Gosain v Gosain

An ancillary relief order may be reopened where subsequent evidence suggests that it was affected by dishonest evidence or a breach of the duty of full and frank disclosure. The appropriate course may be a limited retrial of the disputed factual issue, followed by reconsideration of the financial order if the issue is established. The Court of Appeal should avoid resolving disputed and potentially forged documents itself where the trial court is better placed to determine them. This jurisdiction is distinct from the special circumstances identified in Barder v Barder [1987] 2 FLR 480.

The husband appealed from the refusal of His Honour Judge McDowall, sitting at Wandsworth County Court, to adjourn his appeal against an ancillary relief order made by District Judge Plaskow at Brentford County Court on 19 March 1999. The application concerned newly discovered documents suggesting that the wife continued to own a flat in New Delhi, contrary to her sworn evidence that she had sold it unconditionally in 1994.

The central issue was whether the new material justified reopening the proceedings and, if so, whether the matter should be resolved by this court or remitted for determination at trial.

The Court of Appeal granted permission to appeal and allowed the appeal. Judge McDowall had acted properly on the material available to him, but the later evidence required a limited revival of the proceedings.

1. The apparent continuing ownership of the New Delhi property was potentially significant. The District Judge had identified the wife’s ability to remain in the United Kingdom, rather than return to India, as the principal issue in the ancillary relief proceedings. If the wife had retained a home in New Delhi, that fact could affect the assessment of the husband’s capital obligations, notwithstanding the property’s relatively modest value.
2. The wife had been given a sufficient opportunity to answer the documents. A further short adjournment was unlikely to produce conclusive evidence and would increase costs. The question whether the documents were genuine, and whether they established continuing ownership, was better determined by the trial court than by the Court of Appeal.
3. The court was not applying the exceptional jurisdiction discussed in Barder v Barder [1987] 2 FLR 480. The case fell within the principle identified in Robinson v Robinson, under which an ancillary relief order may, in the court’s discretion, be set aside and replaced where it is shown to have been vitiated by dishonest evidence or a breach of the duty of full and frank disclosure.
4. The order of Judge McDowall was set aside. The case was remitted to District Judge Plaskow, if available, for a limited retrial of whether the wife remained owner of the New Delhi property. If she did, the court was to decide whether that ownership justified a reassessment of the capital obligations. There was no order for costs.

• Court of Appeal (Civil Division): [2001] EWCA Civ 1434 — permission to appeal granted, appeal allowed, and the case remitted to District Judge Plaskow for a limited retrial.
• Wandsworth County Court: His Honour Judge McDowall refused an adjournment of the husband’s appeal against the ancillary relief order and dismissed the appeal.
• Brentford County Court: District Judge Plaskow made the ancillary relief order on 19 March 1999.