G v S

An ancillary relief order may be set aside for misrepresentation, non-disclosure or mistake only where the true facts would probably have produced a substantially different order. A later event permits reopening under the Barder principle only where it invalidates the basis or fundamental assumption of the order and a materially different result would be highly likely. Dramatic changes in asset value caused by natural developments or market conditions do not ordinarily satisfy that test. The court must assess whether the matter affected the reasoning and outcome, rather than merely whether information was misstated or circumstances changed. Finality remains an important consideration in financial remedy litigation.

The applicant former wife sought to set aside a 2006 ancillary relief order made after a lengthy separation. The order transferred the former matrimonial home to her, required the respondent former husband to make substantial lump-sum payments and provided for pension sharing, but gave her no share in the future value of his company.

She relied on alleged misrepresentation and non-disclosure, mistake, and a supervening Barder event. The company was later refinanced, paid dividends and preference-share value to the husband, and was sold for substantially more than the valuation range discussed at the original hearing. The central question was whether those matters justified reopening the order.

1. The application was dismissed. It was not an appeal against the original decision. The wife had to show both an established misrepresentation, non-disclosure, mistake or Barder event and that the true facts or later event would probably have produced a substantially different order.
2. The duty of full and frank disclosure continued until judgment. A failure during that period had vitiating effect only if the undisclosed matter was material in the sense that disclosure might have led to a materially different outcome. The husband had misstated the source of funds used to pay the lump sum and had failed promptly to disclose receipt of preference-share dividends, but those matters did not affect the substantive basis of the order.
3. The order deliberately left the husband with the risk and reward of the company. The decisive consideration was the company’s transformation through the husband’s post-separation efforts, rather than its precise value or then-current illiquidity. The later refinancing, dividends, preference-share redemption facility and sale therefore did not undermine the conclusion that the wife should not participate in the company’s future fortunes.
4. The subsequent sale and dramatic increase in value were natural developments arising from new contracts, improved finance and unusually favourable market conditions. They were not unforeseen and unforeseeable events invalidating the original decision. Applying the approach in Judge v Judge [2008] EWCA Civ 1458 and the analysis in Cornick v Cornick (No 1) [1994] 2 FLR 530, the case fell within the category of a change in value, not a qualifying Barder event.
5. The court declined to reopen the litigation. The conclusion was fact-specific, and the importance of finality in ancillary relief proceedings supported bringing the matter to an end.