Family Solicitors

Duncan Lewis Family Solicitors have appeared in an appeal against a decision refusing to set aside the original Consent Order in financial remedy proceedings originally set aside in September 2012 on the basis of the existence of fresh evidence and material non-disclosure.

Gohil v Gohil [2015] EWCA Civ 274

On Appeal From - Gohil v Gohil [2014] EWCA Civ 274 (13 March 2014)

Other linked reports - Crown Prosecution Service and another v. Gohil and another [2013] 1 F.L.R. 1095; [2013] 1 F.C.R. 371; [2013] Lloyd’s Rep. F.C. 115, sub nom. Gohil v. Gohil [2013] 2 W.L.R. 1123; sub nom. Gohil v. Gohil and others [2013] 2 All E.R. 56, CA.

Legal 500 recommended law firm, Duncan Lewis Solicitors, have appeared in an appeal in the case of Gohil v Gohil whereby the wife was seeking to overturn the Court of Appeal’s decision to dismiss the wife’s application to set aside a Consent Order concluding their financial remedy proceedings in 2004. Consequently the granting of the appeal set aside the Court of Appeal’s order and was replaced with the original High Court order setting aside the original Consent Order of 2004.

The case concerned Mrs Varsha Bhadresh Gohil, the ex-wife of a former solicitor who was convicted of money laundering and conspiracy to defraud in 2010 and sentenced to ten years imprisonment (subject to an ongoing criminal appeal). Mrs Gohil sought to have the financial settlement agreed during her divorce proceedings in 2004 to be set aside. This settlement granted her a lump sum of £270,000 but she believed her former husband, Mr Gohil, had hidden and failed to disclose a large portion of his assets.

Mrs Gohil sought to set aside a consent order within financial remedy proceedings on the basis of material non-disclosure. At the time the consent order was agreed in 2004 Mrs Gohil maintained that Mr Gohil had not provided full and frank disclosure. In 2010 Mr Gohil was subsequently convicted of money laundering offences and sentenced to ten years imprisonment. The offences related to activities allegedly conducted by Mr Gohil post 2005.

Moylan J considered the law in relation to the setting aside of financial consent orders and directed in September 2012 that the Consent Order of 2004 should be set aside and financial proceedings be started afresh.

Mr Gohil appealed to the Court of Appeal on the basis that Moylan J had incorrectly applied the law and procedure set down to determine such applications and had considered vast amounts of evidence subsequently deemed inadmissible by the Court of Appeal.

The Court of Appeal allowed the appeal.

However, on 14th October 2014 the Supreme Court have unanimously decided to overturn the Court of Appeal’s decision and allow the wife to proceed to a full determination of her financial claims.

The full impact of the decision of the Supreme Court will take sometime to filter down and to be analysed. However, the following principles can be adduced from the Judgement;

The Test to be applied in non-disclosure cases

The tests outlined in the Ladd v Marshall [1954] 1 WLR 1489 case do not apply to applications to set aside financial orders on the basis of non-disclosure.

The test in Livesy v Jenkins [1985] AC 424 is the correct test to apply.

Adverse inferences can be made in regards to spouse who fails to co-operate as per Prest v Petrodel Resources Ltd [2013] UKSC 34.

In essence the Supreme Court has stated the test in such a case is simply that where “non-disclosure was intentional, it is deemed to be material so that it is presumed that proper disclosure would have led to a different order, unless that party can show, on the balance of probabilities, that it would not have done so” (Judgement of Lord Nuerberger)..

The Supreme Court also made the following observations and rulings;

Jurisdiction on set aside of financial orders

Procedural guidance confirming that an application to set aside a financial order can be made to the court at the level at which the original order was made, in this case the High Court. It is envisaged that this will be clarified in amendments to the Family Procedure Rules in due course.

Recitals in Financial Consent Orders

The Court has clarified that any recital limiting the duty on any party to provide full and frank disclosure are unenforceable and have no legal effect because one spouse cannot remove the obligation for full and frank disclosure on another spouse.

Mr James Turner QC and Mr George Gordon were instructed by Idnan Deen of Duncan Lewis Solicitors for the Appellant, Mr Bhadresh Gohil.