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15 OCT 2015

Gohil v Gohil – in a nutshell

Amy Royce-Greensill

Professional Support Lawyer


Gohil v Gohil – in a nutshell

Gohil (Appellant) v Gohil (Respondent) [2015] UKSC 61

(Lord Neuberger (President), Lady Hale (Deputy President), Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed and Lord Hodge)

In a nutshell

The Supreme Court reinstated the trial judge’s order to set aside part of a consent order due to the husband’s non-disclosure.


Mrs Gohil issued divorce proceedings in May 2002 and the decree absolute was pronounced following conclusion of complex financial relief proceedings by agreement at FDR on 30 April 2004. The 2004 Order included a recital 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 financial proceedings had been protracted by continued dispute as to the extent to which Mr Gohil had provided full, or even adequate, disclosure of his financial circumstances.

In 2007 the wife issued an application to set aside the 2004 consent order on the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband. The husband had faced criminal proceedings for fraud and most of the wife's information about the husband's fraudulent activity came from her attendance at his Crown Court trial. She sought full disclosure from the CPS, which was ordered by Moylan J on 30 May 2012. The CPS and the Secretary of State successfully appealed the disclosure order, with the appeal being determined in a judgment of the Court of Appeal in November 2012 (Gohil v Gohil [2013] 1 FLR 1095). The wife's case before Moylan J referred to this information, which was never disclosed to the family court.

Moylan J indicated that there were grounds to set aside the substantive order on the basis that either (a) there had been non-disclosure, which had led to the court making an order that was substantially different from the order that would have been made if proper disclosure had been made (as per Livesey v Jenkins [1985] FLR 813) and/or (b) there was new evidence that was such as ‘would probably have an important influence on the result of the case’ (as per Denning LJ (as he then was) in Ladd v Marshall [1954] 1 WLR 1489).

Ultimately, Moylan J made an order granting the wife's application by effectively allowing her application to be reopened.

The husband appealed to the Court of Appeal. The Court of Appeal allowed the husband’s appeal. It held that Moylan J had incorrectly applied the Ladd criteria and was wrong to allow the wife’s application on that basis. However, it held that the Ladd criteria were relevant in order to establish what evidence the wife could adduce in order to establish material non-disclosure by the husband. Applying those criteria to the evidence before Moylan J, and discounting other inadmissible evidence, the Court of Appeal concluded that there was no admissible evidence to support Moylan J’s conclusions on material non-disclosure.

The wife appealed to the Supreme Court.

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Wife’s appeal allowed.
  • There needs to be a clear procedure formulated to set aside financial orders
The husband had suggested that, as a judge of the High Court, Moylan J did not have jurisdiction to set aside an order of the High Court. This argument was not pursued in the Court of Appeal, but the Supreme Court made the following observations: (a) the Court of Appeal has long recognised that it is an inappropriate forum for inquiries into non-disclosure issues raised in proceedings for the setting aside of a financial order; (b) this is shown by the present case, where an intensive fact-finding hearing was necessary; (c) there is an urgent need for definitive confirmation of the High Court’s jurisdiction to set aside a financial order made in that court; (d) the Supreme Court endorses the conclusion of the Family Procedure Rule Committee in relation to its ‘Setting Aside Working Party’, set out in the minutes of its meeting on 20 April 2015.
  • The recital does not work
Words such as those used in the recital have no legal effect in a financial order in divorce proceedings. The husband owed a duty to the court to make full and frank disclosure of his resources and one spouse cannot exonerate the other from complying with this duty.
  • Ladd v Marshall does not apply here
The Ladd v Marshall criteria have no relevance to the determination of an application to set aside a financial order on grounds of fraudulent non-disclosure. The Court of Appeal was wrong to accept an argument that the criteria should apply to determine what evidence could be adduced.

In light of the erroneous approach to the admissibility of the wife’s evidence, the dismissal of her set aside application could not stand.
  • The trial judge would have found the husband guilty of non-disclosure anyway, even without the inadmissible evidence
Through no fault of his own, Moylan J had relied on evidence from the husband’s criminal proceedings obtained from sources outside the UK (which had since been held inadmissible and had been discounted by the Court of Appeal). However, even if he had referred only to the evidence admissible before him, Moylan J would still properly have found the husband to have been guilty of material non-disclosure in 2004. Moylan J’s order dated 25 September 2012 should therefore be reinstated; and the wife’s claim for further capital provision should therefore proceed before him. It is unclear whether her claim will succeed and, if so, to what extent.

Lord Neuberger - agreed that Moylan J’s order could be reinstated.
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