Rose v Rose

In ancillary relief proceedings, a family court may use its inherent jurisdiction to strike out an application seeking to reopen a final consent order where no useful purpose would be served by reopening it. The court should apply the strong public interest in finality, while recognising the exceptional residual jurisdiction to address fraud or material non-disclosure. Failure of disclosure justifies reopening only where it is likely to have produced an order substantially different from the order made. Unreasonable delay is an additional ground for refusing to permit the challenge to proceed.

The husband sought to set aside a consent order made on 3 August 2001, under which he had agreed to pay the wife a lump sum of £3.5 million in full and final settlement of her ancillary relief claims. He alleged that the wife had failed to disclose the true nature and future intentions of her relationship with another man.

The wife applied to strike out the proposed application under Order 18 rule 19 of the Rules of the Supreme Court 1965 and/or the court’s inherent jurisdiction. The central issues were whether the family court had power to filter the application, whether the alleged non-disclosure was materially capable of affecting the consent order, and whether the husband’s delay was fatal.

1. Application struck out. The husband’s application to set aside the consent order was doomed to failure and was struck out.
2. The family court may exercise its inherent jurisdiction to prevent an application from reopening an ancillary relief order where no useful purpose would be served by doing so. The court may apply the principles in Livesey v Jenkins [1985] FLR 813 HL, Barder v Barder (Caluori Intervening) [1987] 2 FLR 480 HL, Harris v Manahan [1997] 1 FLR 205 CA and Shaw v Shaw [2002] EWCA 12, [2002] 2 FLR 1204. Finality in financial litigation is of high public importance, and reopening remains exceptional.
3. The operative date for assessing alleged non-disclosure was the date of the order, 3 August 2001. The husband knew that the relationship was continuing and had the opportunity to challenge the wife’s account or proceed to a final hearing. The later evidence did not demonstrate that the wife’s statement that the relationship had cooled was false or that the order would probably have been materially different.
4. There was no evidence of dissipation or squandering. The proposed trust over the wife’s home was therefore a wholly unlikely outcome, particularly since the husband had agreed to an outright lump sum when the relationship was known to exist.
5. The delay from August 2001 to August 2002 was wholly unreasonable. The husband had identified the alleged problem in August 2001, yet waited to issue proceedings. That delay provided an additional reason to prevent the application continuing.

First-instance decision. The judgment refers to an earlier Court of Appeal decision in the same litigation, [2002] EWCA 208, but that decision concerned the same dispute.