Chapman v Kawash

Permission to appeal from a financial remedy consent order may be granted where subsequent evidence provides a realistic prospect that significant non-disclosure affected the order. The fact that the applicant knew, or suspected, that the undisclosed asset existed does not automatically prevent the order being set aside. However, where a party knowingly takes a view and deliberately compromises an issue concerning disclosure, the order will not necessarily be set aside. The effect of that compromise is a matter for the substantive appeal.

The wife applied for permission to appeal, and permission to appeal out of time, from a consent order requiring the husband to pay her US $100,000 in full and final settlement of her financial claims. The order had been made on the basis that both parties had negligible capital.

After the order, evidence emerged suggesting that the husband owned, or had an interest in, valuable land in Jordan. The wife had previously suspected that such an asset existed and had asked for land-registry documents before agreeing the consent order. The central issue at this stage was whether the proposed appeal had a realistic prospect of success and whether permission should be granted out of time.

1. Permission granted. The wife was granted permission to appeal and permission to appeal out of time. The proposed appeal had a realistic prospect of success because the evidence, including the contrast between the earlier disclosure and the later account from the husband’s solicitors, indicated potentially significant non-disclosure.
2. The apparent non-disclosure concerned a potentially valuable asset. The difference between the parties having negligible capital and the husband having an interest in land valued at approximately £1.6 million was sufficiently material to justify an appeal.
3. The court distinguished between a case in which an applicant discovers an asset of which she had no previous knowledge and a case in which she already knew, or suspected, that the asset existed. In the latter case, her knowledge did not automatically defeat the application. It could, however, be relevant to whether she had deliberately compromised the disclosure issue by taking a view on it.
4. Whether the consent order should ultimately be set aside was reserved for the substantive appeal. If the order were set aside, the appellate court could consider determining the wife’s financial claims at the same hearing, although the judge expressly left open the possibility of further disclosure or remission for a fresh hearing before a district judge.

The judgment itself concerns an application for permission to appeal from a consent order made by District Judge Alderson on 4 July 2014. Permission was granted, including permission to appeal out of time. The substantive appeal was directed to be listed for a two-day hearing.