Financial relief proceedings: misrepresentation and mistake

In Adodo v Tan [2024] EWCA Civ 1288, [2025] 4 WLR 1 (28 October 2024) Moylan LJ provided a text-book judgment to explain the court’s ability, as the law now stands, to set aside – that is to send a case back to the beginning for rehearing – a first instance decision in matrimonial financial relief proceedings. Here the grounds for set aside were misrepresentation or mistake by one party which resulted in the court being misled by that party. The appeal also considered afresh the principles on which – per Ladd v Marshall [1954] 1 WLR 1489, (1954) FLR Rep 422 – an appellate court can admit evidence which was not before the court below.

In financial relief proceedings before a district judge a wife (T) said she had inadvertently given inaccurate evidence of an important asset available to her; and thus she significantly underestimated to the district judge her available resources. The husband (A) appealed to a circuit judge, having discovered T’s inaccuracy as to her resources. He alleged material misrepresentation and applied for the district judge’s order to be set aside. The circuit judge dismissed A’s appeal.

On a second appeal to the Court of Appeal A’s appeal was allowed, and the district judge’s original order was set aside. The primary obligation to give full and frank disclosure fell on T, said the Court of Appeal. She could not avoid the consequences of her misrepresentation by saying that the true position could have been discovered by A. That would be to reverse the parties’ respective obligations. The circuit judge should have admitted the fresh evidence which had come to light since the original decision.

T’s misrepresentation was material to the outcome of the original case. The meaning and significance of ‘materiality’ (ie beyond ‘relatively minor’) to a set aside appeal was explained fully by the Court at [54]-[57]. The case must therefore be reheard afresh, with all the correct information available to the court.

Family courts and the power to set aside

Adodo v Tan recalls that since the coming into operation of Matrimonial and Family Proceedings Act 1984 (MFPA 1984) Part 4A (introduction of the family court in April 2014) the power in the family court to set aside an order has been held by the Supreme Court in Sharland v Sharland [2015] UKSC 60, [2016] AC 871, [2015] 2 FLR 1367 (14 October 2015) to be provided for on a statutory basis. This is by MFPA 1984 s 31F(6) which says:

“(6) The family court has power to vary, suspend, rescind or revive any order made by it, including—

(a) power to rescind an order and re-list the application on which it was made,

(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made.”

In Sharland Lady Hale confirms that s 31F(6) include that it gives the family court the power to set aside financial relief orders. Despite what Lady Hale says, it is striking that s 31F(6) does not specifically use the term “set aside”; nor does it use the term “review” of children orders as proposed by Peter Jackson LJ in Re E (Children: Reopening Findings of Fact) (see below). It remains the case that it is a provision which is of application in a wide set of family proceedings circumstances where it applies.

Of s 31F(6) itself in matrimonial and civil partnership financial relief cases (in particular) Lady Hale says that the provision:

“[41] … Gives the Family Court power ‘to vary, suspend, rescind or revive any order made by it’. FPR r 4.1(6) provides that ‘A power of the court under these rules to make an order includes a power to vary or revoke the order’. On the face of it, as the editors of The Family Court Practice 2015 point out (p 1299 [a contribution written by the author of this post]), this is a very wide power which could cut across some other provisions, for example those prohibiting variation of lump sum…. It does give the Family Court power to entertain and property adjustment orders…. an application to set aside a final order in financial remedy proceedings on the well-established principles with which we are concerned in this case…” (emphasis added).

Section 31F(6) and “review” of children proceedings orders

In the children jurisdiction of the family courts Peter Jackson LJ in the Court of Appeal has commended the powers under s 31F(6) as providing a means to review an earlier order where fresh facts have come to light which could enable the court to review its original order: In re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, [2019] 1 WLR 6765, [2020] 1 FLR 162 (14 August 2019). As the WLR headnote says of MFPA 1984 s 31F(6):

“The power of the Family Court under [s 31F(6)] to vary or rescind any order made by it included the power to reconsider findings of fact it had made on an issue that was crucial to the disposal of the proceedings and so was integral to the order that was made; that, further, section 31F(6) continued to apply after the end of the individual set of proceedings so that such reconsideration could occur at any time thereafter…”

The procedure by which setting aside an order is done is picked up in Adodo where the Court says based on Sharland at [42], on s 31F(6) and Family Proceedings Rules 2010 (FPR 2010) r 9.9A (to which I return). The Court continues by looking at whether the appeal route or to set aside back to the same court was a matter of a party’s choice:

“[52] … Which is the more appropriate route depends on the circumstances of the case including, in particular, the extent to which there are issues of fact which need to be or may need to be resolved. In the present case, I consider that the husband was entitled to choose the appeal route having regard to the matters in issue.”

This point and that of Lady Hale, makes no reference to the date of the appeal and of the order appealed against, and of the procedural limit provided by permission to appeal out of time under the House of Lords decision in Barder v Barder (Caluori intervening) [1988] AC 20, [1987] 2 FLR 480. This requires review in a separate post. Section 31F(6) must surely be considered with the House of Lords authority of Barder in mind.

Why a procedure for setting aside only financial relief orders?

Gohil v Gohil (No 2) [2015] UKSC 61, [2016] AC 849, [2015] 3 WLR 1085, [2015] 2 FLR 1289 (14 October 2015) was heard and disposed of in parallel with Sharland. In Sharland Lady Hale commended what was said by Lord Wilson in Gohil at [18]. For present purposes this includes at [18](d) per Lord Wilson:

“(d) The minutes of the meeting of the Family Procedure Rule Committee on 20 April 2015 have been placed before this court. The committee’s conclusion, which in my view this court should indorse, is that its ‘Setting Aside Working Party’ should proceed on the basis that:

‘(i) there is power for the High Court and the family court to set aside its own orders where no error of the court is alleged and for rules to prescribe a procedure; (ii) the rule should be limited so as to apply to all types of financial remedy only; (iii) … ; (iv) applications to set aside should be made to the level of judge (including magistrates) that made the original order; and (v) if an application to set aside can be made, any application for permission to appeal be refused’.”

This suggestion is open to two objections:

  1. MFPA 1984 s 31F(6) and Lady Hale’s comment on it are intended to apply to financial relief proceedings; yet s 31F(6) expressly applies to all proceedings in the Family Court (as Peter Jackson LJ in Re E makes clear)
  2. It uses obscure language based on rules over 80 years old to describe a modern process which is covered by a statute – s 31F(6) was introduced by a 2014 statute – barely ten years ago.

Where “no error alleged”: meaning at common law and for family proceedings

FPR 2010) r 9.9A says:

“Application to set aside a financial remedy order

9.9A.—(1) In this rule—

… (b)“set aside” means—

(i) in the High Court, to set aside a financial remedy order pursuant to section 17(2) of the Senior Courts Act 1981 and this rule;

(ii) in the family court, to rescind or vary a financial remedy order pursuant to [MFPA 1984] s 31F(6).

(2) A party may apply under this rule to set aside a financial remedy order where no error of the court is alleged.”

An important aside on the job of rule makers is Courts Act 2003 s 75 which includes that: ‘(5) Any power to make Family Procedure Rules [by rule makers] is to be exercised with a view to securing that … the rules are both simple and simply expressed.’ This is a statutory duty. Any reader is entitled to ask whether, in truth, it can fairly be said that r 9.9A complies with rule makers’ statutory duties under s 75(5), especially in the light of what follows.

The expression “no error of the court is alleged” adopted by FPR 2010 r 9.9A for financial relief cases is derived from 1940 Matrimonial Causes Rules and was explained as long ago as 1947 in relation to those particular rules by the then President of the Probate, Divorce and Admiralty Division in Peek v Peek [1948] P 46 (PDA Div Ct: Lord Merriman P and Wallington J) at 60:

“It seems to me that the real point is this (bearing in mind that the question whether error is alleged is a question of substance and not a question of form, as I said earlier in this judgment): is the allegation which is made against the decision an allegation that the court went wrong on the materials before it, or is it an allegation that the court went wrong because evidence on a vital matter was concealed from the court.”

What Lord Merriman P was saying of the then rule by which a party applied for a ‘re-hearing’ was (ie the terminology for a set aside application): was the court dealing with an appeal (ie the judge got the law or facts or both wrong, said the claimant party; or was something concealed form the court, and so an application to set aside (eg non-disclosure, mistake, etc). The Court of Appeal para [52] seems to loose this distinction. To be referred to again in another post.

Peek v Peek: the meaning of “no error” in 2025 and under MFPA 1984 s 31F(6)

In Peek the application was, as applicable under 1947, under Matrimonial Causes Rules 1944 r 36. That rule says

“(1) An application for re-hearing of a cause heard by a judge alone where no error of the court at the hearing is alleged shall be made to a Divisional Court of the Probate Division … (2) Any other application for re-hearing shall be made by way of appeal to the Court of Appeal.”

That preserves or is intended to preserve – and in legal language current 80 years ago – the distinction between an application to set aside (ie for a re-hearing), and an appeal. Lord Merriman P explains what that distinction means as between the court getting the case wrong (ie which leads to an appeal) and material being concealed from the court (leading it an application to set aside).

For twenty-first century readers, what s 9.9A(2) is trying to say is that you apply to the court which made the order, save where you should appeal. The problem is with negative expression rule-drafting is that the absence of what you are referring to – “an error of the court” – must be clear. In r 9.9A it is not clear. The rule maker does not say what the positive aspect is (eg the absence of death is life etc). What does an applicant (A) apply for in the absence of an appealable issue: ie where “no error of the court at the [original] hearing is alleged”?

Under Peek if A still alleges an “error of the court” or some other reason (eg recission of a conditional divorce order) and it is not appealable, then – positive direction – A must apply to the court below for a re-hearing. In modern parlance this means one of a number of routes.

Fresh evidence on appeal: Ladd v Marshall

Of the question of admitting fresh evidence on the hearing of an appeal the Court of Appeal explained their view of the currency of Ladd v Marshall (above) which they explained as summarised by the Court by Popplewell LJ in Al Sadeq v Dechert LLP [2024] EWCA Civ 28, [2024] KB 1038; 2024] 3 WLR 403, where he said:

“[141] This court has a discretion under CPR 52.21(2)(b) to receive evidence on appeal which was not before the lower court. The well-known test in Ladd v Marshall [1954] 1 WLR 1489 continues to provide important guidance as to the exercise of the discretion, although the discretion is not confined by it: evidence may be admitted where the test is not fulfilled, or not admitted where it is, if either is dictated by furtherance of the overriding objective…

[142] The Ladd v Marshall test is that new evidence will be allowed on appeal if three conditions are fulfilled, namely: (1) the evidence could not have been obtained with reasonable diligence for use at first instance; (2) if given, the evidence would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence is such as is presumably to be believed.”

A meaning for s 31F(6): a set aside law which covers all family proceedings

Section 31F(6) and Sharland do not tell you what r 9.9A means. Judicial comment and rules, back to 1947 (reproduced in County Court Rules 1981), is required for that. To understand the meaning of r 9.9A(2) a reader must go back to the predecessors to County Court Rules 1981 Order 37 r 1(1) (ie the wording of the earlier versions which Lord Merriman was construing in Peek v Peek). Order 37 r 1 says:

“Rehearing

1(1) In any proceedings tried without a jury the judge shall have power on application to order a rehearing where no error of the court at the hearing is alleged.” (Emphasis added.)

The modern rule makers have adopted these words for setting aside financial relief cases (only) in 2016 and beyond, without any clarity as to their original source of around 80 years and more ago or of their real meaning in the context of modern statute law. More needs to be explained in a later post of the procedural sources of applications under s 31F(6) in family proceedings generally – that is  not only in just family proceedings financial relief cases. And rule makers need please to be clear on the difference between procedural rules on set aside and appeal proceedings where later events have altered the original factual background as found by the court which made an original order (eg mistake or misrepresentation or Barder (above) appeals).

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