Gohil v Gohil
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Wilson |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] UKSC 61 |
| Date | 14 October 2015 |
| Court | Supreme Court |
[2015] UKSC 61
Lord Neuberger, President
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Sumption
Lord Reed
Lord Hodge
Appellant (Gohil)
Sally Harrison QC Samantha Hillas
(Instructed by Irwin Mitchell LLP)
Respondent (Gohil)
James Turner QC George Gordon
(Instructed by Duncan Lewis Solicitors)
Heard on 8, 9 and 10 June 2015
(with whom Lord Neuberger, Lady Hale, Lord Clarke, Lord Sumption, Lord Reed and Lord Hodge agree)
Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse's application to set aside a financial order in divorce proceedings on the ground of a fraudulent nondisclosure of resources on the part of the other spouse? The trial judge cast his judgment on two alternative grounds and in his analysis of one ground he identified a particular relevance for the principles propounded in the Ladd case. It is now accepted that, in so holding, he was wrong and that the Court of Appeal was right so to declare. But, when so declaring, the Court of Appeal purported to identify a different relevance for the principles propounded in the Ladd case to the determination of an application to set aside. The main point of general importance which generates this further appeal is whether the Court of Appeal was right to hold that those principles have any relevance to such a determination.
Mrs Gohil (whom I will call "the wife" notwithstanding that she was divorced from Mr Gohil, "the husband", in 2004) appeals against an order of the Court of Appeal dated 13 March 2014. By a judgment delivered by McFarlane LJ, with which Arden and Pitchford LJJ agreed, the Court of Appeal then explained its decision to set aside an order made by Moylan J on 25 September 2012, [2012] EWHC 2897 (Fam); the judgments of the Court of Appeal are numbered [2014] EWCA Civ 274 and it is clear that a decision was made to report them at the highest level of authority, namely as Gohil v Gohil (No 2) [2015] Fam 89. The order of Moylan J had been to set aside part of a financial order which, by consent, Baron J had made against the husband in favour of the wife on 30 April 2004, namely the part by which she had dismissed all the wife's remaining claims against him for capital provision. Moylan J had proceeded to order that her claims be listed for further directions to be given in aid of their ultimate determination. The effect of the order of the Court of Appeal was therefore to prevent the wife from asking the court to revisit the level of capital provision made by the husband for her under the order dated 30 April 2004.
This court directed that the wife's appeal be heard at the same time as the appeal in Sharland v Sharland, [2015] UKSC 60, which also raised issues in relation to the determination of a spouse's application for a further hearing of her claims on the ground of the other's fraudulent non-disclosure of resources. Convenient though the conjoined hearing proved to be, it has nevertheless been considered preferable for the court's judgments on the two appeals to be given separately, albeit upon this same day.
The wife is now aged 51. The husband is now aged 50. They were married in 1990 and lived in a house in Chislehurst owned and also occupied by the husband's parents. The parties had three children, all now adult.
The husband was a solicitor and became a partner in a small firm in Mayfair, some of whose clients, often living overseas, had, by fair means or foul, become wealthy and sought the firm's assistance in protecting their wealth.
In 2002 the wife, with the children, moved out of the house in Chislehurst and she petitioned for divorce. In response to her financial claims the husband asserted that in effect all his ostensible wealth represented assets held by him on behalf of his clients. Shortly prior to 30 April 2004 he produced a balance sheet of what he alleged to be his personal assets which, when set against his liabilities, yielded a net deficit of £311,512.
The settlement of the wife's claims was achieved at a Financial Dispute Resolution ("FDR") meeting conducted by Baron J on 30 April 2004. There was a recital ["recital 14"] to the order then made, namely that "the [wife] believes that the [husband] has not provided full and frank disclosure of his financial circumstances (although this is disputed by the [husband]), but is compromising her claims in the terms set out in this consent order despite this, in order to achieve finality".
The order dated 30 April 2004 provided that the husband should make to the wife, in final settlement of her capital claims, a lump sum payment of £270,000, payable as to £100,000 by 30 June 2004 and as to the balance immediately prior to the wife's exchange of contracts for the purchase of a home. The husband alleged that he could make these payments only as a result of promised assistance on the part of his family. The order also provided for him to make periodical payments to the wife of £6,000 pa from 1 January 2005 during their joint lives until her remarriage or further order, together with periodical payments for the children.
The husband duly paid the first instalment of the lump sum and in 2009, following a variation of the condition for its payment, he paid the balance. He complied with the orders for periodical payments only until 2008, since when no such payments have been made.
Meanwhile, in 2007, the wife had applied for an order setting aside the order dated 30 April 2004 on the ground of the husband's fraudulent non-disclosure of his resources at that time. The wife's application took the form of a simple notice issued within the divorce proceedings. The first four hearings for directions were conducted by Baron J because she had made the substantive order; then in 2008 she ruled that, having conducted the privileged FDR meeting, she should not continue to have conduct of the application.
Following ten further interlocutory hearings spread over three years, the substantive hearing of the wife's application began before Moylan J on 13 February 2012. The major reason for the delay was that in 2008 the husband had been charged with offences of money-laundering to a value of about £25m contrary to sections 327 and 328 of the Proceeds of Crime Act 2002 ("the 2002 Act"). The prosecution case had been that from mid-2005 the husband had assisted Mr Ibori, who had been a state governor in Nigeria, in the laundering of money which in that capacity Mr Ibori had corruptly obtained. In the criminal proceedings orders had been made restraining the husband from deploying his assets. In November 2010, following an eight-week trial, the husband had been found guilty and remanded in custody. Thereupon a second trial had begun, at which the husband pleaded guilty to six further counts of money-laundering and conspiracy to defraud. In April 2011 the husband had been committed to prison for a total of ten years, whereupon the Crown Prosecution Service ("the CPS") had launched confiscation proceedings against him under the 2002 Act. They are still on foot and the husband remains in prison.
Moylan J heard the wife's application over eight days in February and June 2012. The wife, who gave oral evidence, had sporadic legal representation but largely conducted the case herself. The husband, who was produced from prison in order to give oral evidence, was represented pursuant to a civil aid certificate by counsel other than counsel who have represented him in the successive appeals. The husband's father, who lives in India, gave evidence on behalf of the wife by video-link.
On 30 May 2012, when the wife's application was part heard, Moylan J ordered the CPS to make extensive disclosure of documents which it had obtained for the purpose of the criminal proceedings against the husband: [2013] 1 FLR 1003. It had opposed the order on the basis that many of the documents or their contents had been obtained from sources outside the UK pursuant to requests made by the Crown Court under the Crime (International Co-operation) Act 2003 ("the 2003 Act") and that section 9(2) of it precluded any use of them other than that specified in the requests. Applying the decision of the Court of Appeal in BOC Ltd v Instrument Technology Ltd [2001] EWCA Civ 854, [2002] QB 537, Moylan J rejected the construction of section 9(2) for which the CPS contended. The CPS appealed to the Court of Appeal against Moylan J's order and in the interim his order for disclosure was stayed.
On 25 September 2012 Moylan J delivered a reserved, oral judgment, by which he granted the wife's application and set aside the order which had dismissed her remaining capital claims against the husband. The judge resolved not at that stage to set aside the order for payment of the lump sum in case its consequence should be that the lump sum, by then in the wife's hands, became subject to the restraint order obtained by the CPS against the husband. In giving judgment Moylan J, no doubt sensitive to the existing delays, did not await the determination of the pending appeal of the CPS against his order dated 30 May 2012. It follows that he never saw the documents which were the subject of that order. But the contents of some of the documents had been in evidence before him. For reference had been made to them in open court in the course of the husband's criminal trials, which the wife had attended; Moylan J had allowed her to relay in her evidence to him some of what she had then heard – for challenge or otherwise by the husband; and no doubt some of her evidence in this...
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