Heyer v Newby

In an application to set aside a financial consent order for material non-disclosure, the applicant’s promptitude must be assessed in the full circumstances. It cannot be considered in isolation from the respondent’s continuing duty to provide the core information needed for the issue to be professionally evaluated. Where the order includes variable, continuing maintenance, a substantial change in the payer’s circumstances increases the importance of that duty. Delay may be excused where the applicant lacked sufficient information and the respondent failed to respond informatively to enquiries. The assessment is one of overall, proportionate judgment, and an appellate court should not interfere with a first-instance conclusion that was open on the facts and law.

The parties divorced in January 2002. Shortly before decree absolute, they made a consent order under which the wife received capital and joint lives periodical payments. Press reports later indicated that the husband had obtained substantial benefits following the sale of a company. The wife raised the matter with the husband and through solicitors, but the information was not disclosed in sufficient detail. After receiving the husband’s Form E in December 2003, she applied in January 2004 to vary maintenance and set aside the consent order for material non-disclosure.

Miss Parker QC, sitting as a deputy High Court judge in the Family Division, found a material breach of the duty of full and frank disclosure but held that the wife’s delay did not disentitle her to relief. The husband appealed on delay alone. A separate application challenged the costs order. The central issues were whether the wife had delayed unduly and whether the costs decision was impermissible.

1. Appeal and costs application dismissed. The first-instance finding of material non-disclosure was not challenged. The judge was entitled to conclude that the wife’s delay did not bar relief and that the husband should pay the costs of the successful set-aside application.
2. The duty of promptitude owed by an applicant must be measured against the respondent’s obligation to furnish, at least, the core information required to evaluate professionally whether the consent order should be challenged. The wife’s enquiries had been brushed aside, and the husband and his solicitor did not take the available opportunities to disclose the relevant information.
3. The respondent’s obligation was especially significant because the order contained a substantial joint lives periodical payments provision with RPI uplift. A substantial change in the payer’s financial circumstances therefore increased the obligation to communicate that change.
4. The assessment of undue delay requires the judge to weigh all the circumstances and reach a proportionate judgment as to which side of the line the case falls. The appellate court found that Miss Parker had applied the relevant authorities properly and that her conclusion was open to her in law.
5. The separate costs challenge had no measurable prospect of success. The set-aside application was a distinct preliminary issue on which the wife had succeeded, and the judge’s decision to award her costs was within the broad costs discretion available after a fact-intensive trial.

• Court of Appeal (Civil Division): dismissed the husband’s appeal against the deputy High Court judge’s decision and refused the separate application for permission to appeal concerning costs.
• High Court of Justice, Family Division: Miss Parker QC, sitting as a deputy High Court judge, found material non-disclosure but held that the wife’s delay did not disentitle her to set aside the consent order; she awarded the wife the costs of that application.