Gohil v Gohil

The principles governing fresh evidence on appeal do not apply to an initial application to set aside a financial order for fraudulent non-disclosure. The application is the spouse’s first opportunity to prove the alleged non-disclosure.

Each spouse owes the court a duty of full and frank disclosure. A consent recital cannot release a spouse from that duty. Intentional non-disclosure is presumed material unless the non-disclosing spouse proves that proper disclosure would have produced the same order. For accidental or negligent non-disclosure, the applicant must prove that proper disclosure would probably have produced a substantially different order.

An appellate court may uphold a decision reached partly through inadmissible evidence where the admissible record safely requires the same conclusion and doing so creates no risk of injustice.

In 2004 the husband and wife settled the wife’s financial claims following their divorce. Although the consent order recorded the wife’s belief that the husband had not fully disclosed his resources, it dismissed her remaining capital claims.

The wife later applied to set aside that dismissal for fraudulent non-disclosure. After an eight-day hearing, Moylan J granted the application in Gohil v Gohil [2012] EWHC 2897 (Fam). Some evidence derived from the husband’s criminal proceedings was subsequently held inadmissible under the Crime (International Co-operation) Act 2003.

The Court of Appeal allowed the husband’s appeal and dismissed the application: Gohil v Gohil (No 2) [2014] EWCA Civ 274, [2015] Fam 89. It held that the wife could rely only on fresh evidence satisfying the principles in Ladd v Marshall. The central issues were whether those principles applied and whether Moylan J’s order could stand on the admissible evidence alone.

1. Appeal allowed unanimously. The principles in Ladd v Marshall [1954] 1 WLR 1489 have no relevance to an initial application to set aside a financial order for fraudulent non-disclosure. They regulate further evidence tendered on appeal after a trial. The hearing before Moylan J was the wife’s first opportunity to prove her allegation. The Court of Appeal therefore erred by excluding evidence because it could have been obtained with reasonable diligence in 2004.

2. A spouse owes the court a duty of full and frank disclosure. Without it, the court cannot properly perform its duty under section 25(2) of the Matrimonial Causes Act 1973. A recital recording that the other spouse suspected non-disclosure but settled to obtain finality cannot release the non-disclosing spouse from that duty. Recital 14 therefore had no legal effect.

3. The correct inquiry was whether the husband had made material non-disclosure under Livesey (formerly Jenkins) v Jenkins [1985] AC 424. Per Lord Neuberger, with Lord Clarke, Lord Sumption and Lord Reed agreeing, accidental or negligent non-disclosure requires the applicant to show that proper disclosure would probably have produced a substantially different order. Intentional non-disclosure is presumed material unless the non-disclosing party proves that the same order would have been made or agreed.

4. Evidence obtained through requests under the Crime (International Co-operation) Act 2003 was inadmissible. Nevertheless, the admissible evidence concerning the husband’s father, the Odessa accounts, later property purchases and the husband’s inconsistent explanations established material non-disclosure. His obfuscation about matters within his knowledge also justified adverse inferences concerning assets existing in 2004.

5. Per Lord Neuberger and the three Justices agreeing with him, an appellate court can avoid a rehearing after inadmissible evidence has been used if that creates no unavoidable injustice. It is sufficient that the trial judge would have reached the same conclusion without the evidence, that the appellate court can safely reach that conclusion on the admissible record, or that a rehearing could realistically produce only that conclusion. All three alternatives were satisfied.

6. Although jurisdiction was not in issue, the court observed that disputed non-disclosure should ordinarily be investigated at the level which made the financial order. It endorsed procedural provision enabling the High Court and family court to set aside their own financial orders where no judicial error is alleged.

7. Moylan J’s order of 25 September 2012 was reinstated. The wife’s claim for further capital provision was to proceed before him. Property representing criminal proceeds could fall within the court’s jurisdiction, but public policy would ordinarily require the court to decline to transfer it to a spouse.

1. United Kingdom Supreme Court: The wife’s appeal was allowed unanimously. The court set aside the Court of Appeal’s order, reinstated Moylan J’s order and directed that the wife’s further capital claim should proceed: Gohil v Gohil [2015] UKSC 61.
2. Court of Appeal: The husband’s appeal was allowed, Moylan J’s order was set aside and the wife’s application was dismissed: Gohil v Gohil (No 2) [2014] EWCA Civ 274, [2015] Fam 89.
3. Court of Appeal: In an interlocutory appeal by the Crown Prosecution Service, the court set aside Moylan J’s disclosure order and held that material obtained under the Crime (International Co-operation) Act 2003 was not admissible for an unauthorised purpose: Gohil v Gohil [2012] EWCA Civ 1550, [2013] Fam 276.
4. High Court: After an eight-day fact-finding hearing, Moylan J found material non-disclosure and set aside the part of the 2004 consent order dismissing the wife’s remaining capital claims: Gohil v Gohil [2012] EWHC 2897 (Fam).