This case digest has been taken from Lexis PSL.
EK v DK and others [2023] EWHC 1829 (Fam)
https://www.bailii.org/ew/cases/EWHC/Fam/2023/1829.html
The Family Division granted the appellant, EK’s, application to have a consent order set aside. EK submitted fraudulent non-disclosure by the respondent (DK) in respect of:
(i) a property transaction concluded on the same day as the consent order was approved;
(ii) DK’s undisclosed ability to borrow money from his brother; and
(iii) the chances of success in respect of pending overseas litigation.
It fell to be determined whether DK’s disclosure in those respects was full and frank. The court held that DK had failed to offer full and frank disclosure, and that had led EK to reach the agreement she had and to the court’s subsequent approval. In the light of the findings about DK’s non-disclosure and dishonesty, that agreement could no longer stand.
Background
The court granted a consent order in respect of a divorce. The applicant EK sought to have the consent order set aside on the basis of fraudulent non-disclosure by the respondent DK. Counsel for the second and third respondents kept a watching brief in the present case.
Issues and decisions
Whether DK’s disclosure was full and frank, and if not, whether the misrepresentation was intentional.
EK submitted fraudulent non-disclosure in respect of: (i) a property transaction concluded on the same day as the consent order was approved; (ii) DK’s undisclosed ability to borrow money from his brother; and (iii) the chances of success in respect of pending overseas litigation. Further, had DK been truthful, the parties would not have reached an agreement on the same terms.
DK had a clear duty, in accordance with his duty of full and frank disclosure, to disclose that his brother was prepared to lend him significant sums. DK’s dishonesty prevented EK from making a properly informed decision with the benefit of the advice of her legal team.DK omitted to tell the court that he had received oral advice that the prospects of success of the litigation were ’50/50′ and that the result was imminent. Accordingly, on the balance of probabilities, DK gave deliberately misleading evidence (see [65], [69], [87]-[89] of the judgment).
The events that immediately followed the prior proceedings were inconsistent with the evidence that had been presented by DK in those proceedings and led EK to reach the agreement she had, and which led the court to approve that agreement. In the light of the findings about DK’s non-disclosure and dishonesty, that agreement could no longer stand (see [108] of the judgment).
Sharland v Sharland[2015] UKSC 60[2015] All ER (D) 108 (Oct)[2015] 3 WLR 1070
Gohil v Gohil [2015] UKSC 61, [2016] 1 All ER 685, [2015] 3 WLR 1085 applied
Accordingly, the application would be granted (see [108] of the judgment).
Case report by Lucy Bredenkamp, attorney for Lexis PSL
