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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Norman v Norman [2025] EWFC 107 (B) (17 April 2025) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2025/107.html Cite as: [2025] EWFC 107 (B)

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IN THE FAMILY COURT SITTING AT BOURNEMOUTH AND POOLE
FINANCIAL REMEDIES COURT

		Courts of Justice Deansleigh Road Bournemouth BH7 7DS
		17 April 2025

District Judge Veal:

Introduction

1. In the application before the court, the applicant is Kathryn Elizabeth Norman and the respondent is Michael Ian Norman. I will refer to them as the applicant and respondent respectively. In fact, it was the respondent who was the applicant in the underlying financial remedy proceedings.
2. The application before the court was made by the applicant on 22 October 2024, which is an application to set aside the order said on its face to have been made by consent on 9 January 2023 by District Judge Lacey at a Financial Dispute Resolution appointment. It is common ground that the order was approved by the judge on 31 January 2023. I will call this order "the January 2023 order."
3. The basis of the application is alleged material non disclosure by the respondent about particular assets. It focuses on:

a) An advance inheritance received by the respondent from his parents after the FDR; and

b) Trusts declared by the respondent's parents in 2005, which are collectively referred to as "the St Ives Trusts." Those were discretionary trusts, and the respondent was a beneficiary of them. The St Ives Trusts have paid distributions to the respondent since the FDR.

4. On 10 December 2024, directions were given by District Judge Bridger in respect of the application which includes, at paragraph 10, an extremely helpful list of issues. I will refer to these as "the hearing issues." The direction was in these terms:

"The hearing shall be limited to the following issues:

a) Whether there was non disclosure of the advance inheritance received by the respondent after the FDR.

b) Whether there was non disclosure on the part of the respondent in relation to his beneficial interest under the St Ives Trusts.

c) When and how the applicant became aware of the existence of:

i) The advance inheritance; and

ii) The St Ives Trusts that the respondent was a beneficiary of.

d) Whether the application to set aside was made promptly.

e) Whether the matters raised have been dealt with by the court.

f) Whether the [January 2023 order] should be set aside in the light of the above.

g) If the [January 2023 order] is set aside, case management directions."

5. The court listed the application for hearing, and that came before me on 7 and 8 April 2025. Because the evidence and submissions took rather longer than had been provided for, the hearing did not conclude on those dates. I therefore agreed to hand down this written judgment.
6. The bundle for the hearing exceeded the page limit imposed by the order of 10 December 2024. I understand also that the applicant's solicitors did not agree the contents of the bundle with those acting for the respondent. I have nonetheless read the evidence filed by the parties, and heard live evidence from each of them. There were no third party witnesses. I have been assisted during the course of the hearing by counsel for the parties.
7. The fact that I do not mention something in this judgment does not mean that I have not fully considered it, but it is impossible to refer in this judgment to absolutely everything I have heard and read.
8. The parties' positions are, in summary, as follows:

a) The applicant submits that the respondent intentionally failed to disclose, at the FDR or before the January 2023 order was finalised, that he was a beneficiary of the St Ives Trusts and that he would receive the advance inheritance. That, she says, meant that the court was unable to perform its function at the hearing and that, had those interests been known about, the outcome would have been different.

b) The respondent's position is that, at the time of the FDR or before the January 2023 order was finalised, he was unaware that he would receive the advance inheritance, and that the non disclosure of his beneficial entitlement under the St Ives Trusts was innocent. Had either been known, the outcome would not have been substantially different in any event. He also raises an issue about the promptitude with which the applicant made her application.

Legal framework

9. A duty of full and frank disclosure exists between parties in financial remedy proceedings from the date of the parties' Forms E until the conclusion of proceedings: N v N (Periodical Payments: Non Disclosure) [2014] EWCA Civ 314. In Rose v Rose [2003] EWHC 505 (Fam), the court set out that the date upon which the duty of disclosure ends is the date of giving judgment; in this case, there was no judgment because the order was made by consent, but in my judgment the date of approval of the order is likely to be an analogous point in time on the facts of this case. The judgments in Goddard-Watts v Goddard-Watts [2019] EWHC 3367 (Fam) and ON v ON [2024] EWFC 379 suggest that the duty ends when the final order is sealed, presumably because a court may readily reconsider its judgment until the sealing of its order giving effect to it: see, for example, Re L and B (Children) [2013] UKSC 8.
10. In Livesey (Jenkins) v Jenkins [1985] AC 424, Lord Brandon observed that:

"… unless a court is provided with correct, complete and up-to-date information on the matters to which, under s. 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court…"

He went on to say that a party must bring to the attention of the other side, and the court:

"…any changes in the situation of either party occurring between the filing of the original affidavits and the final disposition of the claims by the court."

11. As a matter of principle, therefore, it seems to be that the duty arises whichever party has the disclosable information, and whether it assists their case or not.
12. Livesey is also authority for the proposition that not every example of non disclosure will result in an order being set aside. Orders will not be set aside if the disclosure (or lack of it) would not have made any substantial difference to the order that the court would have made.
13. In Gohill v Gohill [2015] UKSC 61, the Supreme Court again set out that the absence of full and frank disclosure disables the court from discharging its duty under Section 25 of the Matrimonial Causes Act 1973. It reaffirmed the point that, whether the non disclosure or misrepresentation was accidental, innocent or negligent, it will be necessary to show that the omission or distortion is material to the final order that would otherwise have been made. The burden is on the applicant to do so.
14. In Sharland v Sharland [2015] UKSC 60, the Supreme Court confirmed that the starting point, where there is fraudulent misrepresentation, is that that will unravel the consent order. However, if the fraudster can satisfy the court that the fraud did not vitiate consent, or that the facts fraudulently concealed or averred would not, if known, have resulted in a significantly different outcome, then the order might not be set aside. Gohill is also authority for the proposition that the burden is on the respondent to show that. In this case, the respondent refers to Goddard-Watts and MS v FS [2020] EWFC B9 in support of the test that the order would be set aside if the non disclosure deprived the innocent party of a real prospect of achieving a better outcome at a full hearing.
15. The power of the court to set aside the order is contained in the Matrimonial and Family Proceedings Act 1984, at Section 31F(6).
16. The relevant rule is FPR 9.9A which is supplemented by PD9A, at paragraph 13.
17. It was submitted on behalf of the applicant that the issues set out in paragraphs 10(c) and (d) of the order of 10 December 2024 are not strictly relevant because the application is based on material non disclosure, and not on subsequent events which change a fundamental aspect of the order, presumably per Barder v Caluori [1988] AC 20. I did not understand that submission. FPR 9.9A(4) is clear that the Part 18 procedure applies, and PD18A sets out, in paragraph 4.6 that:

"Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it."

18. I have been taken in this respect to Goddard-Watts, Kingdon v Kingdon [2011] 1 FLR 1409 and BT v CU [2021] EWFC 87 in further support of that idea. The parties agreed that what constitutes promptitude is a fact specific exercise. I was referred to the judgment in A v B [2016] EWHC 10, in which Roberts J said this:

"There have been a significant number of authorities in this area… I need only mention three principles that have been drawn to my attention by Mr Amos. I accept the first two without reservation:-

"(a) It is fundamental that any attempt to overturn a consent order on the basis of non-disclosure will not succeed if the disclosure would not have made any substantial difference to the order which the court would have made. This simply reiterates the point made in Livesey v Jenkins that the non-disclosure must be material. (b) The Applicant must act without delay once he or she has discovered the alleged non-disclosure. The justification for this requirement is the overriding importance of finalising litigation promptly and conclusively (see Thorpe LJ in Burns v Burns [2004] EWCA Civ 1258). Indeed, in Rose v Rose [2003] 2 FLR 197, CC J held that a delay of one year between the discovery of the alleged non-disclosure and the issuing of an application to set aside was wholly unreasonable and an additional reason why the application in that case was not permitted to proceed."

19. I sought submissions about my view that failure to pursue an application promptly would potentially give rise to the power to strike it out pursuant to FPR 4.4(1)(c). I do not think that counsel for either party disagreed with that proposition, although I work on the basis that the principles arising from applications for relief from sanctions under FPR 4.6 and Denton v TH White Limited [2014] EWCA Civ 906 would, in that context, likely be engaged.

Evidence

20. In resolving disputed issues of evidence in this court, where a person asserts a particular fact, it is that person who must prove it. The burden of proving an allegation in relation to her application therefore lies with the applicant, but subject to the test in Sharland, which I have already set out.
21. The standard of proof is the balance of probabilities. In other words, if it is shown that any particular fact is more likely than not to be true, then it is proved. The court is entitled to take into account inherent probabilities and improbabilities in deciding whether a fact is proved, but must base its findings on evidence, including reasonable inferences, and not speculation. The court has regard to the totality of the evidence and does not compartmentalise it.
22. It is common for witnesses to lie in the course of an investigation or a hearing. They may do so for a variety of reasons, for example, shame, misplaced loyalty, fear or distress. It does not follow that, because they have lied about one thing, they have lied about everything: R v Lucas [1981] QB 720.
23. Witnesses may also be fallible, which goes to the reliability of their testimony rather than their credibility. I have in mind that a witness' recollection of events is a process of fallible reconstruction which may be affected by external influences and supervening events, moulded perhaps also by the process of litigation, with past beliefs being reconstructed to make them more consistent with present beliefs and motivated by a desire to give a good impression: Gestmin SGPS SA v Credit Suisse (UK) Limited & another [2013] EWHC 3560 (Comm); Lachaux [2017] EWHC 385; Rothschild v De Souza [2018] EWHC 1855.
24. I was also taken to Prest v Petrodel Resources Limited [2013] UKSC 34, although I am not convinced that the sort of scenario envisaged by Lord Sumption in that case has, in fact, arisen in this one.

Issues of fact and the evidence

25. The impression made by the applicant on the court was that she was intelligent and articulate. She gave evidence in a way which suggested that she was trying to predict how she was being questioned and, at times, she answered a different question to the one asked. In those ways, it appeared to me that she sought to control her narrative. Having said that, there were considerable inconsistencies in her evidence.
26. The respondent was fairly argumentative in the way he answered questions, and often started his answers before he had listened to the whole question. Despite the way in which he delivered his answers, though, his evidence was broadly consistent throughout. The issue that I have had to consider is how his evidence fits in with the rest of the information before the court.
27. It is not in dispute that the parties commenced a relationship in 1986, and married in July 1998. They separated in February 2020. The length of the marriage to separation was therefore approaching 22 years.
28. They have two children, A and B, who were born in December 2002 and December 2008 respectively.
29. The declarations of trust by each of the respondent's parents comprising the St Ives Trusts are dated 5 February 2005. The beneficiaries, according to the trust deeds, included the children of the respondent's parents, namely the respondent and his sister, as well as their descendants. The respondent's sister had no children, and A was two years old at the time the trusts were created. The trusts were discretionary trusts.
30. The applicant states that she was aware, during the parties' marriage, that the St Ives Trusts had, as beneficiaries, B and A. She told the court that, although she knew that the children were beneficiaries at the time, she did not realise that the beneficiaries also included the respondent.
31. The respondent's evidence was also that he was aware of the St Ives Trusts, but that he was not aware during the marriage that he was a beneficiary. He states that his parents told him and the applicant, he thought after A was born, that the St Ives Trusts were being used as a tax efficient way to benefit their grandchildren.
32. The main asset of the St Ives Trusts was a property in Cornwall which the parties, like other members of the family, would sometimes use for holidays. The applicant states that she became aware that that property might be sold in August 2022. The trust property was then sold in September 2023. The respondent's evidence is that his parents did not tell him that they were intending to sell the trust property until late February 2023, with it then being marketed in March 2023 and an offer accepted in April 2023.
33. It appears that the respondent had himself received a distribution from the St Ives Trusts in 2007 amounting to £2,000, but he says that he thought at the time that that was a gift from his parents. It transpires that the respondent's sister received a like distribution at that time, and distributions were also made to her in 2018 and 2019. Otherwise, the information before the court is that distributions were paid only to A and B in the period from 2006 until 2019.
34. The court heard that, in March 2020, the respondent found the applicant going through papers in an office which was connected to the parties' house. The applicant accepted that she had been trying to find papers relating to the company pension which the respondent had set up. She said that she generally kept her own paperwork in the main part of the house. She told the court that she had had access to the respondent's home office, although she appeared to row back on that later in her evidence, saying that she only had access on the day in question because the respondent was present.
35. The respondent says that, when he cleared out the office at the home, he cleared out everything including, by accident, documents which were important to the applicant, including the deeds for the house and planning permissions. He then had to return those. The applicant's oral evidence was that the respondent left behind a box of documents containing a folder of documents all dated in 2009.
36. That issue is relevant because part of the evidence before the court is an email from Parkhurst Hill dated 6 May 2009 and undated handwritten notes. I will call these "the 2009 documents." The applicant asserted that these were amongst the documents which had been left at the property by the respondent.
37. The handwritten notes were from the respondent's father and addressed to the respondent. They state:

"You need to claw-back £1,333.34 via form R40 and the revenue for [A]. No tax refund / payment for you as a 40% taxpayer. Please send the tax return check [sic] to me for the [A] a/c."

That was a reference, as I understand it, to the tax consequences following a payment to A from the St Ives Trusts. Distributions were made to A in 2008 and 2009 but not, on the evidence, to the respondent.

38. The respondent told the court that he thought that the note was given by his parents to the applicant, and that he did not see it at the time it was written. He accepted that it was a note written to him and that it was likely to have been intended to be given to him. However, he said that he was working away four nights each week, and that his parents knew that the applicant managed financial matters for the family. He thought, in fact, that the handwritten note may have been posted by his father and addressed to both parties.
39. Parkhurst Hill was, the applicant states, the firm of accountants who created the St Ives Trusts. The email dated 6 May 2009 gave advice in relation to tax, and was addressed to the respondent's father. It also states that:

"David advises that the Trusts will not need to be changed to include [B] as they already include all children and descendants of the settlors i.e. yourself and Mrs Norman."

40. The respondent's evidence was that he had assumed that the handwritten note was accompanied by the email from Parkhurst Hill, which at least raises a question about whether he in fact knew whether that was the case or not.
41. The applicant accepted that, during the marriage, she managed the family's financial affairs up to a point, including those of B. She had a background in finance. The respondent's evidence was that the applicant dealt with the children's finances and, as I have said, that his parents knew that. That is why he considers that the 2009 documents were in the possession of the applicant, rather than him.
42. An email between the parties dated 9 May 2020 referred to the property in Cornwall held in trust by the St Ives Trusts, and that that arrangement was for estate planning purposes. The respondent told the court that he was not aware of the fine detail of his parents' estate planning, that they were a private family who would not generally discuss such things.
43. The procedural history is that the divorce petition was issued on 15 April 2021 and decree nisi was pronounced on 22 February 2022.
44. The Form A was issued by the respondent on 27 April 2022. The respondent's Form E was dated 24 June 2022. That did not refer to the St Ives Trusts.
45. The parties reached agreement at the FDR on 9 January 2023. The January 2023 order provided for:

a) The former matrimonial home to be transferred from the respondent to the applicant;

b) A lump sum of £17,000 to be paid by the applicant to the respondent;

c) Within 28 days of decree absolute, the applicant to transfer her shares in Niche Materials Limited (which I will refer to as "the company") to the respondent, the applicant to resign as an employee of the company and make no further claim, and provide an indemnity to the respondent;

d) A pension sharing order in favour of the applicant; and

e) A capital and income clean break.

46. At the FDR, the financial picture apparently relevant to this settlement was:

a) The former matrimonial home was valued at £463,125 net (the gross value having been £475,000);

b) The company was valued at £254,000 net;

c) There was to be capital gains tax paid on the share transfer by the applicant of £13,395;

d) Investments were retained by the applicant worth £48,574 and by the respondent worth £10,000;

e) The applicant had £11,018 in the bank and the respondent £3,810;

f) The applicant had a camper van worth £20,440 and the respondent another worth £16,000;

g) The applicant had debts of £8,900 and the respondent debts of £10,734.

47. I calculate that the aggregate of those assets and liabilities was £793,938. The net effect of splitting those in the way provided for by the order gave the applicant £503,862 (63%) and the respondent £290,076 (37%).
48. The respondent had the greater earning capacity of the parties, and his income was earned from the company which he retained. The former matrimonial home was transferred to the applicant, which housed her mortgage free.
49. As I have said, a pension sharing order was also made. I have not included the pensions in my calculations to avoid double counting, because it seems to me that they deal with a different type of asset, providing for income in retirement, and they were illiquid. The applicant was born in 1967, and was 55 years old at the time of the FDR and is 57 years old now. The respondent was born in 1965, and was 57 years old then and is 60 years old now.
50. The initial order made on 9 January 2023 seems to have contemplated that more information was needed, to enable the final order to be drafted, in order to give effect to the parties' intentions to equalise the pensions on retirement. I infer that it was once that information was received that the finalised January 2023 order was then sent to the court for approval on 30 January 2023. It was approved by District Judge Lacey on 31 January 2023. It is not clear to me precisely when it was sealed.
51. It is relevant to say that the order includes a recital at paragraph 10 in these terms:

"The parties agree that the contents of the family home shall be divided between the parties by agreement by 6^th February 2023, and in the event that the parties cannot reach agreement by then either of them shall be free to make an application to the court for it to decide the issue, save that it is recorded that in the event that there has been no agreement, order or further application made to the court by 6^th March 2023, all claims in respect of the contents of the family home shall be dismissed and such contents shall remain the absolute property of the person in whose possession they are as at that date."

52. Curiously, the applicant said in cross examination that she did not see the consent order before it was submitted. She considered the order to be unfair because of its ambiguities. However, set against that is that she had legal representation at the time of the FDR and the drafting of the order. Her complaint about the way in which the January 2023 order was submitted for approval was something which she set out, I understood for the first time, in paragraph 6 of her statement of 15 December 2023.
53. At or shortly after the time of the FDR, the respondent, with the assistance of his partner, was contemplating the purchase of properties marketed at between £340,000 and £575,000. An email from his partner with links to online property particulars is dated 12 January 2023. It was put to the respondent that he knew that he was going to receive money from his parents to assist him to purchase a property, and the respondent's answer, which I did not understand, is that he did not see the logic in that.
54. There appears to have been a lot of litigation between the parties since the January 2023 order was agreed.
55. One of those rounds of litigation was an application issued by the respondent on 6 March 2023 in relation to chattels, pursuant to the recital to which I have just referred. That was resolved by consent order dated 29 August 2023, which contained another recital which read:

"This order is a final decision in respect of all issues arising from paragraph 10 of the order of 9 January 2023 and of all issues relating to the contents of the former family home."

56. In evidence, the applicant stated that she did not hand over all of the relevant chattels as ordered because she could not find all of them. She further confirmed that she deleted all of the data on the hard drive referred to before she returned it to the respondent.
57. Decree absolute had been pronounced on 15 March 2023.
58. On 27 July 2023, the applicant made an enquiry on an online legal advice forum called Just Answer. That referred to her knowing about information which she had suspected on 16 March 2023, which the applicant confirmed was a reference to what is described in the evidence as "the bank of mum and dad," which was a reference to the advance inheritance.
59. On 23 August 2023, the respondent bought a property at Pound Lane in Poole for £595,000. He told the court that he had selected this particular property because he wanted to buy a forever home, and because he was suffering from ankylosing spondylitis which had flared up. His Form E in June 2022 had not referred to that condition, and nor did the indication of the judge at the FDR. The respondent's evidence about that was that he was "not playing the AS card" at the FDR.
60. The respondent had made enquiries in January 2022 about taking money from the company by way of directors' loan. That appears to be of limited relevance for present purposes save that it shows, in my judgment, that the respondent was investigating, during the life of the financial remedy proceedings, how money might be released from the company.
61. The respondent states that he first viewed the property at Pound Lane on 8 March 2023, and he contacted a broker on 24 March 2023 to enquire about the possibility of taking a large mortgage to fund its purchase. The respondent's mortgage broker gave advice on 11 April 2023 that his mortgage raising capacity would be about £488,000.
62. The document from the broker referred to the respondent having a cash deposit of £150,000 - £200,000. The respondent told the court that, at the time he instructed the broker, he had had in mind declaring dividends from his company in order to support the income requirement for the mortgage lenders. That is supported by an email from the respondent to his accountant on 29 March 2023, and is again consistent with the idea that that he was trying to identify how he could afford the property based on what he had left, namely the company and income from it, after the January 2023 order.
63. The respondent denied that he had created this paper trail in contemplation of receiving monies from his parents or the St Ives Trusts and then being able to reduce his mortgage liability, in order to give "plausible deniability" to his plan.
64. The respondent says that his parents were becoming concerned about his deteriorating health. At around the time he was making enquiries about financial options for the purchase of the Pound Lane property, he says that they suggested for the first time that they would help him. The respondent's parents then made six transfers of £25,000 to him between 7 and 15 April 2023, totalling £150,000, by way of advance inheritance.
65. The respondent said in his written statement that he made an offer for the property at Pound Lane which was accepted on or about 21 April 2023. He revised his mortgage requirement downwards such that the mortgage advanced was £350,000, the mortgage offer having been received on 26 May 2023.
66. On 7 September 2023, the respondent wrote to his accountants to say that the tax return prepared for the purposes of the mortgage offer was not submitted due to incorrect legal advice, and that payments made as dividends would be treated as a director's loan. Those were apparently instructions given after the respondent took advice from the accountants sometime in the preceding two days.
67. The evidence is that the respondent received payments from the St Ives Trusts on 20 October 2023 totalling £250,000, and on 8 December 2023 totalling £25,000. As I have said, his evidence was that his parents decided to sell the property in late February 2023, and that the transaction completed in September 2023.
68. On 15 December 2023, the applicant issued an application, amongst other things, for "reconsideration of the order dated 9 January 2023 in light of previously undisclosed facts." She told the court that that was somehow different to an application to set the January 2023 order aside. I do not see that that can be right.
69. Some of those undisclosed facts appeared to have been different ones to those that are the subject of the current application, and the applicant initially told the court that the undisclosed facts were entirely comprised of her own medical situation. By August 2023, she said that she was not in employment as a result of those health issues, and she wanted the order of 9 January 2023 changed.
70. I was quite surprised by the applicant's oral evidence that her application was limited in that way. She had not misunderstood the question, and she gave evidence very soon after I had dealt with a preliminary issue at the start of the hearing, which was about whether a res judicata point had arisen by virtue of her application in December 2023 having referred to the advance inheritance point raised by her now. I had refused to deal with it as a preliminary issue and my ruling included that I wanted to hear the evidence. I reached the conclusion that it was likely that the applicant was reluctant to admit that she had run the same point prior to the present application.
71. When taken to the point, in paragraph 2 of her statement in support of the December 2023 application, that the respondent's financial situation had not been disclosed, the applicant confirmed that that did refer to what is described in her evidence as "the bank of mum and dad." The applicant told the court that that referred to a cash injection, the source of which she did not know.
72. When asked how she knew of the matters which underpinned her allegation, the applicant told the court that a mutual friend, Gaby Egan, had asked her whether the applicant had seen that the respondent was buying an expensive property with money from "the bank of mum and dad." In the applicant's statement in support of the present application, she says that that was something raised by her friend in February 2023, and that she was aware that the marketing price for the property was £660,000. She told the court that she made no further enquiry of Ms Egan, which seemed unlikely in itself, and Ms Egan has not been called to give evidence.
73. In her December 2023 application, the applicant sought the return of £17,896.10 paid to the respondent, including the £17,000 lump sum, after the January 2023 order was made. Her statement makes it clear that she had paid the lump sum in mid-April 2023, and therefore after she says she had learnt from Ms Egan about the respondent's intended purchase of the property.
74. The application dated 15 December 2023 was subsequently dismissed on 19 December 2023, it appears on paper. It appears that the judge who did so had worked on the basis that the application was an enforcement application made in the wrong way. The applicant did not apply to set that order aside.
75. On 3 January 2024, the applicant then issued a D50K application.
76. On 18 January 2024, the St Ives Trusts were dissolved.
77. In her statement made in support of the present application, the applicant's evidence suggests that she was unaware whether, at the time of the FDR, the respondent would have known that he would receive the advance inheritance money from his parents. That calls into question, in my judgment, the basis upon which the application is made.
78. In the same statement, the truth of which she confirmed in evidence in chief, the applicant said that it was in March 2024, whilst sorting out the home office which had been used solely by the respondent to store his financial and work-related papers at home, that she found the 2009 documents.
79. However, on and after 31 January 2024, the applicant sought legal advice on Just Answer, on the face of it, about the matters giving rise to the specific application now before the court. She told the court that, when she prepared her statement, she had been unable to remember the precise date of her discovery, and that she now recalls that she was having a "New Year's clear out."
80. In her Just Answer posts, the applicant sought very specific advice. For example, on 2 February 2024, the applicant asked whether a beneficiary of a discretionary family trust would have to disclose that fact on a Form E.
81. On 6 February 2024, the applicant stated that she had "just come across the paperwork [in relation to a trust fund] after a clear out."
82. On 8 February 2024, the applicant asked a question about the time limit for setting aside a consent order for non disclosure. The applicant said:

"The only evidence I have is a copy email given to me at the time the trust was set up for my ex and our children but the email is addressed to the settlor from the trustees."

Although that suggests that she had the email at the time the trust was set up, the applicant told the court that she said what she said on the forum "for argument's sake." I did not understand any of her answers to questions about why she gave to those from whom she was seeking legal advice either irrelevant or wrong information. She urged the court to accept that the trust was set up without her knowledge. That might be right, but it was also her evidence that she was aware during the marriage that the children were beneficiaries.

83. On 12 February 2024, the applicant's request for advice included this:

"Not sure if [the respondent] knew or had forgotten their beneficiary status shared with sister and settlors 2 grandchildren, with proof in paper copy email from trustee discovered in family home."

84. On 15 February 2024, the respondent signed a Form E1 in response to the applicant's D50K application. I am satisfied that that document was filed with the court on or about 16 February 2024, and the documents filed with the court reference service of it on the applicant. The applicant's evidence was that, by the time of this Form E1, the respondent had not been notified of the circumstances of her present application.
85. The respondent's document referred to the property at Pound Lane, and gave a value for it of £535,000. I did not understand the respondent's evidence, namely that the mortgage company had valued it at less, about why he stated the value of the property at £60,000 less than he had paid for it. I did not understand either why the document refers to a mortgage balance of £83,109 as well as ongoing mortgage repayments of £3,602 per month, although those were not matters which the respondent was asked about and so I have not factored it into my overall reasoning.
86. The Form E1 also disclosed the existence of a family trust. The respondent said that he was aware that he was a beneficiary of the trust by the time of the Form E1 because he had received distributions from it. His residual interest was valued at £7,500, and he said that his father had given him that information based on a residuary of £15,000 from which he and his sister would benefit. He was unclear as to when he became aware that the St Ives Trusts had already been dissolved, although the letter of 11 March 2024 to which I refer below does provide him with that date.
87. The Form E1 also refers to the respondent's ankylosing spondylitis, which he said was consistent with the medical history in relation to his experiences with that condition since the FDR. It put his income needs at £8,177 per month, and his income for the year of £99,663. The income was made up of £26,435 of salary or self employment income from the company, and dividends of £73,228.
88. In March 2024, the applicant also sought advice on Just Answer about whether she should disclose the grounds of her application to set aside the January 2023 order before accepting a Calderbank offer made by the respondent on her D50K application. I have inferred that the question was asked on Just Answer for reasons which will become clear in a moment. She was advised on the forum to disclose the non disclosure issue before accepting the respondent's offer on the D50K application to ensure fairness. She also asked:

"… can I omit a document from the bundle to the [respondent] but which has been sent to the Court? And does my statement need to be the exact same sent to the Court as it is very detailed and hoped I would not have to show my hand… as it were."

89. The first party/party correspondence about the circumstances of the present application is a letter from the applicant dated 5 March 2024. She asked the respondent to provide "full and frank disclosure of any involvement or interest [he] may have had in the… discretionary trust."
90. On 11 March 2024, solicitors who had acted for the respondent's parents confirmed that the trustees had formally resolved on 3 July 2023 to bring the settlements to an end, and that the trusts were dissolved on 18 January 2024.
91. On 13 March 2024, accountants sent to the respondent a copy of the St Ives Trust deeds.
92. In March 2024, the applicant's D50K application was settled after the applicant accepted the respondent's Calderbank offer. The consent order was signed by the parties on 11 March 2024 and approved by the court on 14 March 2024. The applicant accepted that she was already preparing at that stage to apply to set aside the January 2023 order, and she told the court that she accepted the offer on advice from her solicitors. She had told her solicitors about the non disclosure point before that advice was given.
93. The applicant also told the court that she had not told the respondent or the court of the impending set aside application. Having looked at the documents, it is necessary to be more precise about this because, on one view, it might be thought that that must be wrong because, as I have said, she first wrote to the respondent about it on 5 March 2024. In my judgment, it is likely that the respondent received that letter at about that time because it appears that the correspondence of 11 and 13 March 2024 are responding to questions which he had asked in consequence of having received it.
94. However, what is also apparent from the documents is that the letter of 5 March 2024 about the non disclosure was one of two letters which the applicant sent on that day to the respondent. The other was another letter which stated the applicant's intention to accept the respondent's offer in relation to the D50K application.
95. What was initially somewhat unclear to me, because the hearing bundle did not contain the respondent's offer dated 22 February 2024, is whether the applicant's letter constituted acceptance of it or a counteroffer. That is because she had said:

"I agree to point 5(a) and 5(b) of the offer. Please note that reference to any other part of the offer cannot be accepted for signature."

96. The parties have since kindly supplied me with a copy of the respondent's letter dated 22 February 2024. Having reviewed that, I am satisfied that, although there were other parts to the letter which explained the rationale, from the respondent's perspective, for it, the offer was entirely contained in paragraphs 5(a) and 5(b) of the letter. It therefore follows that the settlement contract was formed when the applicant sent her letter of 5 March 2024.
97. On 27 March 2024, accountants set out in an email to the respondent what distributions had been made from the St Ives Trusts between 2006 and 2019. I have dealt with the information provided earlier in my judgment.
98. On 11 April 2024, the respondent provided a substantive response to the letter of 5 March 2024. He said that he was not aware, when the financial remedy proceedings were ongoing, that he was a beneficiary of the St Ives Trusts. He said that he had made enquiries after receiving the applicant's letter, and supplied copies of the trust deeds and the correspondence of 11 and 27 March 2024.
99. The applicant told the court that she instructed her current firm of solicitors in about April 2024. Their letter dated 19 April 2024 enclosed the 2009 documents, saying this:

"We enclose copies of handwritten notes and correspondence that our client has located within her documentation which refers to the issue of tax relief… These documents were within our client's files and are being returned to you at the earliest opportunity."

The applicant confirmed in her oral evidence that she approved the letter before it was sent, and that the letter meant that the documents were within her possession.

100. In fact, it appears from subsequent correspondence that the 2009 documents may not have been returned with the letter dated 19 April 2024.
101. The applicant's solicitors' letter dated 1 August 2024 confirmed that the respondent's mortgage raising capacity at the FDR was £442,500 at its highest. It made an offer to accept a lump sum from the respondent of £158,246 after producing a number of calculations.
102. The application now before the court was issued on 22 October 2024. The respondent says that this is the seventh round of litigation since the January 2023 order.

Analysis and findings

103. Standing back and looking at the evidence which I have attempted to summarise, I need to express my findings in a fairly linear way. In reality, though, the conclusions I have reached are intertwined and informed by all of the evidence.
104. In my judgment it is entirely unsurprising that, shortly after the FDR, the respondent started to explore his housing situation. The settlement agreed in January 2023 provided for the applicant to be housed in the former matrimonial home, meeting her needs. It must have been contemplated by the parties and the court that, by maintaining the respondent's income from the company, he would have the mortgage raising capacity to enable him to house himself in purchased property if he wished.
105. The former matrimonial home and the company were the principal matrimonial assets within the total of £793,938, excluding pensions. I accept that the consequence of the settlement in relation to the company was that the applicant lost income of £12,141 per year and the potential for earnings from dividends (which she accepted were discretionary), those being tied of course to the ownership of shares, and the principles in V v V (Financial Relief) [2005] 2 FLR 697 then being applicable. However, the parties achieved a clean break.
106. I am unclear where the evidence about the respondent's ankylosing spondylitis really takes the court. It seemed to be suggested that, because the issue was not raised before the FDR, the respondent has raised it since in order to bolster his case in respect of the purchase of the property at Pound Lane. It was apparent from the property particulars provided by the respondent's partner on 12 January 2023 that there were other, cheaper, properties available on the market which would have been likely to have met the respondent's needs, even with any additional needs flowing from the ankylosing spondylitis factored in.
107. In my judgment, it is likely that the respondent was simply trying to consider what he could afford. He referred to the property at Pound Lane being one which had particular appeal to him, and I accept that evidence.
108. The respondent's mortgage raising capacity at the time of the FDR was said by the applicant's solicitors to have been a maximum of £442,500. That is a fairly similar figure to that of £488,000 which the respondent's broker came up with on 11 April 2023. The question is where the substantial deposit needed to buy a property for £595,000 would come from.
109. On the face of it, the £150,000 advance inheritance from the respondent's parents was enough to permit the respondent to buy the Pound Lane property. With the maximum mortgage available, he would have had a maximum fund of £638,000. He paid £595,000 for the property, not the marketing price of £660,000 referred to in the applicant's statement, as she accepts.
110. Because the mortgage broker refers to the likely deposit, it is likely in my judgment that the respondent knew by 24 March 2023 that he would receive the advance inheritance. I doubt that it was much earlier, if he had not viewed the property before 8 March 2023, which is a part of his evidence supported by a contemporaneous document confirming his viewing appointment. I have no reason to disbelieve the respondent's evidence about that issue.
111. The applicant accepts that the advance inheritance was not a matrimonial asset. The height of her evidence is that she heard from Ms Egan in February 2023 that the respondent was looking to buy a property with assistance from "the bank of mum and dad." Ms Egan has not given evidence. In my judgment, it is unlikely that the applicant would have paid, in April 2023, the lump sum due under the January 2023 order if she had already been told about the advance inheritance in February 2023. I can be confident about that in that, in December 2023, the applicant sought the payment to her in the same sum that she had paid to the respondent in April 2023. It is more likely that she learnt about it later. If she is right, on her evidence, that she was told about "the bank of mum and dad" before the respondent bought the property at Pound Lane, that must have been before 23 August 2023: hearing issue (c)(i).
112. In her statement, the applicant invited the court to infer that the respondent would have known, at the time of the FDR, that the advance inheritance would be received, if indeed the money was not already in his account.
113. The money was not already in his account. The bank statements confirm that he received it in April 2023, which is consistent with the respondent's evidence that he had a discussion with his parents at about the same time as he was looking at different ways of funding the purchase of the property at Pound Lane. I accept that I have not received evidence from the respondent's parents either, but I prefer his evidence, not least because it is entirely consistent with the available documentary evidence in March and April 2023.
114. The fact that the applicant asserted that she was told about "the bank of mum and dad" issue in February 2023 is, of itself, of interest. That date is wrong for the reasons I have expressed. When I ask myself why the applicant has put that date forward in her evidence, in my judgment the answer is more likely than not to be because she wished to make the inference that the respondent knew, by the end of January 2023, all the more irresistible. It is more likely to have been a deliberate attempt to mislead than simply a mistake, in my judgment, because the applicant was very clear, for example, about when she paid the lump sum due under the January 2023 order, and that is likely to have been a significant point of reference in her mind.
115. I should say at this stage that I am satisfied that the date when the duty of full and frank disclosure ended was with the approval of the January 2023 order on 31 January 2023, or thereabouts. I do not know when it was sealed, but I anticipate that it was within a few days.
116. In my judgment, the duty did not end on 29 August 2023 when the argument in relation to the contents of the family home ended. The recital at paragraph 10 to the January 2023 order made it clear that any ongoing dispute was limited to one about the contents of the family home. The Form ES2 produced for the FDR makes no reference to the value of chattels other than the camper vans, and I anticipate that the intention of the parties was to achieve a clean break rather than to hold up a resolution of their financial affairs by arguing over the contents of the house. That issue therefore appears to have been carved out for that reason, and the later argument in relation to it does not, in my judgment, undermine the remainder of the agreement. I also anticipate that the parties likely knew what the contents of the home were, and that there was unlikely to be any need for ongoing disclosure about how they were comprised.
117. For those reasons, in my judgment and on balance, the applicant does not prove that the respondent failed to disclose the advance inheritance from his parents by the end of January 2023. I am not satisfied that he knew he would be getting it himself. That disposes of hearing issue (a). The application was speculative, and the applicant lied about when she knew that the respondent's parents had given him the advance inheritance to improve her prospects of success. Even ignoring that dishonesty for a moment, I am not satisfied, taking what I have said together, that she ever had a real prospect of successfully proving the non disclosure in respect of the advance inheritance issue.
118. However, even if I am wrong about that, the applicant cannot be said to have brought her application in relation to the advance inheritance promptly. Even taking her evidence at its highest, the applicant asserted, contrary to my finding, that she was aware of "the bank of mum and dad" issue in February 2023, several months prior to the purchase of the property by the respondent on 23 August 2023.
119. The applicant then delayed until 15 December 2023 to issue her first application in relation to it. That application was struck out. It was, in my judgment as I have already said, an application to set aside the January 2023 order in respect of the advance inheritance issue.
120. As an aside, res judicata was raised as a preliminary issue in these proceedings: hearing issue (e). Although I do not need to determine the argument now, I doubt that strike out by order of 19 December 2023 was the same as a decision which gives rise to an issue estoppel or extinguishes the cause of action under the doctrine of merger because the application was not decided, or judgment given, on the merits. It would have been open to the applicant to apply to set the order aside and have the application heard, rather than her recourse being limited to an appeal.
121. However, the applicant did not seek to set the order of 19 December 2023 aside. There was then a period of further delay until 22 October 2024 when the current application was issued.
122. The delay of some 20 months (on her evidence) or 14 months (on my finding) is a serious breach of paragraph 4.6 of PD18A. The practice direction is there to be complied with. The applicant's actions cannot be considered prompt on any view, given that the applicant herself knew about the need to prosecute her application by December 2023. That point is underlined by what was said in A v B about Rose v Rose, a point which, understandably, counsel found it difficult to argue against in his submissions.
123. The applicant has not provided any explanation for her delay, and I struggle to think of any reasonable explanation, in all the circumstances, for it. The applicant must, on balance, have made an intentional decision not to pursue the advance inheritance point in January 2024 when she issued her D50K application. She did not even reveal the name of Ms Egan until this hearing, which in my judgment is liable to have impacted the respondent's ability to secure evidence in response to the allegation made in a manner which is inconsistent with her duty, under FPR 1.3, to assist the court in ensuring that justice is administered fairly in accordance with the overriding objective in FPR 1.1.
124. In my judgment, for those reasons, this aspect of the applicant's application would also be clearly liable to be struck out, this being hearing issue (d), even if it had not failed on its merits.
125. It follows that the entire application, insofar as it relates to the advance inheritance, was hopeless from the outset. It raises a question in relation to the applicant's conduct of this litigation.
126. That brings me to other issues of her conduct, and the credibility of her evidence, about which I have been concerned. She appears to have been willing, looking at the Just Answer posts in March 2024, to consider showing the applicant one version of her evidence and the court another. Her own evidence was that she did not provide accurate information to the advisers on the same forum, and she now invites the court to accept different evidence from her as being true. She also set out in her statement, adopted in evidence in chief, that the date when she became aware of the 2009 documents was in March 2024, when it is apparent that she was asking questions about the matters relating to the St Ives Trusts issue from January 2024.
127. I struggle to understand how any of that sits easily with an application about the failure to give full and frank disclosure of information.
128. The applicant's case is that the respondent fraudulently withheld information about his beneficial interest in the St Ives Trusts at the time of the FDR. It was submitted that all of the enquiries in March 2023 about ways of funding his purchase of the property at Pound Lane were part of his fraud. As I understand it, that is the central plank of the applicant's case on the intention to withhold the information from her.
129. However, it follows from the findings that I have already made that the dishonesty alleged is not made out. When I ask myself whether it is more likely than not that the respondent was planning in March 2023, some seven or more months before he received the distributions from the St Ives Trusts, to fraudulently conceal from the applicant the manner in which the purchase of a property (which was completed earlier than the date on which he received those distributions) was funded, on the off chance that the applicant at some stage might make enquiries into those matters, in my judgment that is fanciful. Far more probable is that, as I have found, the respondent was simply exploring in March 2023 different ways of being able to afford the property he wanted to buy. Even if he did learn during this period that he would receive distributions from the St Ives Trusts, by that time the financial matters relating to the parties' marriage had already been finally resolved by the January 2023 order.
130. So what did the parties know of the trusts?
131. Although it was submitted that, based on timing of trusts in 2005, it must have entered the respondent's mind that he was a beneficiary because only one grandchild had been born to the respondent's parents by then, the same point could equally be made in respect of what the applicant knew at the time. A was, after all, the child of both parties, and the applicant and respondent both assert that they knew during the marriage that their children were beneficiaries of the St Ives Trusts.
132. The email of 9 May 2020, too, supports the idea that both parties knew that the St Ives Trusts were created for the purposes of the estate planning of the respondent's parents. I did not understand why that, of itself, would mean that the respondent was more likely to know the detail of the trusts than the applicant was. Set against the bare fact that the settlors were the respondent's parents was his evidence that they were a private family and unlikely to reveal the fine detail of their estate planning.
133. It seems to me that the applicant's case hinges on the 2009 documents. The email is the only one of the documents which is dated and which refers to the identity of the beneficiaries of the St Ives Trusts. The problem with the 2009 documents is that the applicant's own evidence in relation to them is internally inconsistent in a number of respects.
134. The first source of evidence about the provenance of the 2009 documents in time is the applicant's Just Answer posts. Those included, in the post of 8 February 2024, the idea that the email had been given to her at the time that the trusts were set up. Of course, the email of 6 May 2009 post dates the date of the trust deeds in 2005, but the email does refer to the absence of any need to change the trusts to include B, who had been born four or five months previously.
135. On 12 February 2024, the applicant said in terms that she had found the email in the family home and that she did not know if the respondent knew or had forgotten about his status as a beneficiary of the trusts.
136. The letter of 19 April 2024 from the applicant's solicitors states that the 2009 documents came from the applicant's documentation. The submission made to me, which in my judgment is a good one, is that the applicant's solicitors would have needed to verify the provenance of the 2009 documents, on the principles in Imerman v Tchenguiz & others [2010] EWCA Civ 908, and so they must have been satisfied that they were not the respondent's documents. They appear to have been dealt with in accordance with Hildebrand v Hildebrand [1992] 1 FLR 244. Indeed, the solicitors returned other documents to the respondent on the basis that Imerman principles might have been engaged.
137. In my judgment, all of that then undermines the applicant's later evidence.
138. Her statement of 14 October 2024 set out that, in March 2024, she found the 2009 documents in the home office. She explained that they were contained in a single file left behind by the respondent. I am satisfied that the March 2024 date was wrong, as the applicant had to accept when taken to the Just Answer posts, and I have already noted that the applicant seemed to give two different answers to the question of whether she had access to the home office as at March 2020.
139. I did not see the logic in the applicant's evidence about why she might have given information on the Just Answer forum which was inaccurate. She was, after all, seeking legal advice, and the accuracy of advice received tends to depend upon the accuracy of the underlying information provided to the adviser.
140. The respondent's evidence was that he had not seen the 2009 documents at the time, and the tenor of his evidence, that the applicant dealt with matters in relation to family finances, albeit non exclusively, was consistent with the applicant's own evidence.
141. Taking those things together, I am not satisfied on balance that the applicant has proved that the respondent had, prior to the making of the January 2023 order, deliberately attempted to conceal either the 2009 documents, or the information in the 2009 documents, from her or the court. In fact, neither am I satisfied that the applicant has discharged the burden of proving that the documents were in the respondent's files as opposed to her own. I find, on balance, that the documents were more likely to have been within her documentation, per her original version of events, rather than the position advanced in the flawed statement of 14 October 2024 and her oral evidence: hearing issue (c)(ii).
142. I accept that the applicant had nothing to gain by failing to disclose the fact of the respondent's beneficial entitlement at the FDR either. However, what her evidence does show, in my judgment, is that she was not sure if the respondent either knew or had forgotten about his beneficial interest in the St Ives Trusts. The height of the evidence is that that interest was referenced in a single document in 2009, some 13 years before the financial remedy proceedings even commenced. The applicant may well have forgotten about it herself.
143. Nothing in the evidence has led me to the conclusion that the respondent's evidence that his parents had first told him of their intention to sell the trust property in late February 2023 is wrong. He received distributions from the St Ives Trusts in October 2023, after the property was sold, and so he must have known by then that he was a beneficiary. The applicant has not discharged the burden of proving on balance that he knew about his status as beneficiary before he likely learnt of it during this period.
144. The applicant's evidence that, as early as August 2022, she understood that the trust property would be sold is inconsistent with her own failure to disclose the respondent's interest in the St Ives Trusts, bearing in mind the findings that I have already made. More important, however, is the evidence from the trustees' solicitors' letter dated 11 March 2024 about when they in fact formally decided to sell the property, namely in July 2023, which lends greater support to the respondent's evidence about the discussions with his parents, in late February 2023, after the FDR, about potentially selling the property, and it then being marketed and sold in September 2023.
145. For those reasons, in my judgment I have reached the clear conclusion that the non disclosure by the respondent of his beneficial interest in the St Ives Trusts before the January 2023 order was made was innocent. The applicant has not proved that the respondent knew about it himself: hearing issue (b). I have reached that conclusion without recourse to the credibility issues I have commented upon in relation to the applicant's evidence. Those would add weight, in my judgment, to the idea that she is prepared to adjust her evidence to suit her case.
146. Of course, as a matter of fact, the respondent was a beneficiary of the St Ives Trusts. It would in any event be necessary, if the applicant is to succeed on her application, for her to show that the non disclosure had a substantial or material bearing on the terms of the January 2023 order.
147. This was a needs case, in my judgment, and the outcome in fact agreed in January 2023 met the parties' needs in the way that I have already described.
148. On behalf of the applicant, it was submitted that it is clear that the amount of the distributions from the St Ives Trusts would have materially affected the outcome. I have disposed of the advance inheritance issue conclusively, but in any event there was no evidence as to what provision may have been made from "the bank of mum and dad" prior to March 2023. I therefore exclude that from my analysis. If one then, hypothetically, factors the £275,000 distributions from the St Ives Trusts into the total assets considered at the FDR, it increases the total assets to £1,068,938. The share of £503,862 achieved by the applicant in January 2023, expressed as a percentage of that total, amounts to 47%. On one view, that is not an unreasonable outcome in any event.
149. However, in my judgment, that is the wrong way of looking at it. That is because the St Ives Trusts were non matrimonial assets. I am not satisfied that it was known at the time of the January 2023 order that the respondent's parents would have made a distribution to the respondent: the trust was discretionary and it still held the property at the time. I have found that the respondent's evidence about the trust property being marketed and sold is to be preferred, and all of that post dated the January 2023 order. On both parties' positions, the respondent was one of a number of beneficiaries, and there is no evidence that the trustees had resolved to make a distribution from the St Ives Trusts in any particular way prior to the point at which the respondent in fact received the distributions in and after October 2023. On the basis of their solicitors' letter, the trustees' formal resolution to sell the property was in July 2023.
150. The outcome of the financial remedy proceedings was that the applicant received, through the January 2023 order, the greater share of the matrimonial assets. That is notwithstanding that the applicant accepted that the value of the company was uncertain to be maintained, and I understand that the respondent had primary care of B.
151. The distributions made by the St Ives Trusts to the respondent after that, when considering overall fairness, in my judgment, all fall to be treated as advance inheritance. There was no need to factor them into the equation in January 2023 in order to meet needs even if, contrary to my findings, it was known that they would be coming. They did not fall to be shared either. It follows, in my judgment, that the failure to disclose the beneficial entitlement in the St Ives Trusts made no material difference to the outcome.
152. I have considered, as a final issue, the promptitude of the applicant's application of 22 October 2024 in respect of the St Ives Trust distributions issue. For much the same reasoning as I gave in respect of the advance inheritance issue, it could be said that the applicant's delay in raising the issue, given my finding that the 2009 documents were in her possession, would be grounds for strike out.
153. However, even if I work on the basis that she had not remembered, before the end of January 2023, that the respondent had a beneficial entitlement to the St Ives Trust property, I still have concern about the timing of her recollection, or even if it were her first realisation, of that fact in January or early February 2024. That is because she was, at the time, pursuing a D50K enforcement application while, at the same time, planning to apply to set aside the very order that she was seeking to enforce.
154. It was fairly submitted on behalf of the respondent that it would be reasonable for the applicant to be allowed a period of time to reflect on the wisdom of pursuing the application to set aside the January 2023 order, and take legal advice about it, before issuing it. However, it was submitted, if she wanted that time, it was incumbent on her to disclose the impending set aside application before compromising the enforcement application.
155. That is important, in my judgment, because paragraph 13.8 of PD9A sets out what the procedure is:

"Only once the ground for setting aside the order has been established (or admitted) can the court set aside the order and rehear the original application for a financial remedy… If and when a ground for setting aside has been established, the court may decide to set aside the whole or part of the order there and then, or may delay doing so… Ordinarily, once the court has decided to set aside a financial remedy order, the court would give directions for a full rehearing to re-determine the original application. However, if the court is satisfied that it has sufficient information to do so, it may proceed to re-determine the original application at the same time as setting aside the financial remedy order."

156. In this case, the present application seeks that the January 2023 order be set aside and a re-hearing ordered. The application therefore had the potential to affect the enforcement sought by reason of the applicant's D50K application.
157. That has the potential to engage the principles in Henderson v Henderson (1843) 3 Hare 100, perhaps most usefully summarised in the era post Johnson v Gore Wood & Co [2002] 2 AC 1 in Aldi Stores Limited v WSP Group plc [2008] 1 WLR 748. Just because a matter could have been raised in earlier proceedings, the fact that it was not does not necessarily render the failure an abuse of process. The court must apply a broad, merits based, approach. It will rarely find that the later action is an abuse of process unless it involves unjust harassment or oppression of the respondent.
158. However, Aldi Stores is also authority for the proposition that an applicant who keeps a second claim up their sleeve while prosecuting the first is at high risk of being found to have abused the court's process. The proper course is to raise the possibility of the second claim with the court so that appropriate case management directions can be given: see also Stuart v Goldberg Linde [2008] EWCA Civ 2.
159. In my judgment, I am satisfied that that is what the applicant should have done in this case. She did not do so. She did not even give the respondent the opportunity to do so, because she accepted his offer of 22 February 2024 at the same time as she first wrote a letter of claim to him about the non disclosure of his interest in the St Ives Trusts.
160. The applicant has not provided any reasonable explanation for why she approached the matter in the way she did. She told the court that she had received legal advice, and we also have the advice from her Just Answer post about the fairness of raising the non disclosure issue before accepting the offer. She appears to have intentionally ignored that advice, and ensured that the respondent was contractually bound to pay her money before then engaging him in another round of litigation, to set aside the order which she had relied upon in her previous application.
161. I am mindful that the applicant's abuse of process and her failure to issue her application promptly are distinct issues: Virgin Atlantic Airways Limited v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited) [2013] UKSC 46. Had I not disposed of the issue of non disclosure of the respondent's beneficial entitlement under the St Ives Trusts on its merits, I would have struck it out pursuant to FPR 4.4(1)(b) and / or (c), which then disposes of the balance of hearing issue (d).
162. For all of those reasons, and in addressing hearing issue (f), I dismiss the applicant's application. Had I not done so, I would have struck it out.

Postscript

163. I circulated a draft of the judgment set out above before today's date. I heard submissions today in relation to ancillary matters and record my decisions below.

Totally without merit

164. It was submitted on behalf of the respondent that the application should be certified as totally without merit, per FPR 18.13. The test is whether the application was "bound to fail:" R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091.
165. I have no real difficulty in reaching that conclusion in respect of the advance inheritance aspect of the application. I have expressed, giving reasons, that it was hopeless from the outset.
166. Contrary to the submissions made on behalf of the applicant, in my judgment, the same applies to the St Ives Trusts aspect of the application.
167. I have made findings that the applicant had the 2009 documents in her possession, which she failed to disclose at the FDR and which she now relies upon. I have also made a finding in relation to the materiality of the distributions on the overall outcome. It appears to be said on behalf of the applicant that, because those were "on balance" decisions, that the application was not bound to fail, notwithstanding that I disposed of the application in a number of different ways.
168. However, it is, in my judgment, necessary to look at the quality of the applicant's evidence in this context. She relied on the 2009 documents, whilst not knowing whether or not the respondent was even aware that he was a beneficiary. The application is on the basis of non disclosure of information which was already in her possession. She has come nowhere near proving that a distribution from the St Ives Trusts to the respondent was on the cards before the January 2023 order was made. Without the evidence to support her application, she nonetheless sought by her application to pull non matrimonial assets into the notional assets for distribution, notwithstanding that she had had her needs met from the order to which she consented after the FDR.
169. For those reasons, I do therefore certify the entirety of the application as totally without merit.

Costs

170. The starting point is that the court may at any time make such order as to costs as it thinks just: FPR 28.1.
171. It is not in dispute that the issues before the court fell outside of the scope of the definition of "financial remedy proceedings" in FPR 28.3(4)(b)(i), so the applicable rule is not FPR 28.3(5). It is common ground that the "clean sheet" rule in FPR 28.2 applies.
172. Under that rule, costs do not automatically follow the event as is often the case in civil proceedings, but equally there is no presumption that there be no order as to costs. It is an order for no order as to costs which the applicant seeks that the court makes.
173. I have reminded myself of the obiter dicta of Wilson LJ in Baker v Rowe [2009] EWCA Civ 1162, in which the court identified that the fact that one party has been unsuccessful and regarded as responsible for the generation of the successful parties' costs may be decisive, even in a clean sheet case. The parties have both referred me to the decision in Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233 in addition.
174. The court has firmly in mind the principles relevant to the exercise of the court's discretion. Those include, subject to the exclusions contained within FPR 28.2, the court's discretion in CPR 44.2. With regard to the decision in M v M [2013] EWHC 3372, I remind myself of the need to consider all the circumstances including those in CPR 44.2(4).
175. The respondent invites the court to assess costs on an indemnity basis. I will come back to that. Assuming that the court determines that the costs be assessed on the standard basis, the factors in CPR 44.4(1)(a), namely that the costs claimed are both proportionately and reasonably incurred, and are proportionate and reasonable in amount. That involves consideration of the factors in CPR 44.3(5) as well as the matters in CPR 44.4(2) and (3). On either the standard or indemnity basis, the court will not allow costs which have been unreasonably incurred or which are unreasonable in amount: CPR 44.3(1).
176. The parties invite the court to summarily assess the costs or, in the alternative, direct a detailed assessment. The court therefore considers whether to summarily assess the costs per CPR PD44 at paragraph 9 and determines that it should, in order to avoid yet more litigation and the attendant costs.
177. The Practice Direction does not preclude summary assessment in cases of more than one day, but instead states that the court should conduct a summary assessment if the hearing is less than one day, absent any good reason not to do so. That is not inconsistent with CPR 47 or PD47.
178. The applicant seeks an order for no order for costs, as I have said. On her behalf it is submitted that the court did not find that the applicant engaged in "lawfare." This is the seventh round of litigation between the parties since the January 2023 order was made, and the applicant told the court in her evidence in terms that she was dissatisfied with that order. I did not examine the substance of the previous litigation in any detail or make findings that those constituted "lawfare," but they provide a context which is important.
179. As I have said, there was pre action correspondence. Before her application was issued, the applicant was fully apprised of the respondent's case and the likely evidence in support of it.
180. I have been taken to the oft cited case of OG v AG [2020] EWFC 52 in terms of the obligation to negotiate openly and reasonably. I have been told that the respondent has made a number of open offers to resolve this application prior to the hearing of this application. The applicant made one offer, on 1 August 2024, to accept £158,246 in settlement of the of the application. That is headed "without prejudice," but the applicant has included it in the bundle and has waived privilege in respect of it.
181. It was submitted on her behalf that the fact that the respondent made the offers he did raised the applicant's suspicions, and that coupled with that the court has raised a question about the respondent, for example, having understated the value of the Pound Lane property on his Form E1. Given that the rules require the parties to negotiate, the former point is not one which takes the applicant anywhere, in my judgment. Whilst the latter point is true, the value of the property at Pound Lane is a peripheral issue when considering the essential ingredients of the legal test to applied on the applicant's application.
182. In my judgment and on balance, I am not satisfied that the applicant brought a meritorious application. I have certified it as totally without merit. It is more than simply that the applicant has not won. As I have set out, the applicant's case has shifted, and she has been disingenuous, misleading or dishonest in the way in which she pursued her speculative application.
183. In many ways, the court in Three Rivers District Council v The Governor and Company of the Bank of England [2006] EWHC 816 (Comm) put it very neatly:

"… where a claim is speculative, weak, opportunistic or thin, a claimant who chooses to pursue it is taking a high risk and can expect to pay indemnity costs."

184. It seems to me that it is important that the applicant in this case both pursued a speculative application and, as I have found, had the knowledge that it was speculative before she pursued it. In other words, it was not just with the benefit of hindsight that the application can be seen as misguided. It is that which, in my judgment, means that her conduct was out of the norm and that there should be an order for costs on an indemnity basis.
185. The applicant invites the court to consider the disparity of the means of the parties: K v K [2016] EWHC 2002 (Fam). However, even if the parties' means are unequal, I do not see why that should entitle a party to behave with impunity. I was referred in submissions to one of the cases relating to costs in children cases. To the extent that it is analogous, having regard to the line of authorities helpfully summarised in C v S [2022] EWHC 800 (Fam), I am satisfied that the applicant's conduct could be said to have been unreasonable and reprehensible.
186. I therefore make an order for costs on an indemnity basis. The issue of proportionality does not then arise.
187. The costs incurred by the parties in terms of solicitors' costs, at the time of hearing last week, was broadly equivalent on each side.
188. The difference between the parties' schedules is in counsels' fees. The respondent claims fees for advice of £9,496 and fees for hearings of £9,750 which include the hearing before DJ Bridger on 10 December 2024 and today's hearing. The applicant's schedule sets out counsel's fees of £4,500 for the two day hearing, making no provision for the hearing in December or today. I understood that the applicant had instructed counsel only a few days before the hearing; that is not meant as a criticism, just a fact.
189. It was submitted that the respondent chose to front load the preparation of his case and seek advice from counsel. In my judgment, he was permitted to do that. I have been told that it took time to go through the evidence. I can well understand that: I have spent a lot of time reviewing the evidence myself, and that was after it had presumably been focused for the purposes of the trial bundle. It is therefore difficult for me to say that counsel's fees were unreasonably incurred.
190. The respondent was criticised for instructing senior junior counsel. I am not sure where that submission takes the applicant. As I have said, the respondent's costs include hearings which the applicant's did not.
191. I therefore summarily assess the costs in the sum claimed of £37,434.60 and, in line with the applicant's request, allow 21 days for payment.

Rule 9.46

192. FPR 9.46(3) sets out:

"Nothing in this rule permits the communication to the public at large, or any section of the public, of any information relating to the proceedings."

193. In this case, the applicant posted information on the publicly available forum, Just Answer. Lawyers, whom one have thought would have been familiar with FPR 9.46 even if the applicant had not familiarised herself with it, then responded. The evidence is that the respondent's partner, when conducting her own internet research, came upon the applicant's Just Answer posts and, in consequence noticed a striking similarity between them and the facts of this case. They were established to be the applicant's posts by making specific enquiry.
194. The applicant submits that she was not in material breach of the prohibition. In my judgment, the fact that that jigsaw identification was achieved, as I have described, tends to suggest that she came perilously close to breach, as was accepted on her behalf.
195. The point is made in this judgment so that others reading it are reminded of the existence of the rule, and the need to exercise a healthy dose of caution when posting on the internet or in communicating about issues being considered in family proceedings in any other public forum.

Transparency and disclosure decision

196. I invited, and have received, submissions in relation to publication of this judgment and anonymisation, having in mind the "intense focus" on relevant human rights in the light of the facts of this case required by Re S (Identification: Restrictions on Publication) [2004] UKHL 47, and re-emphasised relatively recently in Tsvetkov v Khayrova [2023] EWFC 130.
197. I indicated that I proposed to publish this judgment, in line with the principles of open justice generally and the reporting pilot specifically, as an example of the sort of work undertaken in the Financial Remedies Court. Neither party submitted that the judgment should not be published at all, and acknowledged that there are elements of interest in it.
198. On my invitation, the applicant submitted that the parties' names should be anonymised. She refers to the fact that the parties' personal and financial matters are explored within the judgment. The respondent was neutral on that point. Both parties submit that the children's names should be anonymised.
199. The starting point is a presumption in favour of open justice, consistent with Article 10 of the European Convention on Human Rights, and the parties do not themselves have a right to anonymity: R (C) v Secretary of State for Justice [2016] UKSC 2; A v M [2021] EWFC 89. The reporting pilot envisages that parties' names are published in court lists, and to that extent the fact that the parties are engaged in litigation is already in the public domain.
200. Considering the parties' Article 10 rights, it is submitted on behalf of the respondent that that there is a need for him to be able to tell his story, at least in a limited respect. He seeks permission to disclose this judgment and the January 2023 order into extant civil proceedings between the parties under case number L8QZ75G4 and any other proceedings between these parties. The civil claim, of course, would be heard in open court.
201. The applicant submits that the disclosure of the judgment is inappropriate and irrelevant to the issues in the civil claim. It is a claim relating to chattels. I observe that I have referred to claims in respect of chattels in this judgment, and so I do not conclude that it is irrelevant.
202. The applicant also submits that the purpose of disclosure is to bring into issue the applicant's credibility in other proceedings. However, even if that is right, that submission, in a sense, impugns the integrity of the judge dealing with those other proceedings. In my judgment, another judge in another case would be perfectly capable of weighing in the balance the weight to be given to any argument about the credibility of the applicant in this one.
203. For those reasons, I do not see that the Article 6 rights of the parties would be impacted by publication of the judgment, or non anonymisation of the parties, notwithstanding that this hearing was heard in private.
204. Although Section 12(1) of the Administration of Justice Act 1960 does not mention financial remedy proceedings, this case does have, at its heart, the private lives of a family, including two children, all of whose Article 8 rights fall to be taken into account: see K v L [2011] EWCA Civ 550. Publication of the details of this case in a way which identifies them is liable, in my judgment, to impact their right to respect for their private and family lives. Having said that, it is the applicant who has put those matters in issue. I am not, on balance, convinced by the submission that it is necessary to water down the Article 10 rights to protect her Article 8 rights.
205. I do have greater concern for the Article 8 rights of the parties' children. In fact, A is not a child anymore. B is 16 years old, and does not have much of his minority ahead of him. I accept that he could be identified if his parents were named, but it was not submitted by either party that that was liable to impact him in any particular way.
206. When I weigh up the competing human rights, this is a decision at Family Court level which is only likely to be of interest in terms of the work which is undertaken in the Financial Remedies Court or in other proceedings between these parties. When the Article 8 and 10 rights are considered together, in my judgment the proportionate approach is to place greater weight on the principles of open justice, and to anonymise the names of the children but not the parties themselves.
207. It follows from what I have said that I would not object to the judgment being disclosed into other proceedings between the parties. In my judgment, disclosure of the January 2023 order would also be necessary in some circumstances in order to make sense of this judgment, including in respect of chattels. I will give that permission.
208. That concludes this judgment.