Neil (“H”) and Soraya Neil (“W”) married in 2007 and separated in 2014.
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.
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.
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.
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.
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.
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.
signed the final order, with the substantial periodical payments clause, and
there was a signature purportedly from H on the document.
2017, H made an application to set aside the order on the basis of forgery and
following chancery proceedings, H made an application to commit W to prison for
contempt of court and W was duly committed to prison.
the order procured by forgery and fraud and should it therefore be set aside?
the order was indeed set aside, did the court have to set the case down for a
Justice Moor found that:
H’s knowledge, W got XYZ to amend the MOU to delete the charge back and include
nominal maintenance of £1 pa.
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
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.
sent fraudulent emails to Coutts purporting to be from H when they were
actually sent by her, and H knew nothing about this.
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.
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).
a result, it followed ‘as sure as night follows day, that the Husband is
entitled to a set aside of the order’ . 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.
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.
the case was ‘crying out for a final determination now’  and Kingdon v
Kingdon  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.
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’ .
was ordered to pay H’s costs on the indemnity basis given the serious findings
of fact made.