Mr Justice Francis. Application by W to set aside consent order dated March 2018 on basis of H’s non-disclosure.

This was a long marriage with three teenage/young adult children at the time of separation. The Trustees of two trusts, the LK (No 2 Settlement) – which held the business – and the House Trust were the third and second respondents and although represented did not play a large role.

On day 7 of a final hearing, the parties reached an agreement that provided that W was to receive:

1. Property worth c. £4.75m which would free of any charge within 2 years.
2. Proceeds of sale of FMH.
3. Lump sum of £1m in 2020, £875,000 in 2021 and balance (amount unclear) in 2022.
4. PPs, which were to decrease as the lump sum was paid.
5. There was to be no variation of the LK (No 2 Settlement) but there was to be a variation of the House Trust.

W had originally sought £5.48m for housing and that H’s business be sold and she receive 50%. W’s expert valued 50% of the business at £46m, H’s expert valued 50% of the business at £15m. The agreement therefore represented a significant departure from W’s open position. H’s liquidity was a significant issue during the hearing and the reason the agreement was structured in this way. Whilst not a decision of the judge as he had not heard all of the evidence, he indicated when approving the order that this was ‘very much along the lines’ of an appropriate resolution. This agreement was fully implemented.

The business was engaged in complex overseas litigation that had not yet been resolved. The agreement was not contingent on the result of the overseas litigation. Nevertheless, the litigation was resolved in favour of the business shortly after the agreement was reached. The value of this outcome was c. £10m.

W applied to set aside the order in August 2019. A four-day hearing took place in September 2021. W’s case was that H had undisclosed resources as follows:

1. H had claimed he was limited to drawing £1m from his Directors’ Loan Account. He then drew £9.9m over a 22-month period.
2. H did not disclose his ability to borrow £3m from his brother.
3. At the time the agreement was reached, H had made an offer to purchase a property for £5m which he did not disclose.

H argued that W was fully aware that he achieved liquidity ‘through relationships with all manner of lenders, including his brother’ and that he was an ‘experienced wheeler dealer’. H said there was no undisclosed asset or intention of any kind and that W had employed a scattergun approach in the hope something would stick. The liquidity that had arisen was a mixture of good fortune and H’s commercial acumen and that had been foreseen by the expert valuing the business for W. This liquidity had enabled him to comply with the consent order. H’s counsel described W’s application as a classic case of buyer’s remorse.

Due to the repeated delay, the judge informed the parties of his decision in December 2022 (with reasons to follow).

Held, setting aside the consent order but warning that starting the proceedings afresh did not necessarily mean that W would improve her award, particularly given events since 2018, such as the pandemic and war in Ukraine:

The deliberate concealment of the purchase of a new property during the Final Hearing alone was enough to justify a set aside given the length at which the issues of liquidity and how the husband would meet his own housing needs were addressed in the original hearing. H had emphasised how he would struggle to raise funds. H had behaved dishonestly and consequently W did not have to prove that the non-disclosure was material: Sharland v Sharland [2015] UKSC 60 and Gohill v Gohill [2015] UKSC 61. The judge also found that H knew more about the overseas litigation, which was of a different nature and further progressed than he represented during the original hearing.