Patrick Chamberlayne QC and Peter Mitchell (instructed by Irwin Mitchell Solicitors LLP ) for the wife; Nicholas Francis QC and Nicholas Allen (instructed by JMW Solicitors LLP, Manchester ) for the husband.
During the hearing of the wife’s application for financial provision following divorce, she reached agreement with the husband on the terms of a draft order which were approved by the judge. However, before the order was sealed, the wife applied to resume the hearing on the ground that her agreement had been procured by fraudulent non-disclosure on the husband’s part. She had discovered that, contrary to what he had said in evidence at the hearing, he had been holding discussions with investment bankers in New York in preparation for an initial public offering of a company of which he owned a majority of the shares. The judge ordered the husband to file an affidavit describing in detail his dealings with the bankers, and in the light of its contents found that the husband’s original evidence had been seriously misleading. However, he concluded that the order which he would have made if proper disclosure had taken place would not have been substantially different from the heads of agreement incorporated in the draft order, and dismissed the wife’s application. The wife appealed.
Appeal dismissed. Held (Briggs LJ dissenting), that the judge had correctly recognised as the starting point the speech of Lord Brandon of Oakbrook in Livesey v Jenkins [1985] AC 424. That speech emphasised that the court’s power to make financial provision orders was derived solely from the relevant statutory provisions; that the legal effect of terms embodied in a consent order derived from the order itself, rather than the parties’ agreement; and that the court could not properly exercise its powers unless it had been provided with full information about all relevant circumstances. However, Lord Brandon also emphasised that an order obtained in the absence of full and frank disclosure should be set aside only in cases in which the court had been led into making an order substantially different from that which it would have made if proper disclosure had taken place. The wife’s contention that the order should be set aside if satisfied that proper disclosure might have led to a different outcome was inconsistent with Lord Brandon’s speech and it made no difference that the non-disclosure in the present case was deliberate and dishonest.
Decision of Sir Hugh Bennett sitting as a judge of the Family Division dated 29 April 2013 [2013] EWHC 991 (Fam) affirmed.