HP v AP [2023] EWFC 4931 March 2023

Published: 19/04/2023 09:00


HHJ Willans. Application to set aside a consent order on the basis that the H had failed to refer to two historic loans which were secured against a property in his sole legal name, but his father owned 100% of the beneficial interest. W argued that H deliberately failed to disclose the loans as they undercut the suggested logic surrounding the transfer of the legal title to H. W argued that the non-disclosure was material and invalidated the basis of the agreement reached. Had there been full disclosure she would not have entered into the agreement and the outcome would have been different. H accepted that loans were not referenced within the 2017 proceedings but argued that this had no material relevance and did not amount to a failure to provide full and frank disclosure.

Application dismissed. The loan documentation did not prove a case of material non-disclosure, such that they proved hidden assets or confirmed the fact that a party had misled the court at the time of the agreement. They also did not materially shift the territory on which the dispute sat. Rather, the documents provided an evidential base for W to further promote the argument that she was making within the 2017 proceedings. The circumstances were distinguished with Kingdon v Kingdon [2010] EWCA Civ 1251 or Goddard-Watts.

There was no duty on H to provide disclosure of a historic loan taken out over 20 years previously and settled many years before the litigation, and it was doubtful if the court would have allowed this if asked to do so. Importantly, 'there is a duty on the court to manage proceedings and limit disclosure to that which is required'; [29]. The judge struggled to see how the historic loan documentation would have met this test.

Undue influence was raised by W but not considered due to the absence of proper case management of the same prior to the hearing. In any event, the argument would have faced real challenges as W was fully represented in the negotiations. The parties had also been out of contact for 3 years prior to settlement such that it was difficult to understand how any prior coercion could have remained operative at the time of negotiations.

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