Bokor-Ingram v Bokor-Ingram
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe |
| Judgment Date | 04 March 2009 |
| Neutral Citation | [2009] EWCA Civ 412 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: B4/2008/1951 B4/2008/1951(B) |
| Date | 04 March 2009 |
[2009] EWCA Civ 412
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE CHARLES)
Before: Lord Justice Thorpe
Lord Justice Sedley
Lord Justice Wall
Case Nos: B4/2008/1951
B4/2008/1951(A)
B4/2008/1951(B)
Mr M Pointer QC and Mr N Yates (instructed by Messrs Hughes Fowler Carruther) appeared on behalf of the Appellant.
Mr J Cohen QC (instructed by Messrs Shentons) appeared on behalf of the Respondent.
Lord Justice Thorpe:
In a judgement handed down on 23 June 2008, Charles J dismissed an application brought by the wife to set aside a consent order reached on 20 July 2006 at an FDR appointment determining her claims for ancillary relief for herself and the two children of the family.
Charles J dismissed the wife's application and refused her permission to appeal. Her application for permission was renewed to this court by a Notice of Appeal dated 7 August 2008. Wilson LJ granted permission to appeal on 30 October 2008, and that appeal was listed for hearing today and tomorrow, 4 and 5 March 2009.
At the outset Mr Martin Pointer QC and Mr Jonathan Cohen QC, representing respectively the wife and the husband, informed the court that the parties had reached a comprehensive agreement to settle not only the appeal but also pending or prospective applications for the variation of the order of 20 July 2006.
The agreement reached between the parties invited the court to allow the appeal, set aside the order of 20 July 2006, and to make revised orders on the wife's applications.
A short disposal might have followed but for our concern that the judgment below had already been reported at [2008] 2 FCR 527 and at [2009] 1 FLR 2001 and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.
Accordingly we decided to state shortly why we had reached a preliminary conclusion that the appeal, had it not been compromised, would in any event have been allowed.
In expressing these tentative conclusions we enter the obvious caveat that we did not hear full argument elaborating the skeleton argument submitted by counsel. Obviously the course that we proposed accepted the strength of many of the criticisms advanced by Mr Pointer in his skeleton argument. We therefore gave Mr Cohen full opportunity to caution us as to areas where we should fear to tread.
The case upon which the wife's application to set aside was advanced relied essentially on one fundamental ground. Approximately 10 days after the making of the consent order, the husband resigned from his employment with AA and signed a contract of employment with BB. Under the terms of his employment with BB he significantly increased the level of his remuneration which was further guaranteed for the years 2006 and 2007. One 20 July, although he had not received an offer from BB, negotiations were at an advanced stage. Indeed, a draft of the contract later to be signed on 31 July was in his hands on the evening of the 20 th, only a few hours after the making of the consent order.
Thus the wife's application, promptly brought, held high prospects of success. Plainly, the husband had not disclosed and should have disclosed his prospects of a successful move to higher remuneration in the immediate future. Plainly, had the disclosure been made the overwhelming probability is that both the wife's advisors and the judge would have postponed the appointment to await developments. There was of course a risk that the negotiations would not mature into a contract of employment, although that risk was probably small given the advanced stage of the detailed negotiations.
Charles J heard the husband's oral evidence, and reached clear findings of fact and clear conclusions as to the husband's credibility. Of course those findings and conclusions are not impugned. Against the husband he found that on 20 July “a formal offer was a real and imminent possibility”. He also found that the husband “must have appreciated that the true position relating to the negotiations was relevant to the question of what he would or might be earning and was therefore something the wife would or might be interested to know”.
However the judge was satisfied that the information that the husband consciously suppressed was not information that he thought he had a duty to disclose. We would only...
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