Evans v Evans

Fresh evidence may justify appellate intervention where it shows that the first-instance judge would or might have made a different order. In such circumstances, the appellate court may set aside the original terms and exercise its own discretion. That discretion may include making a decree absolute conditional on protective arrangements addressing the parties’ related financial claims.

The wife appealed against the President of the Family Division’s order that a decree nisi, obtained in April 2011, should be made absolute in July 2012. The order was made during proceedings concerning the parties’ ancillary relief claims. The wife obtained a stay and permission to appeal after obtaining an opinion from American lawyers that making the decree absolute before retrial of her financial claims could seriously prejudice enforcement of a possible share-transfer order. The central issue was whether that fresh evidence justified setting aside the President’s order.

Lord Justice Thorpe delivered the judgment, with Lord Justice Laws and Sir Stephen Sedley agreeing. The appeal was allowed.

1. The issue was exceptionally narrow: whether the decree nisi, which had become nearly stale, should be made absolute in circumstances where fresh evidence was available to the appellate court.
2. Although the wife had known that the application for decree absolute would be heard on 30 May and had not raised the point then, the court accepted that the American lawyers’ letters might have led the President to make a different order. The materiality of the evidence was reinforced by the husband’s subsequent proposal to transfer one-third of the shares in the American company to the wife pending completion of specified confidentiality and non-competition documents.
3. The appellate court therefore set aside the terms fixed by the President and exercised its own discretion. The husband was permitted to obtain the decree absolute only after fortifying the executed amendment to the stockholders agreement by executing a transfer of one-third of the shares in the American company, to be held to the wife’s order pending completion of the required documents.

The decree was to be made absolute once the share transfer had been executed. Order: appeal allowed.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1293, the appeal was allowed. The President’s terms for making the decree absolute were set aside and replaced by a conditional order.
2. Principal Registry of the Family Division: The President ordered that the decree absolute be made on 3 July 2012, as explained in his judgment of 16 June 2012.