N v N (Rev 1)

In financial provision proceedings after divorce, an order may be reopened for material non-disclosure only where the evidence establishes that relevant information was withheld during the original proceedings, was material to the assessment, and would have made a substantial difference to the order. Later events and hindsight cannot substitute for that finding. The duty of full and frank disclosure continues through the first-instance proceedings, but a positive duty to update financial information throughout an appeal cannot be imposed retrospectively without legal foundation. Misleading conduct during an appeal may be relevant to credibility, but does not itself prove earlier non-disclosure. The appeal was allowed and the original order reinstated.

The parties were formerly married and had two children. In November 2009, the Guildford County Court ordered the husband to pay the wife periodical payments of £1,000 per month until 1 April 2012, with a bar on further extension under the Matrimonial Causes Act 1973.

After subsequent appeals, the wife applied to set aside the 2009 order, alleging that the husband had failed to disclose his work and remuneration. In July 2013, HHJ Raeside found material non-disclosure, set aside the order and directed a fresh determination of maintenance. The husband appealed. The central issue was whether the evidence, including later work and misleading statements during the appeal process, established material non-disclosure in the original proceedings sufficient to justify reopening the order.

Lord Justice McFarlane gave the judgment, with which Lord Justice Patten and Sir Stephen Sedley agreed.

1. Disposition. The appeal was allowed. The order setting aside the November 2009 order was itself set aside, and the 2009 order was reinstated.
2. Disclosure duty. Parties seeking financial provision must provide full and frank disclosure of relevant material, correctly, completely and up to date, so that the court can exercise its statutory discretion lawfully. This principle was established in Livesey v Jenkins [1985] AC 424 and applied to family proceedings through the common-law position described in Vernon v Bosley (No 2) [1999] QB 18. Rule 31.11 of the Civil Procedure Rules 1998 confirms the corresponding civil-procedure position.
3. Appeals. The court left open the general question whether a positive duty to update all financial information continues throughout an appeal. It held, however, that the judge was not entitled retrospectively to impose such a duty merely because disclosure is fundamental at first instance. The trial and appellate processes are materially different, and no sufficient authority or rule supported the judge’s conclusion. The observations in Burns v Burns [2004] EWCA Civ 1258, [2004] 3 FCR 263 did not decide the point.
4. Reopening and proof. Following Gohil v Gohil (No 2) [2014] EWCA Civ 274 and Robinson v Robinson [1982] 1 WLR 786, the court must first make a fact-finding determination, based on admissible evidence and a fair trial, that material non-disclosure occurred during the original proceedings. The undisclosed matter must have been material to the court’s statutory assessment and capable of making a substantial difference to the order. Finality also requires that reopening remain confined to material non-disclosure or a significant supervening event: Barder v Calouri [1988] AC 20.
5. Application. The only identified pre-order non-disclosure was the late-November 2009 email exchange, which should have been disclosed but was not sufficient to justify a significantly different order. Later work history could not, without more, establish the husband’s state of mind or intention in 2009. His misleading conduct before the appellate courts could be considered as evidence of dishonesty, but did not itself prove earlier perjury or non-disclosure. The short hearing, without oral evidence, was also inadequate to support the required findings.

• Court of Appeal (Civil Division) — In [2014] EWCA Civ 314, allowed the husband’s appeal, set aside HHJ Raeside’s order and reinstated the November 2009 periodical payments order.
• Guildford County Court — HHJ Raeside set aside the 2009 order for alleged material non-disclosure and directed a fresh determination of the wife’s maintenance claim.