Silberschmidt v Richards [2025] EWHC 2841 (Fam)

Judgment date: 31 October 2025

https://caselaw.nationalarchives.gov.uk/ewhc/fam/2025/2841

Poole J. Husband’s appeal against setting aside of final consent order for fraudulent non-disclosure dismissed; wife’s delay not determinative.

The issue raised by this appeal was whether delay in bringing an otherwise meritorious application to set aside a final consent order for fraudulent non-disclosure can be fatal to the application and, if so, how the court determines whether such delay is fatal.

Background

In November 2020, the terms of the parties’ final consent order were approved and decree absolute was granted on 11 December 2020.

The appellant husband (Silberschmidt) had founded a company, Silverstream, in 2010.

In July 2021, the respondent wife (Richards) received documents (Silverstream’s 2020 Directors’ Report and an email from the husband to Silverstream investors) from an unidentified informant. The wife consulted her divorce solicitors, Katz and Partners, in July 2021 and different solicitors, the Khan Partnership, in November 2021 and no further action was taken.

On 4 April 2023, the parties met at a restaurant, during which meeting they discussed Silverstream and the husband commented that the wife had been ‘too trusting’ in the divorce. Thereafter, having consulted solicitors, the wife sent a letter before action on 12 June 2023. As agreed by the parties, this marks the point that should be treated as the date of the application to set aside.

Judgment under appeal

The judge (Recorder Chandler KC) made findings of fact against the husband which included deliberate non-disclosure, misrepresentation, and conscious concealment of material facts regarding the value of his business and additional personal income, with the objective of preventing the wife raising the issue.

The husband submitted that the wife had forfeited any right to challenge the final order because of her delay in bringing the application.

The judge rejected the husband’s case that the wife’s application should be dismissed for undue delay, and held (at [107] in his judgment) that ‘[i]t was only at the restaurant meeting … that the wife realised that the husband may have been guilty of fraudulent non-disclosure’. The judge held that the wife then acted promptly by approaching solicitors in April 2023, having not realised the true significance of the documents prior to that point. He was therefore satisfied that the effective date for time starting was April 2023 not July 2021.

Permission to appeal that judgment was granted only on grounds alleging legal error in the judge’s approach to delay, date of knowledge, and finality. Permission to appeal findings of fact was refused and Poole J proceeded on the basis of the findings made.

Analysis

Per FPR 9.9A, there is no time limit delineated for making an application to set aside a financial remedy order, but under FPR PD 18A, para 4.6, the application must be made as soon as it becomes apparent that it is necessary or desirable to make it.

Therefore, Poole J assessed whether case law establishes any requirement to avoid delay in making such applications.

The cases of Barder, Shaw, Rose, Burns, L v L, and Den Heyer v Newby remain strong authority for the following principles, at [47]:

‘(1) Applications to set aside a consent order made on any of the established grounds, including fraudulent non-disclosure, must be made with reasonable promptness. (2) What amounts to reasonable promptness will depend on the facts and circumstances of each case.’

The judge (Recorder Chandler KC) found that time ran from ‘when the penny dropped’ when the parties met at a restaurant in 2023. The husband contended that the judge failed to apply an objective test to the question of knowledge and therefore found the incorrect starting point for the period of delay (submitting that it should have started from July 2021 when the wife received the documents). Poole J asserted that, per Shaw v Shaw [2002] EWCA Civ 1298, the correct approach is neither purely subjective nor purely objective and that the court will consider all the facts and circumstances of the case. On that basis, ‘the court should ask both what the applicant knew and what her circumstances were, as well as what she ought to have known with reasonable enquiry, and what she reasonably ought to have done’ (at [59]).

Conclusion

Poole J dismissed the appeal, finding that delay will not definitively prove fatal to an application to set aside and that the court must weigh such delay against all other factors, including the public policy ground of the finality principle. On the facts of this case, the husband could not rely on procedural rules to avoid the consequences of his fraudulent conduct.

The applicable legal principles were summarised as follows (at [80]):

1. An applicant seeking to set aside a financial remedy consent order on the ground of fraudulent non-disclosure ‘must act with reasonable promptness in making the application’. The court must determine whether a lack of reasonable promptness should defeat the application.
2. In its assessment of whether an applicant has acted with reasonable promptness, the Court must consider all the relevant facts and circumstances in the case.
3. The relevant facts and circumstances include a consideration of subjective and objective factors, which include:
   i. the nature, extent and effect of the fraudulent conduct;
   ii. consideration of what information was available to the applicant (what they knew or could have known with reasonable diligence);
   iii. the period of delay; and
   iv. the impact of delay on the other party, on the fairness of any hearing of the application, and on the administration of justice.
4. The relevant facts and circumstances include those over the whole relevant period before and after information came to light.

The court also demonstrated its reluctance to interfere with judicial decisions made using reasonable discretion. Poole J opined (at [82]) that:

‘Not every Judge would have assessed the wife as acting with reasonable promptness given that in July 2021 she had in her possession documentary evidence which she relied upon to allege fraudulent non-disclosure in June 2023, but the Judge applied the correct legal test, surveyed the facts and circumstances of the case, and reached a conclusion that was open to him.’

Anonymisation

The issue of anonymisation was raised at the hearing, with the husband seeking anonymisation of the published judgment.

Poole J considered PD 30B, authorities on anonymisation (Re S (A Child) (Identification: Restriction on Publication) [2004] UKHL 47 and PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126) and the parties’ Article 8 and Article 10 rights. He found ‘no good reason to depart from the principle of open justice’ and held that the judgment would be published in non-anonymised form (at [94]).