Brack v Brack

A judgment will not ordinarily be reopened to admit evidence of alleged fraud where the applicant deliberately decided not to investigate or rely on that evidence at the original hearing. The exception recognised in Takhar v Gracefield Developments does not assist a party who possessed the material, advanced the relevant factual case, and consciously chose not to deploy it. Independently, substantial delay may justify refusing admission of the material in the exercise of the court’s discretion. A strike-out application should be heard first where it is properly arguable that it will dispose of the substantive application without evidence.

The wife sought to set aside the judge’s 2016 finding that no fraud, misrepresentation or undue pressure had vitiated three prenuptial agreements. She relied on two emails exchanged during the financial remedy proceedings in 2015 and an earlier signed statement, contending that they supported her allegation that the husband had made representations about her financial position on divorce.

The husband applied to strike out the set-aside application as an abuse of process or because of delay. The wife had previously sought permission from the Court of Appeal to adduce the same emails as fresh evidence, but permission had been refused in [2018] EWCA Civ 2862. The central issue was whether the wife could reopen the 2016 finding despite having possessed, and deliberately not relied upon, the material.

1. Strike out. The court was entitled to determine the husband’s strike-out application first because there was an arguable case that it would dispose of the set-aside application without the need for evidence.
2. Distinction from The Coca-Cola Company v Ketteridge. The principle that a party may acquiesce by defending a claim on its merits instead of applying promptly to strike it out did not apply. The present litigation had effectively been on hold pending further consideration after the Court of Appeal’s decision, and there had been no comparable acquiescence by the husband.
3. Fresh evidence and alleged fraud. The court accepted the principle relied upon from Takhar v Gracefield Developments, including the exception where a deliberate decision was made not to investigate or rely on the material. Here, the wife possessed the emails before the 2016 hearing, had advanced the issue of alleged representations, and had omitted relevant passages from the signed statement ultimately relied upon. That omission represented a deliberate decision not to rely on the material.
4. The facts were materially different from Takhar v Gracefield Developments, where the claimant discovered after judgment that a signature had been forged and thereby obtained a fresh fraud cause of action. The wife’s case concerned evidence already available in the original proceedings.
5. Even if the court retained a discretion to admit the evidence, it would refuse admission because of the unexplained delay from its discovery in November 2016 until the application in December 2019 and the repeated opportunities to seek reopening or invoke the Barrell jurisdiction.
6. Summers v Fairclough Homes Ltd confirmed that a statement of case may be struck out at any stage, subject to justice and proportionality and the exceptional nature of the power. That decision did not alter the result here.
7. The wife’s application to set aside the 2016 finding was struck out.

• High Court (Family Division): In the earlier financial remedy proceedings, the court made findings on 22 December 2016, reported at [2016] EWHC 3431.
• Court of Appeal: The appeal was determined in December 2018. The court held that there was no valid maintenance prorogation clause and that the wife’s sharing claim had not inevitably been lost, but refused permission to adduce the emails as fresh evidence: [2018] EWCA Civ 2862.
• High Court (Family Division): The present court struck out the wife’s subsequent application to set aside the 2016 finding.