Noah Silberschmidt v Nanette Richards

An application to set aside a financial remedy consent order for fraudulent non-disclosure must be made with reasonable promptness. There is no fixed limitation period or automatic one-year bar. Whether delay is fatal is a fact-sensitive assessment of all relevant circumstances, including the applicant’s actual understanding, what could reasonably have been discovered, the nature and effect of the fraud, the period of delay, prejudice to the parties or third parties, the fairness of the hearing and the administration of justice. The assessment may include both subjective and objective factors and must cover the whole relevant period. The introduction of Family Procedure Rules 2010 r 9.9A and the decision in Sharland v Sharland did not remove the promptness requirement.

The husband appealed against the decision of Recorder Chandler KC, made in the Central Family Court on 14 February 2025, setting aside a final consent order made on 19 November 2020 under the Matrimonial Causes Act 1973. The order had been reached in financial remedy proceedings after a private financial dispute resolution hearing.

The Recorder found that the husband had deliberately and fraudulently failed to disclose material information concerning company fundraising, remuneration and a share sale. The appeal was limited to whether the wife’s application was defeated by delay and whether the Recorder had applied the correct approach to the date from which delay should be assessed. The central issue was how reasonable promptness should be determined where fraudulent non-disclosure is discovered after a consent order.

1. Appeal dismissed. The Recorder’s order setting aside the consent order was upheld.
2. Under Family Procedure Rules 2010 r 9.9A, fraudulent non-disclosure remains an established ground for setting aside a financial remedy consent order. The rule provides no fixed time limit, but the procedural framework requires an application to be made as soon as it becomes apparent that it is necessary or desirable. The rule clarified procedure and did not alter the substantive law.
3. Applications to set aside on established grounds must be made with reasonable promptness. Whether delay is unreasonable is fact-sensitive. There is no fixed period which is automatically fatal, and the authorities did not establish a binding one-year backstop.
4. The court must assess all relevant facts and circumstances over the whole period, including the circumstances surrounding the original order, the nature, extent and effect of the fraud, information available to the applicant, what the applicant knew or could have known with reasonable enquiry, the applicant’s circumstances, the length of delay, prejudice to the respondent or third parties, the fairness of the hearing and the administration of justice. Both subjective and objective matters may be relevant.
5. The test was not the statutory test under Limitation Act 1980 s 32(1). Gemalto Holding BV v Infineon Technologies did not justify importing a distinct reasonable-diligence limitation test into the common-law requirement of reasonable promptness. Sharland v Sharland concerned the substantive effect of fraud, not delay, and did not remove the promptness requirement.
6. The Recorder erred in treating April 2023 as the effective starting date and misstated the identity of the solicitors consulted in July 2021. Nevertheless, reading his judgment as a whole, he considered the alternative period from July 2021 and reached a conclusion open to him. The errors were immaterial, particularly since the wife had acted reasonably in obtaining matrimonial advice and there was no evidence of prejudice caused by the delay.
7. A new ground based on a separate later application could not properly be raised for the first time on appeal where it had not been pursued below and might have required further factual investigation.
8. The judgment was published without anonymisation. The open justice principle prevailed after a fact-sensitive balancing exercise under Articles 8 and 10, there being no sufficient risk of harm, no minor child involved in the proceedings and a substantial public interest in the treatment of fraudulent non-disclosure.

• High Court (Family Division): appeal against the decision of Recorder Chandler KC in the Central Family Court dated 14 February 2025; appeal dismissed and the order setting aside the consent order upheld.
• President of the Family Division: permission to appeal refused on the papers on 13 March 2025. Permission was later granted on two grounds at an oral hearing on 10 June 2025.