Sealy v Sealy

Where orders in ancillary relief proceedings are alleged to have been obtained through material non-disclosure, the proper course is ordinarily to apply to set them aside before the first-instance court rather than pursue an appeal to introduce fresh evidence.

Alleged non-disclosure is a factual issue requiring determination on evidence. An appellate court cannot properly resolve such issues on appeal. Evidence advanced in support of a setting-aside application is not subject to the discretionary permission requirement applicable to fresh evidence on appeal.

The parties’ marriage had been dissolved and orders had been made in ancillary relief proceedings concerning the former matrimonial home, periodical payments and arrears. The appellant later alleged that the respondent had failed to give full, frank and clear disclosure of her financial position and sought to adduce evidence of her alleged income.

Her Honour Judge Campbell, sitting in an appellate capacity, refused permission for the fresh evidence to be adduced. Permission to appeal was initially refused on the papers. On renewal, the central issue was whether the appellant should continue with the appellate route or apply to set aside the earlier orders on the ground of material non-disclosure.

Lord Justice Wall gave the lead judgment, with Lord Justice Jonathan Parker agreeing.

1. Disposition. The court granted permission for the appellant to withdraw the renewed application for permission to appeal. The question of any further directions and the assessment of publicly funded costs was left for later consideration.
2. Proper procedural route. The appellant’s case was that the earlier ancillary relief orders had been obtained through the respondent’s material non-disclosure. The proper course was to apply to the district judge or circuit judge to set aside those orders on that ground, rather than pursue an appeal against the refusal to admit fresh evidence.
3. Factual determination on evidence. Allegations concerning the respondent’s income and disclosure raised factual issues which required determination by a judge on evidence. An appellate court, whether the Court of Appeal or a circuit judge exercising appellate jurisdiction, could not properly determine issues of that nature on appeal. The setting-aside route also avoided multiple hearings and unnecessary expense.
4. Jurisdiction and evidence. There was jurisdiction to reconsider and, where appropriate, set aside orders obtained by material non-disclosure, although any application would be determined on its merits. Both parties were required to make their best efforts to provide full, frank and clear disclosure, and cross-allegations of non-disclosure could arise.
5. Evidence relied on in an application based on material non-disclosure was put forward as of right. Permission was therefore unnecessary for that evidence in the setting-aside proceedings, unlike the discretionary question whether it should be admitted on an appellate rehearing.

• Court of Appeal (Civil Division): On 14 October 2005, the court granted permission to withdraw the renewed application for permission to appeal against the refusal to admit fresh evidence and indicated that the appropriate course was an application to set aside the earlier orders for material non-disclosure.
• Thorpe LJ: On 9 March 2005, permission to appeal was refused on the papers.
• Reading County Court: On 17 September 2004, Her Honour Judge Campbell, sitting in an appellate capacity, refused the application to adduce fresh evidence.
• District Judge Fortgang: Made later orders concerning arrears, a final charging order and capitalisation of maintenance.
• District Judge Sonnex: On 21 March 2001, made the original ancillary relief orders, including transfer of the former matrimonial home and periodical payments.