Patrick Chamberlayne QC and Peter Mitchell for the wife; Nicholas Francis QC and Nicholas Allen for the husband.
The wife applied for an order that the hearing, in ancillary relief proceedings, which concluded in July 2012 be resumed on the grounds of material non-disclosure by the husband. The husband, maintaining that he had given full and frank disclosure and/or that the non-disclosure was not material, cross-applied for the wife to show cause why the heads of agreement entered into in July 2012 and approved by the judge and then converted into a court order, should not be made an order of the court and sealed accordingly.
Wife’s application dismissed. His Lordship said that it was absolutely plain that the husband’s evidence in July 2012 was seriously misleading and his evidence when placed against the documents he subsequently disclosed could only be categorised as dishonest. Bokor-Ingram v Bokor-Ingram [2009] 2 FLR 922, para 18 made it clear that the duty to disclose extended beyond what was certain on the date that the order was made to any fact relevant to the court’s review of the foreseeable future. Had his Lordship known the facts at the time it was inconceivable that he would not have regarded them as relevant to the exercise of his discretion. However, on the facts, any order which would have been made if proper disclosure had taken place would not have been substantially different from the heads of agreement incorporated into the draft unsealed order his Lordship had approved: see Jenkins v Livesey (formerly Jenkins) [1985] AC 424, 445. Accordingly, notwithstanding that the husband was guilty of non-disclosure, in all the circumstances the non-disclosure was not material. It followed that the wife’s application was dismissed and the draft order of July 2012 should be sealed forthwith (paras 29,31, 33, 34, 43).