Dr Ebenezer Adodo v Geok Kheng Tan

Each party to financial remedy proceedings must give full and frank disclosure of all material financial resources. A final order may be set aside for material non-disclosure, misrepresentation or mistake where the true position would have led to a substantially different order. The party responsible for the resource cannot avoid that obligation by arguing that the other party could have discovered the truth. On appeal, the discretion to admit new evidence is guided by the Ladd v Marshall conditions but is not confined by them. Where the true financial position fundamentally undermines the basis of the original order, the order should be set aside and the matter reheard.

The husband appealed to the Court of Appeal from the dismissal by His Honour Judge Watkins of his appeal against a final financial remedy order made by District Judge Severn. The dispute concerned the wife’s Singapore Central Provident Fund account. The wife had stated, and the husband had accepted at the first hearing, that the funds would not be available until she reached 65. Later evidence showed that a substantial balance would become payable on sale of the Singapore property. The central issues were whether that evidence should be admitted on appeal and whether the resulting misrepresentation or mistake was material enough to justify setting aside the order.

1. Disposition. The appeal succeeded on Grounds 2 and 3. The District Judge’s order was set aside and the financial remedy application was remitted for rehearing. Permission was refused on Grounds 4 and 6, which were academic or insufficient on their own to justify interference.
2. Route and disclosure. An application to set aside a final financial remedy order may be made to the original court or by appeal: Sharland v Sharland [2016] AC 871, section 31F(6) of the Matrimonial and Family Proceedings Act 1984 and rule 9.9A(2) of the Family Procedure Rules 2010. The appeal route was appropriate because factual issues required determination. Each party owed a duty of full and frank disclosure under section 25 of the Matrimonial Causes Act 1973. The wife had the primary responsibility for accurately disclosing the CPF resource and could not avoid the consequences of inaccurate evidence by saying that the husband could have investigated the position.
3. New evidence. The appellate discretion under rule 52.21(2)(b) of the Civil Procedure Rules 1998 is guided by the Ladd v Marshall conditions but is not confined by them. The evidence could not be excluded merely because some information might have been available to the husband. It was not within his reasonable-diligence obligation in circumstances where the wife had misrepresented her own financial resource. The evidence was credible, would probably have had an important influence on the result, and was required in the interests of justice.
4. Materiality. The relevant question was whether the true position would have led to a substantially different order. The District Judge had treated the wife as having only £140,000 available, whereas the true position suggested resources of approximately £465,000 on a sale of the Singapore property. This directly affected the critical questions of whether the available assets and borrowing could meet the parties’ needs and how much the wife could raise to buy out the husband. The original reasoning and order were therefore fundamentally undermined.
5. Unresolved issue. The court did not decide the broader question of who bears the burden of proving materiality in cases of innocent or negligent misrepresentation. It observed that there may be an argument for placing that burden on the party who gave the inaccurate evidence.

1. Court of Appeal (Civil Division): The appeal was allowed on Grounds 2 and 3, the District Judge’s order was set aside, and the financial remedy application was remitted for rehearing. Permission was refused on Grounds 4 and 6. [2024] EWCA Civ 1288
2. Family Court at Nottingham: His Honour Judge Watkins dismissed the husband’s appeal from the final financial remedy order made by District Judge Severn.