Assoun v Assoun [No 2]

An appellate court will refuse to re-open an appeal where the alleged factual error is not established and no new material supports a different conclusion. Where the court has scrutinised the relevant financial evidence and afforded the party a fair opportunity for full disclosure and response, alleged procedural unfairness in a Hadkinson application is remedied or shown not to affect the result.

The husband had appealed against a Hadkinson order made by His Honour Judge Brasse in the Central Family Court. The Court of Appeal had dismissed that appeal in Assoun v Assoun (No 1) (Hadkinson Application) [2017] EWCA Civ 21.

Before judgment was entered, the husband applied to re-open the appeal, amend his grounds and adduce further evidence. He alleged factual mistakes, erroneous analysis of the Hadkinson principles and financial disclosure, misconstruction of an order of Gloster LJ, and breach of natural justice. The issue was whether any of those matters justified re-opening the appeal.

1. Application refused. The court was not satisfied that any basis existed to re-open the appeal, amend the grounds, or admit further evidence. No further hearing of either the substantive appeal or the application was necessary.

2. The alleged factual error was not made out. The factual conclusions in the Hadkinson proceedings were founded on conclusions reached in the earlier substantive proceedings, which had not been successfully appealed. The materials were properly available to Judge Brasse and had also been placed before the Court of Appeal.

3. The husband’s contention concerning the allocation of payments totalling $324,000 did not justify interference. The Texas court had determined allocation for its enforcement purposes; the husband had not made that decision an issue on the appeal and had disclosed it only after the hearing. The court was therefore not mistaken as to the facts.

4. Without a factual error, the premise for a further analysis of Judge Brasse’s application of the Hadkinson principles failed. Complaints about the Court of Appeal’s own analysis of financial disclosure and its construction of Gloster LJ’s order would themselves amount to appellate challenges to this court. No new material supported a different conclusion.

5. The financial evidence filed under Gloster LJ’s order enabled the court to give the husband’s case the scrutiny required for the Hadkinson application. The hearing afforded an opportunity for full and frank disclosure and for response to disputed issues. Any criticism of the first-instance process had therefore been addressed, and Judge Brasse was not wrong.

• Court of Appeal (Civil Division): dismissed the husband’s appeal against the Hadkinson order in Assoun v Assoun (No 1) (Hadkinson Application) [2017] EWCA Civ 21; it then refused his pre-entry application to re-open that appeal.

• Central Family Court: His Honour Judge Brasse made the Hadkinson order on 16 November 2015.