Cummings v Fawn [2023] EWHC 830 (Fam)14 April 2023

Published: 19/04/2023 09:00

Mostyn J. Judgment on W’s appeal. W sought to argue that an agreement reached (and upheld by the court) should be negated or vitiated by undue influence or other oppressive conduct by the H, in addition to a number of grounds of appeal, including H’s non-disclosure and fairness of the agreement.

The parties reached a Xydhias agreement in February 2022 which was recorded in a signed draft consent order. A D81 was also completed and signed.

W repudiated the agreement and wrote to the judge asking for a hearing to determine whether the agreement was fair, claiming that it did not meet her needs. She later added an allegation that the H was guilty of material non-disclosure which should negate the agreement completely.

At the hearing, the judge held that the agreement was not negated by H’s non-disclosure, that it was fair and should be made an order of the court. The judge found that H had failed to disclose matters but that these were 'non-operative' and the W had knowledge of those assets when she entered into the agreement. W was ordered to pay a lump sum towards the H’s costs.

Mostyn J concludes that the judge’s decision was wrong in that she failed to make findings as to which of the W’s debts were likely to require repayment on balance of probabilities, the sum that the W would reasonably need for alternative accommodation and the sum which she could raise by way of mortgage. In addition, the H’s non-disclosure (of inherited assets of c.£4m) was fraudulent. Mostyn J makes clear that on applications to set aside consent orders, courts should not entertain arguments that the victim of fraudulent non-disclosure could have discovered the material facts and should:

‘apply stringently the principle that the consent order, and the underlying agreement, must be set aside unless non-discloser can show … that a reasonable person in the position of the victim of the deception would, if she had full knowledge of the facts, have reached the same agreement.’

Mostyn J allowed the appeal on two grounds and set aside all parts of the order not yet implemented. He remitted the W’s claims to be retried and reiterated that this would be a rehearing of all claims, per Goddard-Watts.

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