DH v RH (No 6) (Application to Set Aside) [2025] EWFC 175

Judgment date: 8 May 2025

https://caselaw.nationalarchives.gov.uk/ewfc/2025/175

MacDonald J. Ex-tempore judgment handed down almost 12 months after the final order had been made. W had made various applications following the final order, including to set aside the final order and to commit H, whilst H in response to W’s failure to comply had also made multiple applications.

Background

W had failed to comply with the final order dated 24 May 2024, as amended under the slip-rule on 3 June 2024. W applied for permission to appeal which the Court of Appeal dismissed but while dismissing the application suggested W may have a remedy to set aside the final order as a result of the court’s treatment of the tax issue.

The following applications were subsequently before MacDonald J on May 8:

1. W’s application to set aside the final order;
2. H’s application to rely on three statements of evidence relating to the transfer of properties;
3. H’s application to have the property transfer documents signed by the court pursuant to the final order (in the absence of W’s willingness to cooperate);
4. H’s application for pronouncement of Decree Absolute; and
5. W’s applications to commit the husband, to enforce maintenance payments under a previous order, and for maintenance pending suit.

Proceeding in W’s absence

The evening prior to the hearing W emailed the court to request an adjournment due to a severe mental health crisis in February 2025. MacDonald J considered the factors set out by Cobb J in Sanchez v Oboz [2015] EWHC 235 (Fam) and concluded the application to adjourn should be refused. The reasons for refusal included:

• W’s reasons for non-attendance related to a historic mental health crisis and no evidence was provided that she was unable to attend court;
• W had been in regular correspondence with the court and had issued further applications since the date of the psychiatrist’s letter;
• W had waived her right to attend as W’s application to adjourn, in the context of her longstanding conduct, the lateness of the application, and the fact all legitimate avenues of disputing the final order had been exhausted by W, was simply a further attempt to frustrate the implementation of the final order; and
• H would be caused manifest prejudice by any further delay.

W’s application to set aside

The grounds for W’s application to set aside were considered by MacDonald J as detailed below:

1. W asserted that H had committed fraud and therefore a joint asset was excluded from the order but provided no evidence of this.
2. W’s assertion that H had committed perjuries of LLC tax returns and perjury of LLC annual reports was dismissed as no evidence was provided and the shares had been dealt with at the final hearing as non-matrimonial property.
3. W also alleged that the real property was undervalued. However, W had previously refused to cooperate with the joint instruction of valuers and failed to propose her own valuations forcing the court to rely on H’s ES2 at the final hearing.
4. W claimed that the order was unilaterally drafted by H and no drafts were shared with W but again provided no evidence of this. In any event MacDonald J concluded it is the court’s responsibility to check orders are an accurate reflection of the decision made.
5. Lastly, W asserted that the court did not properly consider the tax consequences for W. However, W had repeatedly failed to comply with orders to provide tax information so at the final hearing the court considered the tax issues on the basis of the evidence available to it. It was not now open to W to say the court was mistaken when she failed to provide any tax information regarding her case.

For the above reasons MacDonald J concluded none of the grounds under which a final order may be set aside as set out in L v L [2006] EWHC 956 (Fam) were met, and W’s application was therefore set aside.

Husband’s applications

At the final hearing the court had already anticipated that W might not cooperate and included provision in the final order that the non-defaulting party could apply on paper to the court to sign the relevant documents. MacDonald J therefore granted H permission to rely on further statements to assist the court in understanding the documents it had been invited to sign.

After considering the statements MacDonald J was satisfied that unless the court used its powers under s 39 of the Senior Courts Act 1981, W would continue to refuse to implement the final order, and as such it was appropriate for the court to sign the various documents.

Wife’s ancillary applications

W’s contempt application against the husband had no evidential basis and, given it was made in Court of Appeal proceedings, the court had no power to deal with it. All W’s other applications were dismissed as being totally without merit.

MacDonald J ordered that W was to bear the costs of each of the applications before the court and in the context of W’s litigation conduct this should be on an indemnity basis.