14 October 2016
Consideration of whether the court was wrong to strike out and give summary judgment in relation to an application to set aside a consent on the grounds of material non-disclosure.
Facts
- The appellant (A) and the deceased (D) began a relationship no later than 1999, entered into a civil partnership in 2008 and separated in September 2009.
- A rejected an early offer to settle financial remedy proceedings as she did not have legal advice and did not know whether it was fair. A then issued her applications for financial remedies, MPS and an a LSO in July 2010.
- Within these proceedings, D disclosed capital assets of £628,917, a pension worth £250,000 and a gross income of £55,312 pa.
- A disputed this, as D had been included in the Times Rich List 2009 where her wealth was said to be in excess of £30m.
- A appealed the MPS award and a refusal of the LSO. Whilst the appeal was remained extant, the parties reached a comprehensive agreement. A received a lump sum (by instalments) of £162,000 together with spousal periodical payments of just over £18,000 for two years with a full dismissal of her claims (including her Inheritance Act 1975 claims) thereafter.
- D then signed off her company accounts, which A contended showed a salary of almost three times that disclosed alongside shareholder funds of £5.5m.
- The parties later resumed their friendship before D died intestate in September 2013.
- On 1 May 2014, A applied to set aside the order on grounds of material non-disclosure. This was dismissed at an abbreviated hearing, permission to appeal was refused, and a costs order was made against A. Permission to appeal was granted once it was known that judgments were forthcoming in Wyatt v Vince [2015] UKSC 14, Sharland v Sharland [2015] UKSC 60 and Gohil v Gohil [2015] UKSC 61.
Held
- The judge had made an error of law by concluding that the application to set aside could be struck out as it had “no real prospect of success”, pursuant to paragraph 2.4 of FPR 2010 PD4A.
- A was right to characterise the decision as summary judgment, a course for which the judge had no jurisdiction under the rules. The outcome could be not be salvaged by applying the nomenclature of ‘abbreviated hearing’ to what took place.
- The Supreme Court confirmed the proper approach to be taken by courts in cases of alleged material non-disclosure in the cases of Sharland and Gohil:
- If an abbreviated hearing is appropriate and fair, proper notice must be given.
- A financial settlement reached between the parties following separation cannot oust the jurisdiction of the court, which much itself conduct an independent assessment to discharge its statutory function under the MCA 1973;
- A continuing duty is owed to the other party and to the court to make full and frank disclosure in both agreed and contested proceedings. It follows that one party cannot exonerate the other from complying with this duty;
- In order to set aside an order, the court must be satisfied that there was nondisclosure, it was material at the time, and it had led to a substantially different order being made;
- A determination of non-disclosure can only be made after hearing live evidence, subject to cases where documentary evidence is effectively unanswerable;
- The phrase ‘summary judgment’ (in Gohil) should be regarded as a generic term to cover a way of dealing with a range of cases in short form across civil family jurisdictions. There is no summary judgment procedure of the type found in the Civil Procedure Rules; Deliberate nondisclosure is presumed to be material. Inadvertent/innocent nondisclosure requires the party making the allegation to prove it was material and would have led to a substantially different order.
- The judge was wrong to relieve D of her obligation to disclose up-to-date company accounts and to place the burden on A to investigate.
- The judge should not have treated the fact that A agreed to the order, notwithstanding her reservations about the honesty of D’s disclosure, as fatal to her application.
- The judge was wrong not to have made findings of fact as to the non-disclosure and its materiality, as this was necessary to determine whether the outcome would have been substantially the same.