TM v AM [2023] EWFC 2478 November 2023

Published: 18/01/2024 16:09

DJ Dinan-Hayward. H’s application to set aside a consent order entered into on 18 November 2021. The parties had a long marriage with two adult children. Under the order H was to receive the family home subject to mortgage which reflected 100% of the matrimonial assets. W had other assets which were non-matrimonial in nature (inheritance).

The main issue for determination was whether W had concealed the ownership of a valuable diamond (£2m) and thus obtained H’s consent to the order through material non-disclosure/fraud. W denied any knowledge or association with the diamond.

H said his knowledge of the diamond came from an anonymous tip off in November 2021 (i.e. before the consent order was entered into). H corrected this assertion in his oral evidence and said that it was not anonymous, but he wished to keep the informant’s identity confidential.

H made applications for disclosure against an auctioneer (A), who had been commissioned by the vendor to sell the diamond. A confirmed that neither the wife nor her mother matched the description of the vendor, nor was a party with either surname involved in the contract.

Further third-party disclosure orders made against A were not properly complied with and H sought a witness summons for A to be cross examined.

The judge described A’s evidence as ‘colourful’ but reminded herself that demeanour should hold little weight. A stated that he made up a story about buying the diamond at a car boot sale in order to generate interest in his failing business post pandemic. This had been reported in the press and H had read this. In fact, the diamond came from Antwerp. If A was successful in selling the diamond, this would likely lead to further commissions from the owners and such commissions would save the business from financial trouble. The owners of the diamond became aware of the ‘car boot sale’ story and demanded that the diamond be returned to them. A was not an impressive witness but the judge saw a video of the diamond being delivered to A’s Hatton Garden office from Antwerp which enabled her to find that the diamond had arrived from Antwerp and been sent back there in line with A’s evidence.

The judge found W to be a straightforward and credible witness. H was found to be ‘unfailing in his belief that the diamond is W’s’ but that there was not a shred of evidence to support his case. H was found unable to consider the position objectively and in light of the (lack) of evidence. The judge expressed surprise that H did not reconsider his case after hearing from A.

The judge found that the consent order was generous to H, that H delayed in making an application to set aside if he had in fact received the ‘tip off’ in November 2021. The judge did not find material non-disclosure on the part of W and accordingly refused to set aside the consent order.

The costs decision was not included within the published judgment.

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