Rose v Rose (Divorce: Consent Orders) (No.2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bennett,The Honourable Mr Justice Bennett |
| Judgment Date | 20 March 2003 |
| Neutral Citation | [2003] EWHC 505 (Fam) |
| Docket Number | Case No: FD00D01756 |
| Court | Family Division |
| Date | 20 March 2003 |
[2003] EWHC 505 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
The Honourable Mr Justice Bennett
Case No: FD00D01756
Miss Florence Baron QC and Miss Deborah Bangay (instructed by RadcliffesLeBrasseur) for the applicant
Mr Timothy Scott QC and Mr Simon Gill (instructed by Payne Hicks Beach) for the respondent
Hearing date: 7 March 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 20 March 2003. It consists of 13 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
By a summons dated 27 August 2002 Jonathan Rose (to whom, for convenience, I shall refer to as "the husband") has applied to set aside a consent order made by me on 3 August 2001 whereby he was ordered to pay Julia Rose (to whom, for convenience, I shall refer as "the wife") a lump sum of £3,500,000 in full and final settlement of all her claims for ancillary relief, and of any claim she might have under the Inheritance (Provision for Family and Dependants) Act 1975 should the husband predecease her. Any similar claims the husband might have had were likewise dismissed.
The wife immediately countered by, on 30 October 2002, issuing her own summons to strike out the husband's summons under Order 18 rule 19 of the Rules of the Supreme Court 1965 and/or under the inherent jurisdiction of the court on the grounds that it was frivolous or vexatious and/or an abuse of the process of the court. It is this summons which is before me. If I dismiss the wife's summons then the husband's summons will be heard at a later date.
The history of this case is set out by Thorpe LJ in his judgment in this case ie Rose v Rose [2002] EWCA 208, [2002] 1 FLR 978. I gratefully adopt his recital of the facts.
The Court of Appeal's judgment was delivered on 20 February 2002. On 28 February 2002 an interview which the husband gave to The Daily Mail was published. Much was made in it of Mr Morris. As a result Mr and Mrs Innes Gibson, having read the article, got in touch with the husband. The information they gave was then put into affidavits sworn by them on 8 April 2002. What they said can be distilled as follows.
Mr Innes Gibson first met Mr Morris in 1996. In 1998 Mrs Innes Gibson in effect paid a hotel bill for Mr Morris by lending him £1,500. Mr Morris did not repay it. In March 2000 Mr Innes Gibson accidentally met Mr Morris. Mr Morris promised to repay. In March he was asked round for a drink to discuss repayment. He came with the wife, who, according to Mr Innes Gibson, were "very much an item" and according to Mrs Innes Gibson "very much a couple".
On 7 June 2000 Mr Morris and the wife came to the home of Mr and Mrs Innes Gibson. Mr Morris said that the wife was going to be very wealthy as a result of her (impending) divorce as the husband was the heir to the Glaxo fortune.
On 20 September 2000 the Innes Gibsons agreed to meet Mr Morris and the wife in a restaurant in Glossop Street. They were concerned to pick a restaurant where they could not be seen together otherwise the amount of money the wife might receive from a divorce settlement could be prejudiced. At paragraph 13 of his affidavit Mr Innes Gibson says:
"Mrs Rose said she had moved out of the matrimonial home and was now living in a house behind Marks and Spencers. They were very open about their relationship and their plans for their future life together. Nick Morris said that he had put Mrs Rose in touch with his lawyers and that Mrs Rose could expect to receive millions of pounds by way of a divorce settlement by next summer at the latest. They said that they intended to use some of the money to buy a house together in Tuscany with a vineyard, so that they could spend part of the year in Italy growing vines and making wine. Nick Morris said that once the divorce settlement came through he intended to go back to university and do a PhD. Mrs Rose said that the house behind Marks and Spencer that she was living in was cheap compared to what she was used to and that the accommodation was not great. They said that they had to smuggle Mr Morris into the property at night so that no one knew they were living together. If this was known, she would not get as much by way of a settlement from Mr Rose.
In December 2000 they all met again Mrs Innes Gibson was reluctant to go to the meeting because it had become increasingly clear Mr Morris was not going to repay the monies he owed her. At the meeting Mr Morris and the wife constantly harped on about their future life together and how they would have a house in Italy. They said they were shortly going on a holiday to Kenya together.
On 29 April 2002 the husband's solicitors wrote to the wife's solicitors enclosing copies of the affidavits of Mr and Mrs Innes Gibson. It was alleged on behalf of the husband that the wife had concealed "the true nature of their relationship and their future intention to cohabit" and that the wife had been guilty of fraud. It was said that my order of 3 August 2001 could not stand and must be set aside.
On 2 July 2002 the husband swore an affidavit (A21) in support of the application (yet to be issued) to set aside the order of 3 August 2001. The husband alleged that on 15 January 2001 when the FDR hearing was adjourned and again on 3 August 2001, when I conducted the FDR hearing which led to the order I have referred to, the wife "fraudulently and deliberately failed to disclose the true nature of her relationship with the co-respondent and that the petitioner deliberately sought to mislead the court". It is said that if I had known of the matters disclosed by Mr and Mrs Innes Gibson my views as to the quantum of the award and as to whether a portion of it should have been held in trust for the wife would or might have been different.
The facts which I now recite (which must be read in conjunction with those set out by Thorpe LJ) are these. In early 2000 the husband engaged the services of a private detective. He obtained evidence that the wife and Mr Morris had committed adultery in the matrimonial home. Mr Morris's unsavoury past, including a conviction for fraudulent trading resulting in an 18 month prison sentence, was unearthed. On 16 March 2000 the husband swore an affidavit setting out those matters.
At the (abortive) FDR hearing on 15 January 2001 before a deputy High Court judge, Miss Florence Baron QC, on behalf of the wife, put in written submissions part of which referred to Mr Morris as follows:
"W has a relationship with Nick Morris—she does not live with him or receive financial support from him. She has no intention of marrying him or cohabiting with him in the foreseeable future. The relationship began in about March 2000.
Mr Morris (an old Etonian) has a conviction for fraudulent trading (one count—the circumstances being he underwrote a share offer without having all the necessary funds in place to cover his underwriting). He served a term of imprisonment. He has his own home in Brook Green were he lives with the children of his first marriage (who have chosen to live with him rather than their mother). He currently runs a business importing champagne and another refurbishing properties. His plans are to return to Cambridge in September 2001 to read for a PhD. He is not wealthy (although in the fullness of time he may inherit funds from his mother). His finances are not relevant to W's claims.
The parties became friendly with Mr Morris as a result of his wine business in about January 2000. H considers that Mr Morris suborned W because although the marriage was unhappy she would not have left home "prior to the children growing up if she had not been encouraged to do so".
When the relationship began, H had W followed and had her bedroom bugged (whilst he was away on business) in order to ensure that he had evidence of adultery. [3–4]
H appears to be very bitter that the marriage has ended."
It is said by the husband that the wife thereby misled the court by failing to tell her counsel, and hence the court, that she and Mr Morris intended to live together and such would have been relevant in the judicial exercise to be undertaken pursuant to section 25 of the Matrimonial Causes Act 1973.
When the adjourned FDR hearing took place before me on 3 August 2001 Miss Baron put in written submissions. In so far as they referred to Mr Morris they differed only in respect of the first paragraph which read:
"W has a relationship with Nick Morris which began in about March 2000—she does not live with him or receive financial support from him. She has no intention of marrying him or cohabiting with him. In recent months, the relationship has cooled."
Otherwise what was said about Mr Morris exactly followed what had been said in January 2001.
The husband was represented by Mr Barry Singleton QC and Mr Lewis Marks QC, very experienced practitioners in the field of ancillary relief litigation. Their written submissions referred to Mr Morris not at all. It is common ground during their oral submissions no reference was made to Mr Morris in any shape or form.
One of the matters that the husband was most concerned about was neatly encapsulated by Mr Singleton in paragraphs 29, 30 and 31 of his written submissions (D 152). The husband contended that the just outcome was either that the wife should have £2.7 million (including her own assets) or £1.2 million (including her own assets) and a life interest in £2.3 million. His primary contention was the latter "as much of the money has come from...
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