Gohil v Gohil

A final financial relief order, including a consent order, may be set aside for fraud, mistake or material non-disclosure concerning facts existing when the order was made. The court must first conduct a proper fact-finding exercise and establish material non-disclosure on admissible evidence, applying the ordinary burden and standard of proof. The principles in Ladd v Marshall guide the reception of fresh evidence, particularly on appeal, but do not create a separate jurisdiction to reopen an order merely because credible new evidence has emerged. Suspicion, untested assertions and later events do not suffice to establish non-disclosure at the date of the order. Only after that finding may the court decide whether the order should be set aside and the financial claim reheard.

Following divorce and a 2004 consent order for financial relief, the wife alleged that the husband had concealed substantial resources. After his later criminal convictions and further financial evidence, Moylan J set aside the clean-break provision and directed a rehearing under [2012] EWHC 2897 (Fam). The husband appealed, challenging first-instance jurisdiction, reliance on Ladd v Marshall, the adequacy and admissibility of the evidence, and reliance on material from criminal proceedings obtained through mutual legal assistance. A separate appeal had held that the relevant criminal documents could not be deployed in the family proceedings: Gohil v Gohil [2012] EWCA Civ 1550. The central issue was whether material non-disclosure existing in 2004 had been established so as to permit the final order to be reopened.

Appeal allowed. The Court of Appeal unanimously set aside Moylan J’s order, including the costs provisions, and replaced it with an order dismissing the wife’s application.

1. The jurisdiction to set aside a final financial relief order, whether made after trial or by consent, for fraud, mistake or material non-disclosure was confirmed in Livesey v Jenkins [1985] AC 424 and reaffirmed in S v S [2014] EWCA Civ 95. The relevant non-disclosure must concern facts existing when the order was made and must be material, such that proper disclosure would probably have led to a substantially different order.
2. Robinson v Robinson [1982] 1 WLR 786, expressly endorsed in Livesey, established that factual issues must be determined before the power to set aside is exercised. Such applications should ordinarily be brought as fresh proceedings before a first-instance judge. The court did not decide whether issuing an entirely fresh application was mandatory in every case. If an appeal is pursued, the Court of Appeal may remit the matter for fact-finding under Civil Procedure Rules 1998, rule 52.10(2).
3. The three conditions in Ladd v Marshall [1954] 1 WLR 1489 concern the reception of fresh evidence at the appellate stage. They may guide the preliminary assessment of fresh evidence in a Livesey application, but cannot themselves found an alternative jurisdiction to set aside a final order. Removing the clean-break provision was, in substance, reopening the order and required the same threshold as setting aside the whole order.
4. Moylan J had not made a positive finding, on properly admissible and tested evidence, of material non-disclosure in 2004. The Odessa transactions and Mumbai property evidence related principally to later events and did not establish the necessary evidential bridge to 2004. The criminal-process material, including the affidavit evidence, could not be relied upon as evidence because of the earlier mutual legal assistance ruling, and the prosecution’s untested assertions could not be treated as proven facts. The wife had a sufficient basis to issue an application, but not to obtain an order setting aside the consent order at that preliminary stage.

Lady Justice Arden and Lord Justice Pitchford agreed with Lord Justice McFarlane.

1. Court of Appeal (Civil Division): The husband’s appeal was allowed. Moylan J’s order and costs provisions were set aside and the wife’s application was dismissed.
2. High Court, Family Division: Moylan J set aside paragraph 5 of the 2004 consent order and directed a rehearing of the wife’s financial relief claim, in [2012] EWHC 2897 (Fam).