Roberts J (‘the judge’) dealt with an application to set aside a consent order made in financial remedy proceedings, and a responding application to strike out or summarily dismiss H’s application. The parties were both independently wealthy and had a short, childless marriage prior to their divorce. H was a successful venture capitalist, and W was an entrepreneur. Several years prior to their relationship, W provided start-up capital from her own resources to incorporate B Ltd, a company involved in the development of tracking and surveillance technology hardware. Much of the litigation spanning c.10 years regarded B Ltd. H was one of the external investors who put money into B Ltd in about 2005. By the time the parties embarked on their relationship H had acquired 19,738 shares. The value of the parties’ respective shareholdings in B Ltd was one of the central issues in the final hearing that was to take place in 2012.

In the first round of litigation in 2012 a consent order was agreed whereby H would relinquish his shares in B Ltd and included in the consent order was an ‘anti-embarrassment’ clause. In return, W sacrificed further exploration of disclosure and abandonment of any claim to share in what she contended was a potentially significant marital acquest. After discovering a well-known hedge fund investor had subsequently taken a significant stake in B Ltd, H issued his first set-aside application. However, negotiations during court time did not lead to settlement and the case was relisted.

In the second round of litigation in 2015, having found that the potential undervalue of both parties’ shares in B Ltd was a fundamental obstacle to the integrity of the 2012 consent order, it was set aside and due to return to court for a rehearing of the outstanding financial remedies claims. However, by the time of the rehearing in 2016, it was W’s case that she had sold her remaining shares (162,000 original founders shares) in B Ltd to an investment company called MP in order to raise funds to meet pressing debts. Thus, the only remaining shares which apparently concerned the court were the 19,738 formerly owned by H. It was H’s suggestion that W’s transfer of her own shareholding in B Ltd to MP was not a genuine transaction and this meant that the first days of the hearing were contentious, with disputes about the valuation of shares, and reports to the judge from W’s counsel that H had threatened W with further litigation including ‘perjury or private prosecutions’ because H ‘did not want to let this drop’ (as per the transcript of the November 2016 hearing). Eventually discussions outside of court led to the resolution of the entire case, reaching full agreement on a clean break basis. The deal that was struck included:

• W to pay H a lump sum of £450k in full and final satisfaction of all and any claims which either had against the other including any outstanding costs liability.
• As part of the agreement reflected in the court order, both parties gave formal undertakings to the court to not bring further proceedings in any capacity.

In December 2021, H issued an application to set aside the 2016 consent order, pursuant to s 31F(6) of the Matrimonial and Family Proceedings Act 1984 and FPR 9.9A. H sought a rehearing of the financial remedy claims on the basis that, in relation to the sale of her shares in B Ltd, W had fraudulently misrepresented the facts and/or had deliberately failed to disclose the true facts to H and the court. W issued a strike-out application in response. The basis of the relief sought was that H’s renewed set aside application was an abuse of process. It was H’s central allegation that there was no arm’s length sale of W’s shares in B Ltd to a US entity called ‘MP’. Instead, it is alleged that she transferred her shares to a Guernsey company called MP Limited which she controlled. It was said that this was part of a deliberate scheme to deceive H and the court. In response, it was W’s case in regard to her abuse of process argument, that the same issues which H sought to rely upon in support of his latest set aside application were all known and ventilated to one extent or another in 2016. Namely, the issue of whether the purchaser of H’s shares in B Ltd existed as a bona fide corporate entity was one of the central issues raised in the context of the previous round of litigation.

The judge found that the court was entitled to, pursuant to the wide discretion mandated by para 13.8 of FPR PD 9A, and positively encouraged to, through application of the overriding objective, conduct its enquiries and reach its conclusions within the context of ‘some form of abbreviated hearing following a provisional evaluation of the issues’ (per King LJ at [45] and [58] of Roocroft v Ball [2016] EWCA Civ 1009, [2017] 1 WLR 1137) a fortiori in circumstances where the very same allegations of non-disclosure have been already fully considered and tested in cross-examination at a previous hearing (per Lord Neuberger in Gohil v Gohil [2015] UKSC 61). The judge considered the principle established in Takhar v Gracefield Developments Ltd [2019] UKSC 13, that there is no rule per se that a lack of diligence in a first, or previous, claim leads to a ‘blanket ban’ on bringing a subsequent claim to set aside an order or judgment which the claimant can properly allege was obtained by fraud. But, in applying this principle together with the application of a broad merits-based judgment to all of the facts, the judge reached a clear conclusion that H’s allegations should have been pursued in November 2016. There was nothing new in the evidence H had produced since 2016 that persuaded the judge that a further re-opening of his claims was either fair or justified. There was a tension between two important principles of public policy: the long established view that ‘fraud unravels all’, and the need to ensure finality through recognition that there must come an end to litigation. In this case, the judge concluded that finality was needed in these proceedings due to the deliberate decision by both parties in November 2016 to abandon their respective arguments in relation to non-disclosure and draw under these matrimonial proceedings a clear bright line of finality. In terms of proportionality and overall fairness in the context of the court’s obligation to conduct a s 25 enquiry, the judge was persuaded that H’s case proceeded on the basis of a fundamental flaw in relation to the likely value to him of his shares in B Ltd and the relitigating of the case was disproportionate. Using the powers set out under PD 9A para 13.8, or FPR 4.4(1)(a) and (b) (both achieve similar results), the judge was persuaded that it was appropriate to strike out the current set-aside application.