Case summary: Neil v Neil [2019] EWHC 3330 (Fam)

Facts

• Terry
  Neil (“H”) and Soraya Neil (“W”) married in 2007 and separated in 2014.
• After
  mediation they created a Memorandum of Understanding (“MOU”), which made no
  provision for spousal maintenance and which created a charge on W’s new
  property in H’s favour if the FMH sold for more than a certain amount.
• W’s
  solicitors, XYZ, drafted a consent order on the basis of the MOU. On W’s
  instructions, XYZ then included a nominal maintenance order of £1 pa and
  removed the charge back clause.
• XYZ
  sent the draft to H along with a letter saying it reflected the terms of the
  agreement reached at mediation (despite the amendments.) W and H both signed this
  first draft order.
• W
  was negotiating a mortgage with Coutts and sent them an unsigned draft order,
  which had included in it a clause saying that H would pay periodical payments
  of £66,000 pa (£5,500 pcm). On this basis W’s mortgage application was successful.
• Coutts
  then said that they needed to see a signed draft order and to receive written consent
  from H stating he was happy with the divorce settlement. W sent a copy of the
  draft order (with provision for periodical payments of £5,500 pcm) unsigned by
  her but purportedly signed by H, to Coutts.
• An
  email was then sent from H’s email address to Coutts confirming the spousal
  maintenance arrangements. H said W must have sent this from his email address.
• W
  signed the final order, with the substantial periodical payments clause, and
  there was a signature purportedly from H on the document.
• In
  2017, H made an application to set aside the order on the basis of forgery and
  fraud.
• Separately,
  following chancery proceedings, H made an application to commit W to prison for
  contempt of court and W was duly committed to prison.

Issues

• Was
  the order procured by forgery and fraud and should it therefore be set aside?
• If
  the order was indeed set aside, did the court have to set the case down for a
  rehearing?

Held

• Mr
  Justice Moor found that:
• Without
  H’s knowledge, W got XYZ to amend the MOU to delete the charge back and include
  nominal maintenance of £1 pa.
• H
  signed the first consent order thinking it was in accordance with the MOU
  (having failed to read it through carefully, or instruct legal advisors of his
  own.)
• W
  sent Coutts a document which she accepted she falsified by changing maintenance
  of £1 pa to £66,000 pa to get the mortgage she wanted, and then sent them
  another document to which she added H’s signature from an earlier document.
• She
  sent fraudulent emails to Coutts purporting to be from H when they were
  actually sent by her, and H knew nothing about this.
• W
  sent back the final consent order with a signature on it from H, and although
  Moor J could not be sure that H did not sign it, he was sure that H was not
  aware of what he was signing.
• H
  was very naïve and W was thoroughly dishonest. Moor J had never before come
  across a court order obtained by fraud in the way W obtained the order
  dishonestly, which was conduct of the most serious nature under s 25(2)(g).

• As
  a result, it followed ‘as sure as night follows day, that the Husband is
  entitled to a set aside of the order’ [78]. However, H only sought to set aside
  the periodical payments order and for Moor J to determine the amount W owed to
  him regarding the proceeds of sale of the FMH.
• The
  order provided that W should receive the first £1m of the proceeds of sale of
  the FMH and that H should get the balance. Since W had already paid £100,000 towards
  the balance of £348,930, Moor J ordered that she should pay £248,930.
• Since
  the case was ‘crying out for a final determination now’ [81] and Kingdon v
  Kingdon [2010] EWCA Civ 1251 is authority for judges not having to set cases
  down for rehearing if they are clear as to the correct outcome, Moor J
  immediately imposed a clean break because there was no realistic prospect W
  would get a substantive maintenance order against H.
• Moor
  J decided not to report W to the DPP but noted he ‘undoubtedly would have done
  so had she not already served an eight-month sentence for contempt’ [88].
• W
  was ordered to pay H’s costs on the indemnity basis given the serious findings
  of fact made.