. The court was of the view that the parties had therefore "specifically agreed that the court would retain an overriding discretion, and inferentially the parties agreed that they would each be enabled to argue that the court should not exercise its discretion to incorporate an award for reasons outwith the those [limited circumstances] stated in the 1996 Act". In doing so, the court suggested, the parties had simply recognised what the law already provided.
After considering the relevant authorities (S v S (Arbitral Award: Approval) (Practice Note)  1 WLR 2299, and the Practice Guidance (Family Court: Interface with Arbitration)  1 WLR 59) the court expressed the view that, "If following an arbitral award evidence emerges which would, if the award had been in an order of the court entitle the court to set aside its order on the grounds of mistake or supervening event, then the court is entitled to refuse to incorporate the arbitral award in its order and instead to make a different order reflecting the new evidence. Outside the heads of correction, challenge or appeal within the 1996 Act these are, in my judgment, the only realistically available grounds of resistance to an incorporating order. An assertion that the award was "wrong" or "unjust" will almost never get off the ground: in such a case the error must be so blatant and extreme that it leaps off the page."
In examining the detail of the arbitral award, the court noted that the arbitrator had provided for the wife to be entitled to make an application to extend her periodical payments, envisaging circumstances where a payment that the husband was to make to the wife in the future - a sale of shares whose value may fluctuate - might fall short of what was required to meet her needs. Mostyn J's view was that "the existence of [this] safety net inevitably leads me to refuse to interfere with the arbitrator's award, even if the threshold requirements for proof of mistake or supervening event are demonstrated", but that he would deal with the wife's primary case "as it may be that others disagree with [the court's] view."
i) The court may set aside an order on the ground that the true facts on which it based its disposition were not known by either the parties or the court at the time the order was made.
ii) The claimant must show that the true facts would have led the court to have made a materially different order from the one it in fact made.
iii) The absence of the true facts must not have been the fault of the claimant.
iv) The claimant must show, on the balance of probabilities, that he could not with due diligence have established the true facts at the time the order was made.
v) The application to set aside should be made reasonably promptly in the circumstances of the case.
vi) The claimant must show that he cannot obtain alternative mainstream relief which has the effect of broadly remedying the injustice caused by the absence of the true facts.
vii) The application if granted should not prejudice third parties who have, in good faith and for valuable consideration, acquired interests in property which is the subject matter of the relevant order.
On the facts, the mistake that the wife claimed - that the property in question would not be granted a license for its sale, contrary to the parties' expectation - was one that she could have averted by her own due diligence about the progress of the application for a licence. This claim therefore failed on the merits.
The court examined the issue of foreseeability to establish the merits of the wife's Barder case. It considered civil authorities on the subject (Wagon Mound (No. 2)  1 A.C. 617, C. Czarnikow Ltd. v. Koufos (The Heron II)  1 A.C. 350, Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd  QB 791) and key Family Division cases applying it to Barder applications (Smith v Smith  2 FLR 432, Reid v Reid  1 FLR 736, Critchell v Critchell  EWCA Civ 436, A v Executors of the Estate of HA & Ors  EWHC 2233 (Fam). The relevant test was whether an unforeseeable event had occurred after the making of the award which would invalidate the assumptions on which it had been made. In this case, the fact that the property would not be granted the relevant licence, though unwelcome, was "eminently foreseeable". And, even if it were not, the effect on the overall figures of the case (notwithstanding the 'safety net') was to reduce the wife's share of the assets from 45% to 40%, which was not of such a scale that it could be said to invalidate the arbitrator's award.
Finally, the court ruled that in future any notice to show cause why an arbitration award should not be made an order of the court must, for London and the South Eastern Circuit, be issued in the Royal Courts of Justice and immediately placed before Mostyn J for allocation to a High Court judge for speedy determination. Outside of the South Eastern Circuit, it must be immediately placed before the Family Division Liaison Judge who will arrange for it to be heard speedily by him or her or another High Court judge (including a section 9 judge). Obiter, the court clarified that a Barder application could be made to the original court that had made the order (noting that this question had been left open in CS v ACS  EWHC 1005 (Fam)).
1. In this judgment I shall refer to the applicant as "the husband" and to the respondent as "the wife".
2. This is my judgment on the husband's application dated 7 October 2015 that the wife do show cause why an arbitral award (as supplemented) made by Mr Gavin Smith dated 2 July 2015 should not be made an order of the court. The wife resists the application. She says that the award is vitiated by a mistake about the true value of the property in Portugal allocated to her. Alternatively, she says that events have occurred since the award which invalidate the finding made by the arbitrator as to the value of that property.
3. The arbitration procedure for family financial dispute resolution was launched by the Institute of Family Law Arbitrators in February 2012. A useful short guide (written by Gavin Smith and Sir Peter Singer) is to be found in Table 29 of At A Glance. It is described more fully by Sir Peter in "Arbitration in Family Financial Proceedings: the IFLA Scheme" Part 1  Fam Law 1353 and Part 2  Fam Law 1496. A recent article explaining its undoubted merits and advantages written by Duncan Brooks appears in Resolution's "The Review", Issue 180 at 32.
"We, the parties to this application, whose details are set out below, apply to the Institute of Family Law Arbitrators Ltd for the nomination and appointment of a sole arbitrator from the Family Arbitration Panel to resolve the dispute referred to in paragraph 2 below by arbitration in accordance with the Arbitration Act 1996 ('the Act') and the rules of the Family Law Arbitration Scheme ('the scheme')"
5. Before I examine the differences, if any, that apply, or should apply, to a family arbitration I shall set out shortly the scope for challenging a commercial award governed exclusively by the 1996 Act.
"…the general approach of the Court is one which strongly supports the arbitral process. By way of anecdote, it is perhaps interesting to recall what I was once told many years ago by Michael Kerr, a former judge in the Court of Appeal and one of the leading figures in the recent development of the law of arbitration in England, when I was complaining about an arbitration that I had just lost and the difficulties in the way of challenging the award. I told him that the award was wrong and unjust. He looked baffled and said: "Remember, when parties agree arbitration they buy the right to get the wrong answer". So, the mere fact that an award is "wrong" or even "unjust" does not, of itself, provide any basis for challenging the award or intervention by the Court. Any challenge or appeal must bring itself under one or more of the three heads which I have identified."
7. The grounds or heads of challenge are very circumscribed indeed. In addition to the three heads mentioned by Sir Bernard (to which I will turn below) there is the facility under section 57 to ask the arbitrator to correct his award. It is noteworthy that by virtue of section 57(1) the parties are free to agree on the powers of the tribunal to correct an award or make an additional award. As will be seen, in this case the parties agreed that certain matters could and should be corrected and clarified by the Tribunal. In the absence of agreement then by virtue of section 57(3) and (4) a party may apply to the arbitrator within 28 days of the award either (a) to correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award; or (b) to make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award.
"Whilst the decision in Craske v Norfolk CC  JPL 760 indicates that the power of the arbitrator under the slip rule contained in what is now s.57 of the 1996 Act (formerly s.17 of the Arbitration Act 1950) to correct errors in the award applies to errors which were attributable to the parties, as well as errors attributable to the tribunal, it also makes it clear that it does not extend to oversights or errors in production of evidence or argument before the Arbitrator – see White Book 2012, Vol. 2, Note 2E-226 at page 648. S.57 does not apply to second thoughts, still less to second thoughts based on fresh evidence."
9. An example of an arbitrator correcting an accidental slip or mistake is Union Marine Classification Services LLC v The Government of the Union of Comoros  EWHC 508 (Comm) where the arbitrator had, surprisingly, completely failed to deal with the Government of Comoros's counter-claim. The corrected award dealt with that and the challenge to such amended award was dismissed by Eder J. An application for leave to appeal against that decision was, I understand, recently dismissed by the Court of Appeal.
iii) an appeal to the Court on a "question of law" arising out of an award made in the proceedings under s69 of the 1996 Act.
By s70, an applicant must first have exhausted all available arbitral processes of appeal and review. Further, any application or appeal must be brought within 28 days of the award.
(i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.
I draw attention to (g) where, unsurprisingly, fraud is mentioned as a ground of serious irregularity entitling the court to set-aside an award.
(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.
This is a stringent test indeed.
13. What amounts to "a question of law" is, of course, capable of an expansive interpretation and might sweep up mixed questions of law and fact. However, in Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema)  AC 724 leave to appeal was granted on the ground that an issue of frustration was a question of law. The decision of Goff J on the substantive appeal reversing the decision of the arbitrator that the charterparty in that case had been frustrated was set aside by the Court of Appeal, a decision upheld in the House of Lords, Lord Diplock proclaiming that leave to appeal ought never to have been granted and that the tide had turned in favour of finality as against "meticulous legal accuracy". Therefore, according to Sir Bernard (at ) "the result is that the Court will not generally give leave to appeal or substitute its own decision for that of the tribunal on points which might be said to involve a question of law (e.g., whether on the particular facts a party had wrongfully repudiated or renounced a contract) unless the Court decides that the arbitral tribunal had or might have misdirected itself in point of law".
14. The traditional grounds for challenging a financial remedy award in family proceedings are mistake, fraud, non-disclosure and supervening event. Non-disclosure can be deliberate or innocent (see the recent decision of the Supreme Court in Sharland v Sharland  UKSC 60,  3 WLR 1070 at  – ). Deliberate non-disclosure is a species of fraud. Innocent non-disclosure is a species of mistake (see below). Therefore, in essence, there are but three grounds of challenge in family proceedings namely mistake, fraud and supervening event.
15. Fraud, of course, is a ground of challenge under section 68(2)(g), as has been seen. An alleged mistake can only be raised if it falls within section 57, and then will not extend to an error in production of evidence. The mistake alleged here would be impossible to raise in commercial arbitration proceedings. And a supervening event is completely impossible as a ground of challenge. In The Nema itself the arbitrator held that the award had been frustrated by the strike in Canada. He held that it would continue indefinitely. In fact it was settled a short time after the award but no-one suggested that that unexpected development could amount to a ground of appeal.
16. It can therefore be seen that when parties sign up to arbitration under the 1996 Act they "buy" very limited rights of challenge. These rights do not extend to a challenge based on a mistake in the production of evidence or as a result of a supervening event. Mr Chamberlayne QC sought to argue that the wife could seek to argue a point of law under section 69 namely that the award had been frustrated by the later events, but this is impossible because (a) whether frustration has happened is in fact an un-appealable question of fact – see The Nema, and (b) the issue of law must relate to the facts as found by the tribunal – see section 69(3)(c).
17. However, I do not conclude that the door to relief is closed to the wife. This is because of certain important differences between the family and civil processes.
18. Following a civil arbitration the award is final and binding, unless the parties otherwise agree – see section 58(1) of the 1996 Act. It will amount to res judicata between the parties. One imagines that in the vast generality of cases no incorporating order will be sought from the court; rather, the parties will be content for their rights and obligations to speak from the award.
"I would say that it is to be used in nearly all cases. Leave should be given to enforce the award as a judgment unless there is real ground for doubting the validity of the award."
20. In contrast it is to be expected that in most family arbitration cases the parties will want an incorporating order. For example, the arbitrator may have awarded a clean break – that can only be achieved conclusively with a court order. The arbitrator may have awarded a pension share – again, that can only be achieved by a court order. It is trite law that where such an order is sought the court exercises an independent inquisitorial discretion. It is no rubber stamp: see Jenkins v Livesey  AC 424.
5.5 If and so far as the subject matter of the award makes it necessary, we will apply to an appropriate court for an order in the same or similar terms as the award all the relevant part of the award. … We understand that the court has a discretion as to whether, and in what terms to make an order and we will take all reasonably necessary steps to see that such an order is made."
22. It can therefore be seen that the parties have agreed in writing that challenges to an arbitral award would not be confined only to those available under the 1996 Act. In addition they specifically agreed that the court would retain an overriding discretion, and inferentially the parties agreed that they would each be enabled to argue that the court should not exercise its discretion to incorporate the award for reasons outwith those stated in the 1996 Act. In so doing they were agreeing, pursuant to section 58(1), an exception to the award being final and binding. In making such an agreement the parties were of course, doing no more than recognising what the general law already provided.
23. I now need to refer to two important emanations from the President namely S v S (Arbitral Award: Approval) (Practice Note)  1 WLR 2299, and the Practice Guidance (Family Court: Interface with Arbitration)  1 WLR 59.
24. In S v S the President endorsed the "notice to show cause" procedure, commonly used where a party is seeking to resile from an agreement, as the appropriate procedure where a party is seeking to resile from an arbitral award: see , and the Practice Guidance at .
"Where the consent order which the judge is being asked to approve is founded on an arbitral award under the IFLA Scheme or something similar (and the judge will, of course, need to check that the order does indeed give effect to the arbitral award and is workable) the judge's role will be simple. The judge will not need to play the detective unless something leaps off the page to indicate that something has gone so seriously wrong in the arbitral process as fundamentally to vitiate the arbitral award. Although recognising that the judge is not a rubber stamp, the combination of (a) the fact that the parties have agreed to be bound by the arbitral award, (b) the fact of the arbitral award (which the judge will of course be able to study) and (c) the fact that the parties are putting the matter before the court by consent, means that it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order. With a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case."
"Where the attempt to resile is plainly lacking in merit the court may take the view that the appropriate remedy is to proceed without more ado summarily to make an order reflecting the award and, if needs be, providing for its enforcement. Even if there is a need for a somewhat more elaborate hearing, the court will be appropriately robust in defining the issues which are properly in dispute and confining the parties to a hearing which is short and focused. In most such cases the focus is likely to be on whether the party seeking to resile is able to make good one of the limited grounds of challenge or appeal permitted by the Arbitration Act 1996. If they can, then so be it. If on the other hand they cannot, then it may well be that the court will again feel able to proceed without more to make an order reflecting the award and, if needs be, providing for its enforcement."
"Attention is drawn to my observations in S v S (Arbitral Award: Approval) (Practice Note)  1 WLR 2299, para 21 about the attitude likely to be adopted by the court in such cases: '[where] the parties are putting the matter before the court by consent … it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order.'"
In Fage UK Ltd & Anor v Chobani UK Ltd & Anor  EWCA Civ 5, in the context of an appeal against a finding of fact, Lewison LJ stated at [114(ii)] "the trial is not a dress rehearsal. It is the first and last night of the show." Even more so, in my opinion, where the first instance decision is an arbitral award.
28. My conclusion is this. If following an arbitral award evidence emerges which would, if the award had been in an order of the court entitle the court to set aside its order on the grounds of mistake or supervening event, then the court is entitled to refuse to incorporate the arbitral award in its order and instead to make a different order reflecting the new evidence. Outside the heads of correction, challenge or appeal within the 1996 Act these are, in my judgment, the only realistically available grounds of resistance to an incorporating order. An assertion that the award was "wrong" or "unjust" will almost never get off the ground: in such a case the error must be so blatant and extreme that it leaps off the page.
29. In my opinion ARB1 should be modified to make this clear.
30. I now turn to consider the law relating to invalidating supervening events and mistake in financial remedy proceedings.
i) New events have occurred since the making of the order invalidating the basis, or fundamental assumption, upon which the order was made.
ii) The new events should have occurred within a relatively short time of the order having been made. It is extremely unlikely that could be as much as a year, and in most cases it will be no more than a few months.
iii) The application to set aside should be made reasonably promptly in the circumstances of the case.
iv) The application if granted should not prejudice third parties who have, in good faith and for valuable consideration, acquired interests in property which is the subject matter of the relevant order.
32. In Cornick v Cornick  2 FLR 530 at 537 Hale J explained that "for the Barder principle to apply, it is a sine qua non that the event was unforeseen and unforeseeable." Obviously, if the parties had actually foreseen a later event then it would not be unforeseeable. So, the question is usually confined to an analysis of (un)foreseeability. I agree with Hale J that the new or later event must have been unforeseeable. If relief were granted on the basis of the arrival of a foreseeable event then that would amount to exercising a disguised power of variation on proof of a mere change of circumstances, where Parliament has specifically declined to enact such a power.
33. In Richardson v Richardson  EWCA 79  2 FLR 244 Thorpe LJ emphasised that the jurisdiction is highly exceptional. At  he stated "cases in which a Barder event … can be successfully argued are extremely rare, should be regarded by the specialist profession as exceedingly rare, and should not be thought to be extendable by ingenuity or the lowering of the judicially created bar." Earlier in Walkden v Walkden  1 FLR 174 Elias LJ had stated at : "given the importance attached to finality in settlements of this nature, the circumstances must be truly exceptional before a capital settlement can be re-opened."
34. Even where the four conditions have been met it lies within the discretion of the court whether to grant the set-aside. A set-aside would be unlikely to be granted if alternative mainstream relief could be granted which broadly remedied the unfairness caused by the later event.
35. The test for Barder relief, as propounded by the House of Lords, is a question of law. Whether it is satisfied is a question of fact. A finding that a later event was, or was not, foreseeable is an inference drawn from primary facts. Hitherto, every case where Barder relief has been granted is an appellate decision. Lord Brandon's speech is cast in the language and procedure of an appeal. So it is important to remember that every decision made by the Court of Appeal in the field since that seminal decision is a fact-finding decision. Certainly, the legal test has been explained in the appellate decisions, but none has sought to alter it. But occasionally the fact-finding exercise seems to have been driven more by considerations of the underlying merits than a faithful application of the question of law. The old cases of Barber v Barber  1 FLR 476 and Heard v Heard  1 FLR 970 and the recent case of Critchell v Critchell  EWCA Civ 436 may be examples of this.
I find it difficult to apply those principles universally to all cases of contract or to all cases of tort: and to draw a distinction between what a man "contemplates" and what he "foresees." I soon begin to get out of my depth. I cannot swim in this sea of semantic exercises - to say nothing of the different degrees of probability - especially when the cause of action can be laid either in contract or in tort. I am swept under by the conflicting currents. … "
"It has never been held to be sufficient in contract that the loss was foreseeable as "a serious possibility" or "a real danger" or as being "on the cards." It is on the cards that one can win £100,000 or more for a stake of a few pence – several people have done that. And anyone who backs a hundred to one chance regards a win as a serious possibility – many people have won on such a chance. And the Wagon Mound (No. 2) could not have been decided as it was unless the extremely unlikely fire should have been foreseen by the ship's officer as a real danger. It appears to me that in the ordinary use of language there is a wide gulf between saying that some event is not unlikely or quite likely to happen and saying merely that it is a serious possibility, a real danger, or on the cards. Suppose one takes a well-shuffled pack of cards, it is quite likely or not unlikely that the top card will prove to be a diamond: the odds are only 3 to 1 against. But most people would not say that it is quite likely to be the nine of diamonds for the odds are then 51 to 1 against. On the other hand I think that most people would say that there is a serious possibility or a real danger of its being turned up first and of course it is on the cards."
38. Lord Reid is in effect saying here that in his opinion a probability of P = 0.25 would satisfy the test of reasonable foreseeability but a probability of P = 0.02 would not, although I acknowledge that he had earlier stated at 388 that "it is hardly ever possible in this matter to assess probabilities with any degree of mathematical accuracy." Thus, the test is now linguistically expressed as saying that a wrongdoer is responsible for damage which should have been foreseen by a reasonable person as being something of which there was a real risk, even though the risk would actually occur only in rare circumstances, unless the risk was so small that the reasonable person would feel justified in neglecting it or brushing it aside as far-fetched.
"(1) Reasonable people in the position of the officers of the Wagon Mound would regard the furnace oil as very difficult to ignite upon water. (2) Their personal experience would probably have been that this had very rarely happened. (3) If they had given attention to the risk of fire from the spillage, they would have regarded it as a possibility, but one which could become an actuality only in very exceptional circumstances. (4) They would have considered the chances of the required exceptional circumstances happening whilst the oil remained spread on the harbour waters as being remote. (5) I find that the occurrence of damage to the plaintiff's property as a result of the spillage was not reasonably foreseeable by those for whose acts the defendant would be responsible."
40. The Privy Council overturned finding No. 5. The risk may have been very small indeed but it was not such that a reasonable man would brush it aside as far-fetched. This points up just how unlikely a future event must be before it can be classed as "unforeseeable".
41. These civil cases are very important. In Richardson v Richardson at , Munby LJ stated that "the Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply." Similarly, in Prest v Petrodel Resources Ltd & Ors  UKSC 34  2 AC 415 Lord Sumption at  said that "Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different." In my opinion "unforeseeable" cannot mean one thing in the Queen's Bench Division and another in the Family Division.
42. And so I turn to some of the Barder cases and their treatment of the question of the (un)foreseeability of the later event. The first group of cases concern the death of an actor shortly after the order was made. Barder itself was just such a case. Shortly after the order the wife murdered the children and killed herself. Although the press reports a handful of such tragic cases each year the probability of such a thing happening must have been tiny. In terms of probability this was far more remote than drawing the nine of diamonds.
43. In Barber v Barber  1 FLR 476 the wife, aged 41, suffered from severe liver disease. The evidence was to the effect that there was a "reasonable hope" that she would live for at least five years. In fact, she died within three months. The report of the judgment of Glidewell LJ does not show that he considered the question of the (un)foreseeability of a death of that ill woman within 3 months rather than five years. A similar criticism can be made of the factual findings in Smith v Smith  2 FLR 432 where the husband aged 62 committed suicide shortly after the order. Nothing was said about the likelihood or otherwise of this later event, although inferentially the Court of Appeal appeared to accept that it came out of a clear blue sky. An even more surprising decision is Critchell v Critchell  EWCA Civ 436 where the later event was the death of the husband's father shortly after the order and the consequential inheritance by the husband of a sum of money of around £100,000. The report does not state the age of the father, but the inference is that he was elderly. The finding of the circuit judge was that the death of the father was "completely unforeseen"; that may have been so, but nothing was said about the requirement that it must have been unforeseeable. That crucial requirement is not mentioned in the judgment of Black LJ. It is very hard to see how this later event could have been found to be unforeseeable. Benjamin Franklin famously said that in this world nothing can be said to be certain, except death and taxes. The death of an elderly man surely cannot be regarded as anything other than foreseeable and unremarkable.
44. In contrast is the recent decision of Moor J in WA v Executors of the Estate of HA & Ors  EWHC 2233 (Fam). There the husband committed suicide 22 days after the order which secured for him a substantial award. Moor J very carefully considered the available evidence concerning the husband's psychological condition but reached the clear conclusion that the death was not foreseeable. It is true that he did not have the civil authorities put before him, and one can speculate whether he may have reached a different decision had they been, but what cannot be disputed is that the court made a thorough examination, on the available evidence, of the central question of whether the death was foreseeable or not.
45. In that case Moor J followed Reid v Reid  1 FLR 736 where the wife was aged 74 and had disclosed that she was registered blind, had high blood pressure, high cholesterol and was diabetic. She died two months after the date of the order. Wilson J found that her death was not foreseeable. At  he held that "notwithstanding the possibility of death at any time, there was no material which should have placed the wife's death 2 months later into the minds of the parties as being a significant, i.e. more than a theoretical, possibility." Again, I find myself in difficulty in squaring this decision with the civil authorities to which I have referred.
46. In contrast are a number of cases where a death was not found to be a Barder event. I need only cite Richardson v Richardson where the wife, then aged 70, died 3 months after the order. Munby LJ held that this was not a Barder event as the death did not invalidate the order. The wife had earned her share; her award was not based on needs. Although Munby LJ referred to the death as being "unexpected" he did not discuss whether it was technically "unforeseeable".
47. The next group of cases concern those where at the time of the order a thing is known and assumed but in fact later eventuates to an extent that was not expected. These are the "known unknown" cases, to use the celebrated language of Secretary Rumsfeld. Plainly it is very difficult to satisfy the test of unforeseeability in such a case.
48. In Walkden v Walkden the wife sought to plead as a Barder event the fact that certain shares had subsequently been sold by the husband at a substantially higher value than, she said, had been anticipated. At  Thorpe LJ held that "it could not possibly be said that the sale of the husband's shares was either unforeseen or unforeseeable". At  Elias LJ held that "it was plainly foreseeable that an asset of this nature might fluctuate dramatically."
"The reality is that the husband, to adopt Sir Stephen Brown's words, knew 'the essential facts' and by the exercise of due diligence could – would – have discovered the limit of the insurance cover. He has only himself to blame for the fact that he did not take these obvious steps. Faced with a known unknown he chose to proceed without further inquiry or investigation. He cannot now be heard to say that he was mistaken. There was no vitiating mistake he can rely upon. And just as in Walkden v Walkden, he cannot be heard to say that his discovery of the true position in relation to the limit of cover amounted to a new or Barder event. It quite plainly was not. In this case as in that the reasons which deny him relief under the one head serve equally to deny him relief under the other. But the reality is that this was simply not, and never could have been, a Barder event. The 'problem' – the limit of the indemnity under the policy – had been there all along. Its belated discovery by the husband was not a new event; it reflected no more than his failure at the proper time to ask obvious questions about the existing state of affairs. In this case, as in both Judge v Judge and Walkden v Walkden, the husband either succeeds in mistake or not at all. For the reasons I have given he has no claim based on mistake; and that is the end of it."
"(2) A wrong value was put upon that asset at the hearing, which had it been known about at the time would have led to a different order. Provided that it is not the fault of the person alleging the mistake, it is open to the court to give leave for the matter to be reopened. Although falling within the Barder principle it is more akin to the misrepresentation or non-disclosure cases than to Barder itself. "
"A judge's compilation of a balance sheet, usually necessary in order to enable him to address what is now the principle of equality, often requires him to confer a spurious specificity on the value of assets, or on the size of liabilities, in relation to which, on the evidence before him, he can reach no confident conclusion: his balance sheet demands figures so he inserts into it the figures which he considers to be the most probable or, more accurately, the least improbable. There is no evidence which enables us to override the judge's conclusion that he made no mistake in 2001 in that a liability of £600,000 fell within the spectrum of recognised outcomes. In his judgment in 2001 he expressly referred to the need to gaze into a crystal ball."
"The second category of case arises where the settlement is reached on the basis of a false evaluation. That may be as a result of a mistake, or some misrepresentation or non-disclosure, innocent or fraudulent. The parties (and/or the judge) reaches a view on the value of the asset in the course of agreeing or fixing an appropriate settlement, or confirming a settlement, which would have been different had the full facts been known at the material time. In this category of case it is contended that the order reflecting the settlement should be set aside because it was not correct when made. The applicable legal principles are very different to those in the Barder case. For misrepresentation they are the principles enunciated by the House of Lords in Jenkins v Livesey (Formerly Jenkins)  AC 424,  2 WLR 47,  FLR 813. This second category involves no supervening event at all. The settlement is reopened because it was not sound when made; had the judge been in possession of the material facts he would have made an order for a different settlement. In Cornick Hale J placed mistake cases (but not misrepresentation or non-disclosure) into the first category. However, as Wilson LJ pointed out in Judge v Judge  EWCA Civ 1458,  1 FLR 1287 para , it does not properly fit into that category. That is because it does not rely upon new or supervening events at all."
"80. Munby LJ explains, and I agree, why down to the delivery by His Honour Judge Raynor QC of his judgment on 25 September 2009 neither the husband nor the wife had actual or other relevant knowledge that there was a risk that the insurers might avoid the policy. That risk was, therefore, not something to which either could or should have disclosed to the court. What instead happened was that the trial proceeded down to judgment on the tacit assumption of both parties that the policy was an asset in the nature of an unflawed chose in action that would, if necessary, give the parties the benefit of an indemnity against any liability in the child's damages claim up to the limit of the cover.
81. In fact, the policy was not an unflawed chose in action, because at the time of the trial the insurers were already considering whether to avoid it. Had the parties known that, they would or should have disclosed it to the court and it is probable that His Honour Judge Raynor's order would have been adjusted (perhaps by the inclusion of some contingent provision) to cater for the risk that the policy would be successfully avoided.
82. In the event, and following His Honour Judge Raynor's order, the insurers have claimed to avoid the policy. That event has falsified the tacit assumption upon which the parties proceeded before His Honour Judge Raynor. In my view, it is analogous to the type of event that Hale J (as she then was) identified in Cornick v Cornick  2 FLR 530, at 536F, example (2), and which, in Judge v Judge  EWCA Civ 1458,  1 FLR 1287, at para , Wilson LJ explained would nowadays be regarded not as a Barder event but as 'vitiating mistake'."
54. As I see it, the crucial distinction between a mistake case and a true Barder case is that in the former the relevant facts will exist at the time of the order, but will be unknown; while in the latter, the relevant facts will arise after the order. One might think that in Richardson the relevant fact was the announcement on 18 December 2009, after the order, by the insurer that the policy would be avoided, so that the case was in true Barder territory. But, according to Rimer LJ (and somewhat to my surprise) the true relevant and unknown fact was that at the time of the judgment on 25 September 2009 the insurers were considering avoiding the policy even if they had not by then decided to do so, let alone announced a decision. That was an "unknown unknown".
55. Where a case of mistake, as opposed to supervening event, is being advanced the question of the ability of the claimant by exercising due diligence to have discovered the true facts is critically important. In this regard the burden will be on him to show that he could not have discovered the true state of affairs.
56. The recasting of Hale J's second category of case as a case of mistake rather than one falling within the Barder principles is relatively novel. I take it that the third and fourth Barder conditions will continue to apply. The first will not apply because there will not be any new event at all. The second is more problematic although I observe that in Judge no-one suggested that the five year passage of time of itself defeated the claim. Questions of foreseeability just do not arise.
58. This was a second marriage for each of the parties. Both parties have children by their first marriages; they are now adult. The parties were married on 24 July 1999. They have a daughter who was born on 26 January 2005. They separated in November 2013. Both parties and their daughter are based in Portugal. The wife commenced divorce proceedings on 31 October 2013. Decree Nisi was pronounced on 16 April 2014; it has not yet been made absolute. (I am asked to grant the husband permission to make the decree absolute.) The wife commenced her claim for financial remedies on 10 January 2014. The parties signed ARB1 on 16 January 2015. The financial remedy proceedings were stayed to allow the arbitration to proceed.
59. Gavin Smith heard evidence on 27, 28 and 29 April 2015. Final submissions were made on 15 May 2015. Mr Smith circulated his award in draft on 2 June 2015. He invited submissions as to corrections and clarifications. These were duly supplied and on 2 July 2015 he promulgated his award and a supplemental award. I shall refer to the two awards collectively as "the award".
60. The award was a thorough, conscientious and clear piece of work. Its quality is a testament to the merit of opting for arbitration. Mr Smith decided that the parties' property and cash should be shared equally. In order to achieve equality this required the husband to pay a lump sum of £158,142. This has been paid. Mr Smith decided that the pensions should be shared equally. This would require a court order. He decided that the husband's business (in which he was a 70% shareholder) should be shared 60:40 to reflect the fact that it was well established at the time that the parties commenced their relationship. The wife would receive her 40% share on the sale by the husband of his shareholding in the business. No end date was provided for that, so the wife might have to wait a long time before she received that further payment, and of course the actual amount could only be speculated about. Pending payment the wife was to receive periodical payments of £36,000 a year. Those would end when she received her payment from the business. The periodical payments were specifically made extendable, as the arbitrator could not foresee whether at the point of payment of her share of the business the wife could adjust without undue hardship to termination. Therefore, it was open to the wife to apply for an extension if she perceived that her payment from the business would not represent an adequate replacement for her loss of periodical payments. In fact, she has already applied for just such an extension.
The business valuation was, of course, the present value. The property and cash figures were after the payment of the lump sum. Within the wife's figure for property and cash was the value of her home in Portugal. The arbitrator referred to that property as QP, and I shall do likewise. The net figure for QP taken by the arbitrator was £375,797. The wife says that the correct figure at the time of the award was in fact £152,306, a fall of £223,491. Therefore there is a vitiating mistake. Alternatively, she says that by virtue of later events the value has fallen to £152,306, and this fall invalidates the basis of the award. Mr Chamberlayne QC says that the fall of £223,491 has "devastated" and "decimated" her financial position.
Thus, based on her new figures, the wife seeks an additional lump sum award of £111,746 (£298,121 - £186,375). It is worth reflecting, in the context of the overarching requirement of exceptionality, that the wife's ambition is to recover a further £111,746 out of a total pool of assets (on her new figures) of £2,381,360.
"…it belonged to me in my previous marriage and my first husband and the children have spent a great deal of time there. They are very attached to it, and it's my wish that they should inherit it. And it's also my first husband's wish. He agreed to the settlement, hoping that they would inherit it."
"I don't know what my future plans are, other than to return to the UK for [our daughter's] education. In that case, if there was funds to put (sic) just a small property here so she could be educated in England, I may let it, to help maintain it but I can't do that until I have the legalisation, the habitation certificate, and a tourism licence is now required."
"For the purpose of these proceedings [QP] has an agreed value of €660,000. This value assumes that the house will have the benefit of a 'habitation licence' which the wife has been in course of applying for some years. It is her case that without it the property cannot be sold. Costs of sale are agreed at 5%. There is an issue as to the CGT, if any, which should be set against the net equity, and as to the building and other costs which the wife will or should reasonably incur in obtaining the habitation licence. I deal with these issues below. Ignoring CGT, there is a net equity of £445,000."
Later in his award, and in the attached schedule of assets, Mr Smith dealt with the deductions and arrived at the net figure of £375,797.
"97. The wife's future is at present uncertain and it is thus difficult for her to quantify her housing need. She wishes to return to the UK with [the daughter] and to buy a home in Oxfordshire, and for [the daughter] to attend school there, probably at [school named]. That is a school which she and the husband had previously identified as one which [the daughter] might in the future attend. The wife has produced estate agents' details of 3 bedroomed houses costing in the bracket £500,000-£650,000. However, she is not in a position at the moment to relocate with [the daughter], as she requires either the permission of the husband, which is not currently forthcoming, or the permission of the Portuguese court. She has not yet issued her application and has been advised not to do so until next year. The husband's Portuguese lawyer has said that if an application were issued now it would not be heard until after June 2016.
98. I cannot predict or second-guess the order that may be made by the Portuguese court. I cannot assume that the wife will receive permission to relocate.
99. What is clear in my judgment is that her housing need are currently met at QP and would be if she remains in Portugal. If she is successful in obtaining leave to remove, she may well have to lower her sights in terms of accommodation in England and/or use some of the pension funds with which to rehouse herself.
100. She is very attached to QP and wishes to retain it if at all possible. However, it is not in my view realistic for the wife to envisage retaining QP while at the same time buying a property in England that would be suitable for her and [the daughter] if she obtained leave to remove, but that of course is a matter for her."
"On the sale of [the husband's] shares the wife should receive a lump sum equal to 40% of the proceeds after tax and the husband the balance and at that point there should be a clean break. I shall not order a s28(1A) direction. This will be to provide a safety net in case the wife's share is substantially less than the current value would suggest and does not meet her needs."
67. It follows that the safety net is available if the wife's capital is not sufficient to meet all her needs, whether for housing or income, at the point of the sale of the business. If the value of one element of her estate has fallen, whether it be the value of QP or her share in the business, then the safety net is there to ensure that her needs in the long-term are met.
68. In my judgment, the existence of the safety net inevitably leads me to refuse to interfere with the arbitrator's award, even if the threshold requirements for proof of mistake or supervening event are demonstrated. If the notional loss of £223,491 in the value of QP - which the wife is presently not in fact intending to sell, and which she wishes to leave to her children - in fact eventuates in hard money terms then the court will have the facility to bring into operation the safety net both in relation to quantum and duration of periodical payments. I have mentioned that the wife has already applied for an extension of the term of periodical payments. The husband has applied, in effect, for a capitalisation of the periodical payments in that following receipt of the draft award he has tendered to her the sum of £494,280, which is the present value taken by the arbitrator of the wife's 40% share in the business. In his supplemental award Mr Smith rightly refused to deal with the husband's de facto capitalisation application. This would have to be heard as a fresh application either by means of arbitration or in court. At all events, there are now pending cross-applications for variation of the wife's award of periodical payments. In those proceedings the wife's assertions as to the fall in value of QP will fall to be adjudicated. If those assertions are found proved then I imagine that the arbitrator or court will wish to reconsider whether the periodical payments should terminate on receipt by the wife of her share of the business when it is sold.
69. However, I will deal with the wife's primary case as it may be that others disagree with my view that the existence of the safety net inevitably means that the discretion to set aside the award should not be exercised.
70. I take the facts largely from Mr Chamberlayne's skeleton argument. These are not seriously disputed.
71. In 1992 the wife acquired QP, a Portuguese farmhouse sited on agricultural land. The original house was built prior to 1951 and does not require legalisation (planning consent). In the 1970s its previous owners constructed a separate annex (bedroom kitchenette and swimming pool) and in the late 1980s they extended the main house. Planning consent was not granted for either additional construction. The total area of building construction is now 401.65 m2.
72. In 2007 the parties jointly engaged the services of an architect, Jaime Coutinho, to secure the necessary planning consent to legalise the property and to obtain a habitation licence. A habitation licence is required in order to be able to sell the property to a third party. A notary will not sign a deed of transfer of title without there being such a licence in existence.
73. Two applications for planning have been submitted. The first application had been refused by the council on 4 October 2011 because "the main building and pool were in conditions to be legalised but not the annex, for the main reason that [it] was located at a distance less than 5m from the boundary" and "the annex is separated from the main building".
74. In 2012 or 2013 the parties acquired a strip of land from a neighbour to overcome the issue regarding the distance from the boundary. The second application for planning had been submitted by the architect on 27 November 2014 but had not been determined at the time of the arbitration. The wife had obtained quotations from two builders for the construction of a physical link – a "pergola" – between the main building and the annex. The amounts involved were relatively small – £11,000.
75. A SJE chartered surveyor, Ian Rostrum, was instructed to provide the market value of the property. He provided an initial valuation in his report dated 31 August 2014 and an updated valuation in a letter dated 2 April 2015 to take account of an increase in property prices. His evidence, which included his consideration about the issue of the likely legalisation of the property, was unchallenged.
"The local authority has so far raised two conditions that need to be addressed before they will consider approval. One was that the detached annex was within 5m of the original southern boundary and the other was that a physical connection by way of a pergola was needed between the detached annex and the main house. They are applying the conditions set out on the Plano Director Municipal (PDM) the master plan that deals with planning regulations.
A strip of land has already been purchased from the neighbouring property ensuring that the structure is five metres from the boundary and the construction of a pergola is simple and relatively inexpensive.
Arq. Jaime Coutinho has advised that he is convinced that when these two conditions have been met that no more conditions will be applied by the local authority. However he has qualified this advice by adding that no one can be 100% sure that it will be approved. As a result two valuation figures have been provided for this property."
77. The evidence, accepted by all, was that the habitation licence would in all likelihood be forthcoming, subject only to the construction of a structure deemed suitable by the council to connect the main house to the annex. The precise characteristics required by the council of the structure were all that was awaited according to emails from Mr Coutinho that formed part of the evidence at the hearing.
78. As stated above at  Mr Smith therefore attributed to the property the full value of €660,000 but deducted as a liability the building costs and fees that the wife would have to incur in obtaining the necessary planning consent. After deduction of other expenses this resulted in a net value to the wife of £375,797.
79. The award was promulgated on 2 July 2015. On 20 July 2015 the council determined the planning application by refusing it. The decision states that the permitted planning parameters for the built area are 300 m2 and that the existing and proposed built area exceeds this limitation (401.65 m2).
80. On 17 August 2015 the architect Mr Coutinho sent an email to the wife clarifying the decision. He stated that the main house together with the extension was already bigger than the permitted area (324.20 m2), let alone the annex. Mr Coutinho stated "this means that now even the main villa may not be totally approved due to excess of area". On 16 October 2015 Marta Lopes from Mr Coutinho's office advised that "the only way to continue the process to obtain a habitation licence is to reformulate the process and proceed with the demolition of the annex and the excess area of the villa to accommodate the PDM requirement."
81. In the light of these developments the wife obtained new expert evidence from Peter Densham MRICS. She has adduced his evidence in these proceedings without having obtained the court's permission under FPR 25.4(2) although no strong objection was raised by Mr Pointer QC to my being referred to it. Obviously the status of the evidence is no more than indicative. It cannot be taken to be conclusive in circumstances where the rules have not been complied with. Further, if fresh valuation evidence was to have been relied on in any definitive way then it ought to have derived from a single joint expert: see PD25D para 2.1, which provides that "wherever possible, expert evidence should be obtained from a single joint expert instructed by both or all the parties".
82. In his letter dated 23 October 2015 Mr Densham has valued the property without planning consent at €225,000 but states that "the probability of achieving a sale at all is doubtful". The value of the property with a habitation licence with it reconstructed and with reduced size will be €400,000, in his opinion.
83. The cost of reducing the property in size, digging up the pool and making good the works is set out in a table in the statement of the wife's case. This calculates the current net residual value as £152,306.
84. It is not accepted by the husband that any of these gloomy predictions will come to pass. He asserts that this issue has been "rumbling on" for nearly 10 years and that there is no firm or reliable evidence either way as to its eventual outcome.
85. I deal first with the contention that the decision of the council on 20 July 2015 was an unforeseeable later event which invalidated the decision of the arbitrator. I cannot agree that it was. The application was pending and although everyone was confident that it would be granted it must have been recognised that it might be refused. To my mind the decision, albeit unwelcome, was eminently foreseeable in the sense described by the House of Lords and the Privy Council in the cases to which I have referred. Even if the decision was unforeseeable I do not agree that it "invalidated" the arbitrator's decision in circumstances where the scale of the loss, assuming that Mr Densham's evidence is correct, would reduce the wife's overall share of the capital from 45% to 40%. A 40% overall award was well within Mr Smith's discretion and to my mind invalidation is only demonstrated where it can be shown that the consequence plainly falls outside the discretionary band. A claim for a further lump sum of £111,746 out of a total pool of assets of £2,381,359 does not come close to meeting the requirement of exceptionality.
86. The wife's case on mistake is stronger and has similarities to the case of Richardson. It would certainly seem to be undeniable that on 2 July 2015 the council were considering refusing the application, just as in Richardson on 25 September 2009 the insurers were considering avoiding the policy. However, I am not satisfied on the evidence that the wife with due diligence could not have discovered that the council might well adopt a much harder line about unauthorised building developments. I have been given no evidence of any efforts made by her to find out what the council were actually contemplating. There seems to have just been a blithe assumption that all would be well. The possibility of rejection was specifically referred to by her architect and it is surprising in those circumstances that she was content to allow the arbitrator to proceed to judgment without nailing down the point one way or another.
87. I therefore reject the wife's case on mistake.
88. But either way, the wife's claim fails because there is available to her alternative mainstream relief which can broadly remedy any injustice caused to her by a fall in value in QP, if that actually eventuates.
89. The husband's application is therefore granted and the order as drafted by Mr Smith will be made by me. I further allow the husband to make absolute the Decree Nisi so that the order can take immediate effect.
90. In this case the husband's notice to show cause was issued in the Central Family Court and came before Recorder Campbell on 27 October 2015. She transferred the matter to be heard by a High Court judge, but it has taken some time for this hearing to be listed. In the future any notice to show cause why an arbitration award should not be made an order of the court must, for London and the South Eastern Circuit, be issued in the Royal Courts of Justice and immediately placed before me for allocation to a High Court judge for speedy determination. If the application is issued outside London or the South Eastern Circuit then it must be immediately placed before the Family Division Liaison Judge who will arrange for it to be heard speedily by him or her or another High Court judge (including a section 9 judge). It is important for the promotion of the arbitration system that litigants should know that if a challenge to an arbitration award is raised that it will be heard by a High Court judge at the soonest opportunity.
91. Finally, I wish to deal with a procedural point which is in fact not material to this case and therefore what I say is strictly speaking obiter. In CS v ACS  EWHC 1005 (Fam) the President decided that an application to set aside an order on the basis of non-disclosure (or fraud or mistake) could, pursuant to FPR 4.1(6) and section 31F(6) Matrimonial and Family Proceedings Act 1984, be made to the original court and did not have to be made by way of appeal. He left open the question whether a Barder application could be made to the original court or whether it had to be by way of appeal. In my judgment, for the reasons set out in Financial Remedies Practice 2016 (Class Publishing) at paragraphs 4.12 to 4.20, a Barder application can be made to the original court.

matches: v. EWCA UKSC EWCA EWCA EWCA UKSC EWCA EWCA EWCA


the terms of the contract provide for a substantial termination liability on the part of the United States.
The Secretary of a military department may make a contract that is an agreement to lease or charter or an agreement to provide services and that is (or will be) accompanied by a contract for the actual lease, charter, or provision of services only as provided in subsection (b) if the contract for the actual lease, charter, or provision of services is (or will be) a contract described in paragraph (1).
that the Secretary has determined that the lease complies with all applicable laws, Office of Management and Budget circulars, and Department of Defense regulations.
For purposes of paragraph (1)(C), the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in a computation of such 30-day period.
Upon receipt of a notice under paragraph (1)(C), a committee identified in paragraph (1)(B) may request the Inspector General of the Department of Defense or the Comptroller General of the United States to conduct a review of the proposed contract to determine whether or not such contract meets the requirements of this section.
If a review is requested under paragraph (3), the Inspector General of the Department of Defense or the Comptroller General of the United States, as the case may be, shall submit to the Secretary and the congressional defense committees a report on such review before the expiration of the period specified in paragraph (1)(C).
a period of 30 days of continuous session of Congress has expired following the date on which the certification was received by such committees.
unless funds for that purpose have been specifically authorized by law.
to pay any attorneys’ fees in connection with such contract.
the initial term of which is for a period of less than five years but which contains an option to renew or extend the agreement for a period which, when added to the initial term (or any previous renewal or extension), is five years or longer.
Such term includes the extension or renewal of a lease or charter agreement if the term of the extension or renewal thereof is for a period of five years or longer or if the term of the lease or charter agreement being extended or renewed was for a period of five years or longer.
the initial term of which is for a period of less than three years but which contains an option to renew or extend the agreement for a period which, when added to the initial term (or any previous renewal or extension), is three years or longer.
Such term includes the extension or renewal of a lease or charter agreement if the term of the extension or renewal thereof is for a period of three years or longer or if the term of the lease or charter agreement being extended or renewed was for a period of three years or longer.
is more than one-half the price of the vessel, aircraft, or combat vehicle involved.
Whenever a request is submitted to Congress for the authorization of the long-term lease or charter of aircraft, naval vessels, or combat vehicles or for the authorization of a lease or charter of aircraft, naval vessels, or combat vehicles which provides for a substantial termination liability on the part of the United States, the Secretary of Defense shall submit with that request an analysis of the cost to the United States (including lost tax revenues) of any such lease or charter arrangement compared with the cost to the United States of direct procurement of the aircraft, naval vessels, or combat vehicles by the United States.
Any such analysis shall be reviewed and evaluated by the Director of the Office of Management and Budget and the Secretary of the Treasury within 30 days after the date on which the request and analysis are submitted to Congress. The Director and Secretary shall conduct such review and evaluation on the basis of the guidelines issued pursuant to subsection (f) and shall report to Congress in writing on the results of their review and evaluation at the earliest practicable date, but in no event more than 45 days after the date on which the request and analysis are submitted to the Congress.
shall reflect such portion in the appropriate procurement account in the request.
funds appropriated to the Department of Defense for operation and maintenance may not be obligated or expended for the lease or charter.
In this subsection, the terms “capital lease” and “lease-purchase” have the meanings given those terms in Appendix B to Office of Management and Budget Circular A–11, as in effect on January 6, 2006.
The Director of the Office of Management and Budget and the Secretary of the Treasury shall jointly issue guidelines for determining under what circumstances the Department of Defense may use lease or charter arrangements for aircraft, naval vessels, and combat vehicles rather than directly procuring such aircraft, vessels, and combat vehicles.
a period of 60 days has expired following the date on which notice was received by such committees.
The Internal Revenue Code of 1986, referred to in subsecs. (c)(2)(A) and (d)(1)(B), is classified generally to Title 26, Internal Revenue Code. Section 168 of the Internal Revenue Code of 1986 is classified to section 168 of Title 26.
2013—Subsecs. (b)(1)(B), (h)(1). Pub. L. 112–239, § 1076(f)(26), substituted “the congressional defense committees” for “the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives”.
Subsec. (h)(2). Pub. L. 112–239, § 821, substituted “60 days” for “30 days of continuous session of Congress”.
2009—Subsec. (f)(2). Pub. L. 111–84 substituted “January 6, 2006” for “the date of the enactment of the National Defense Authorization Act for Fiscal Year 2006”.
2008—Subsec. (b)(5). Pub. L. 110–181, § 824, added par. (5).
Subsec. (h). Pub. L. 110–181, § 1011, added subsec. (h).
2006—Pub. L. 109–163, § 815(d)(1), substituted “Requirement for authorization by law of certain contracts relating to vessels, aircraft, and combat vehicles” for “Requirement for authorization by law of certain contracts relating to vessels and aircraft” in section catchline.
Subsec. (a)(1). Pub. L. 109–163, § 815(a)(1), substituted “vessel, aircraft, or combat vehicle” for “vessel or aircraft” in two places in introductory provisions.
Subsec. (b)(1)(C). Pub. L. 109–163, § 815(a)(1), substituted “vessel, aircraft, or combat vehicle” for “vessel or aircraft”.
Subsec. (b)(1)(D). Pub. L. 109–163, § 815(b)(1), added subpar. (D).
Subsec. (b)(3), (4). Pub. L. 109–163, § 815(b)(2), added pars. (3) and (4).
Subsec. (c)(1). Pub. L. 109–163, § 815(a)(2), substituted “aircraft, naval vessel, or combat vehicle” for “aircraft or naval vessel” in subpars. (A) and (B).
Subsec. (d)(1)(A)(i), (2)(A), (B). Pub. L. 109–163, § 815(a)(1), substituted “vessel, aircraft, or combat vehicle” for “vessel or aircraft”.
Subsec. (e)(1), (3). Pub. L. 109–163, § 815(a)(3), substituted “aircraft, naval vessels, or combat vehicles” for “aircraft or naval vessels” wherever appearing.
Subsec. (f). Pub. L. 109–163, § 815(c)(2), added subsec. (f). Former subsec. (f) redesignated (g).
Pub. L. 109–163, § 815(a)(4), substituted “aircraft, naval vessels, and combat vehicles” for “aircraft and naval vessels” and “such aircraft, vessels, and combat vehicles” for “such aircraft and vessels”.
Subsec. (g). Pub. L. 109–163, § 815(c)(1), redesignated subsec. (f) as (g).
2000—Subsec. (b)(1)(B). Pub. L. 106–398 substituted “Committee on Appropriations of the House” for “Committees on Appropriations of the House”.
1999—Subsec. (b)(1)(B). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.
1996—Subsec. (b)(1)(B). Pub. L. 104–106, § 1502(a)(20)(A), substituted “the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on National Security and the Committees on Appropriations of the” for “the Committees on Armed Services and on Appropriations of the Senate and”.
Subsec. (b)(1)(C). Pub. L. 104–106, § 1502(a)(20)(B), substituted “those committees” for “the Committees on Armed Services and on Appropriations of the Senate and House of Representatives”.
Subsec. (c)(2). Pub. L. 104–106, § 1503(a)(21), struck out “pursuant to an authorization contained in the Department of Defense Authorization Act, 1984 (Public Law 98–94), or in any other law enacted after September 24, 1983,” before “may not be used”.
1993—Subsec. (c)(2)(A). Pub. L. 103–35 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
1987—Subsec. (d)(1)(B). Pub. L. 100–26 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
1984—Subsec. (c). Pub. L. 98–525, § 1232(a)(1), designated existing provisions as par. (1), redesignated as cls. (A) and (B) former cls. (1) and (2), respectively, and added par. (2).
require that riding gang members hold a merchant mariner’s document issued under chapter 73 of title 46, United States Code, or a transportation security card issued under section 70105 of such title.
is otherwise required by the Secretary of Defense to be aboard the vessel.
except as provided in subparagraph (B), the individual successfully passes a background check by the Secretary prior to going aboard the vessel.
The Secretary may waive the application of subparagraph (A)(ii) for an individual who holds a merchant mariner’s document issued under chapter 73 of title 46, United States Code, or a transportation security card issued under section 70105 of such title.
The Secretary of the Navy may enter into a long-term lease or charter for any double-hull tanker or oceanographic vessel constructed in a United States shipyard after the date of the enactment of this Act [Nov. 30, 1993] using assistance provided under the National Shipbuilding Initiative.
A statement that the obligation of the United States to make payments under the contract in any fiscal year is subject to appropriations being provided specifically for that fiscal year and specifically for that lease or charter or that kind of vessel lease or charter.
A commitment to obligate the necessary amount for each fiscal year covered by the contract when and to the extent that funds are appropriated for that lease or charter, or that kind of lease or charter, for that fiscal year.
A statement that such a commitment given under paragraph (2) does not constitute an obligation of the United States.
A long-term lease or charter authorized by subsection (a) may be entered into without regard to the provisions of section 2401 or 2401a of title 10, United States Code.
Pub. L. 101–165, title IX, § 9081, Nov. 21, 1989, 103 Stat. 1147, directed that no funds available to Department of Defense could be used to enter into any contract with term of eighteen months or more or to extend or renew any contract for term of eighteen months or more, for any vessel, aircraft, or vehicle, through lease, charter, or similar agreement without previously having been submitted to Committees on Appropriations, with further requirement with respect to contractual agreements which imposed certain termination liability on Government, prior to repeal by Pub. L. 103–355, title III, § 3065(b), Oct. 13, 1994, 108 Stat. 3337. See section 2401a of this title.
Pub. L. 98–525, title XII, § 1232(a)(2), Oct. 19, 1984, 98 Stat. 2600, provided in part that guidelines required to be issued under subsec. (f) of this section shall be issued not later than Oct. 31, 1984.


In a unanimous decision and opinion delivered by Justice Sotomayor on January 22, 2018, in National Association of Manufacturers v. U.S. Department of Defense, the United States Supreme Court (“SCOTUS”) held that challenges to the June 29, 2015 regulation defining the term “waters of the United States” (“WOTUS”) must be filed in the federal district courts. The Court reasoned that the plain text of the judicial review provisions set forth in 33 U.S.C. §1369(b)(1) of the Clean Water Act does not authorize direct challenges to this regulation (the 2015 WOTUS Rule) in the U.S. Circuit Court of Appeals and, therefore, such challenges must be filed in the federal district courts.
Some parties did file appeals to the 2015 WOTUS Rule in various U.S. District Courts, while other parties sought to expedite review of the 2015 definition by filing appeals in various Circuit Courts. The appeals to the Circuit Courts were consolidated in the Sixth Circuit, which issued a nationwide stay of the effectiveness of the WOTUS Rule, but it is likely that this stay will be dissolved because SCOTUS has held that the Sixth Circuit lacked jurisdiction to hear the appeal. Thus, it appears that this 2018 SCOTUS decision will further delay any final development of a valid definition of WOTUS.
The U.S. District Court in North Dakota did stay the effectiveness of the Rule in 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) but the North Dakota District Court’s injunction would not bar any effort to apply the 2015 Rule in other states. Other challenges to the Rule are likely, which would likely result in further stays. Also, the U.S. Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“COE”) published a proposed rule in the Federal Register on November 22, 2017, that would establish an “Applicability Date” for the 2015 WOTUS Rule that would be two years after the publication of such a final rule. On January 31, 2018, EPA and COE announced that they finalized this proposed two-year postponement, but the final rule was not yet published in the Federal Register as of February 2, 2018.
Meanwhile, EPA and COE currently plan to apply the definition of WOTUS that was in effect prior to the 2015 Rule and to develop a revised definition of WOTUS. However, it is also possible that one or more states or environmental groups might challenge the new “Applicability Date,” seek to stay its effect pending the outcome of such a challenge, and also seek to apply the 2015 Rule to any allegedly controversial projects.
This chaotic situation has arisen from a series of efforts to extend federal jurisdiction under the Clean Water Act. In 1972, sweeping amendments to the Act prohibited the discharge of pollutants into navigable waters except under conditions authorized by the Act. In the 1972 amendments, the term “navigable waters” was defined to mean WOTUS. Since then, EPA and COE have struggled to define and apply that term, including three regulations promulgated in 1977, 1986/88, and 2015. The 2015 WOTUS Rule was intended to address judicial opinions on the definition of WOTUS, including opinions issued by SCOTUS in 2001 (Solid Waste Agency of Northern Cook County v. Army Corps of Engineers) and in 2006 (Rapanos v. United States).
Over the years, the agencies have sought to expand the potential scope of WOTUS from only waters that were navigable in fact to most surface waters and adjacent wetlands throughout the nation—except for certain categorical exclusions described in the 2015 WOTUS Rule, such as swimming pools and puddles. See Slip Opinion at p. 5; 33 C.F.R §328.3(b)(4); and 80 Fed. Reg. 37105. Also, for many years, EPA’s enforcement policy had a chilling effect on any aggrieved party’s right to challenge such jurisdictional determinations because it was generally believed that there was no opportunity for pre-enforcement review of such jurisdictional determinations. In some instances, EPA increased the pressure to accept unfavorable jurisdictional determinations by delaying enforcement to accumulate larger potential penalties, and even issued administrative orders to double the potential penalties that a party might incur if it litigated with EPA and lost. Fortunately, for the regulated community, the Supreme Court permitted pre-enforcement review of an administrative order in Sackett v. EPA, 566 U.S. 120 (2012), holding that the order was a final agency action subject to review under the Administrative Procedure Act.
Any attempts to apply the 2015 definition of WOTUS would increase the uncertainties because, among other things, it would specifically authorize EPA and COE personnel to make “case specific determinations” of whether certain waters are WOTUS under 33 C.F.R. §328.3(a)(7) and (8) and similar provisions set forth at 40 C.F.R. Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401.
The proposal of EPA and COE to reinstate the pre-2015 definition of WOTUS is clearly preferable to the 2015 definition, but it would reinstate a knowingly flawed definition that previously led to highly disputed jurisdictional determinations over the Clean Water Act’s application to some existing land uses and new land development projects.
While this approach is preferable to the 2015 Rule, it is essential that the government establish a clear and reasonable definition of WOTUS as soon as possible. Among other things, any new definition should require prompt jurisdictional determinations, perhaps within 60 days or at least no longer than 120 days, so that the process does not unduly delay proposed new development plans. Also, aggrieved parties should be able to seek prompt and expeditious judicial review of such jurisdictional determinations.
Clearly, the controversy and uncertainty associated with the Clean Water Act’s potential application to various surface water features and wetlands will not be resolved in the near future. All developers should account for this uncertainty in their development planning until EPA and COE finally develop a clear and reasonable definition of WOTUS. Depending on the circumstances, this might be limited to seeing periodic updates on this issue, but it could also include active participation in future rulemaking activities and/or in any litigation of an issue if it might pose a material risk to their current investments or future plans.