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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Rose v Rose [2003] EWHC 505 (Fam) (20 March 2003) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2003/505.html Cite as: [2003] EWHC 505 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		20 March 2003

Mr Justice Bennett:

1. By a summons dated 27 August 2002 Jonathan Rose (to whom, for convenience, I shall refer to as "the husband") has applied to set aside a consent order made by me on 3 August 2001 whereby he was ordered to pay Julia Rose (to whom, for convenience, I shall refer as "the wife") a lump sum of £3,500,000 in full and final settlement of all her claims for ancillary relief, and of any claim she might have under the Inheritance (Provision for Family and Dependants) Act 1975 should the husband predecease her. Any similar claims the husband might have had were likewise dismissed.
2. The wife immediately countered by, on 30 October 2002, issuing her own summons to strike out the husband's summons under Order 18 rule 19 of the Rules of the Supreme Court 1965 and/or under the inherent jurisdiction of the court on the grounds that it was frivolous or vexatious and/or an abuse of the process of the court. It is this summons which is before me. If I dismiss the wife's summons then the husband's summons will be heard at a later date.
3. The history of this case is set out by Thorpe LJ in his judgment in this case ie Rose v Rose [2002] EWCA 208, [2002] 1 FLR 978. I gratefully adopt his recital of the facts.
4. The Court of Appeal's judgment was delivered on 20 February 2002. On 28 February 2002 an interview which the husband gave to The Daily Mail was published. Much was made in it of Mr Morris. As a result Mr and Mrs Innes Gibson, having read the article, got in touch with the husband. The information they gave was then put into affidavits sworn by them on 8 April 2002. What they said can be distilled as follows.
5. Mr Innes Gibson first met Mr Morris in 1996. In 1998 Mrs Innes Gibson in effect paid a hotel bill for Mr Morris by lending him £1,500. Mr Morris did not repay it. In March 2000 Mr Innes Gibson accidentally met Mr Morris. Mr Morris promised to repay. In March he was asked round for a drink to discuss repayment. He came with the wife, who, according to Mr Innes Gibson, were "very much an item" and according to Mrs Innes Gibson "very much a couple".
6. On 7 June 2000 Mr Morris and the wife came to the home of Mr and Mrs Innes Gibson. Mr Morris said that the wife was going to be very wealthy as a result of her (impending) divorce as the husband was the heir to the Glaxo fortune.
7. On 20 September 2000 the Innes Gibsons agreed to meet Mr Morris and the wife in a restaurant in Glossop Street. They were concerned to pick a restaurant where they could not be seen together otherwise the amount of money the wife might receive from a divorce settlement could be prejudiced. At paragraph 13 of his affidavit Mr Innes Gibson says:

"Mrs Rose said she had moved out of the matrimonial home and was now living in a house behind Marks and Spencers. They were very open about their relationship and their plans for their future life together. Nick Morris said that he had put Mrs Rose in touch with his lawyers and that Mrs Rose could expect to receive millions of pounds by way of a divorce settlement by next summer at the latest. They said that they intended to use some of the money to buy a house together in Tuscany with a vineyard, so that they could spend part of the year in Italy growing vines and making wine. Nick Morris said that once the divorce settlement came through he intended to go back to university and do a PhD. Mrs Rose said that the house behind Marks and Spencer that she was living in was cheap compared to what she was used to and that the accommodation was not great. They said that they had to smuggle Mr Morris into the property at night so that no one knew they were living together. If this was known, she would not get as much by way of a settlement from Mr Rose.

8. In December 2000 they all met again Mrs Innes Gibson was reluctant to go to the meeting because it had become increasingly clear Mr Morris was not going to repay the monies he owed her. At the meeting Mr Morris and the wife constantly harped on about their future life together and how they would have a house in Italy. They said they were shortly going on a holiday to Kenya together.
9. On 29 April 2002 the husband's solicitors wrote to the wife's solicitors enclosing copies of the affidavits of Mr and Mrs Innes Gibson. It was alleged on behalf of the husband that the wife had concealed "the true nature of their relationship and their future intention to cohabit" and that the wife had been guilty of fraud. It was said that my order of 3 August 2001 could not stand and must be set aside.
10. On 2 July 2002 the husband swore an affidavit (A21) in support of the application (yet to be issued) to set aside the order of 3 August 2001. The husband alleged that on 15 January 2001 when the FDR hearing was adjourned and again on 3 August 2001, when I conducted the FDR hearing which led to the order I have referred to, the wife "fraudulently and deliberately failed to disclose the true nature of her relationship with the co-respondent and that the petitioner deliberately sought to mislead the court". It is said that if I had known of the matters disclosed by Mr and Mrs Innes Gibson my views as to the quantum of the award and as to whether a portion of it should have been held in trust for the wife would or might have been different.
11. The facts which I now recite (which must be read in conjunction with those set out by Thorpe LJ) are these. In early 2000 the husband engaged the services of a private detective. He obtained evidence that the wife and Mr Morris had committed adultery in the matrimonial home. Mr Morris's unsavoury past, including a conviction for fraudulent trading resulting in an 18 month prison sentence, was unearthed. On 16 March 2000 the husband swore an affidavit setting out those matters.
12. At the (abortive) FDR hearing on 15 January 2001 before a deputy High Court judge, Miss Florence Baron QC, on behalf of the wife, put in written submissions part of which referred to Mr Morris as follows:

"W has a relationship with Nick Morris- she does not live with him or receive financial support from him. She has no intention of marrying him or cohabiting with him in the foreseeable future. The relationship began in about March 2000.

Mr Morris (an old Etonian) has a conviction for fraudulent trading (one count- the circumstances being he underwrote a share offer without having all the necessary funds in place to cover his underwriting). He served a term of imprisonment. He has his own home in Brook Green were he lives with the children of his first marriage (who have chosen to live with him rather than their mother). He currently runs a business importing champagne and another refurbishing properties. His plans are to return to Cambridge in September 2001 to read for a PhD. He is not wealthy (although in the fullness of time he may inherit funds from his mother). His finances are not relevant to W's claims.

The parties became friendly with Mr Morris as a result of his wine business in about January 2000. H considers that Mr Morris suborned W because although the marriage was unhappy she would not have left home "prior to the children growing up if she had not been encouraged to do so".

When the relationship began, H had W followed and had her bedroom bugged (whilst he was away on business) in order to ensure that he had evidence of adultery. [3-4]

H appears to be very bitter that the marriage has ended."

13. It is said by the husband that the wife thereby misled the court by failing to tell her counsel, and hence the court, that she and Mr Morris intended to live together and such would have been relevant in the judicial exercise to be undertaken pursuant to section 25 of the Matrimonial Causes Act 1973.
14. When the adjourned FDR hearing took place before me on 3 August 2001 Miss Baron put in written submissions. In so far as they referred to Mr Morris they differed only in respect of the first paragraph which read:

"W has a relationship with Nick Morris which began in about March 2000- she does not live with him or receive financial support from him. She has no intention of marrying him or cohabiting with him. In recent months, the relationship has cooled."

Otherwise what was said about Mr Morris exactly followed what had been said in January 2001.

The husband was represented by Mr Barry Singleton QC and Mr Lewis Marks QC, very experienced practitioners in the field of ancillary relief litigation. Their written submissions referred to Mr Morris not at all. It is common ground during their oral submissions no reference was made to Mr Morris in any shape or form.

One of the matters that the husband was most concerned about was neatly encapsulated by Mr Singleton in paragraphs 29, 30 and 31 of his written submissions (D 152). The husband contended that the just outcome was either that the wife should have £2.7 million (including her own assets) or £1.2 million (including her own assets) and a life interest in £2.3 million. His primary contention was the latter "as much of the money has come from trust and inheritance it is reasonable that the wife should receive a proportion of the fund on (sic) trust". The money to be put in the trust should be used to house the wife. Those written submissions were referred to and expanded upon orally by Mr Singleton (see for example D 230). My view on that was set out by Thorpe LJ at paragraph 7 at page 981 of his judgment in the Court of Appeal.

15. After the FDR hearing the wife and Mr Morris went on holiday together. The wife then went to Sardinia with the children without Mr Morris, and returned to London in late August where she spent her birthday in his company.
16. It is accepted that the husband quickly discovered all about the wife's holiday with Mr Morris and her spending her birthday with him. Such is clear from the written submissions of Mr Brudenell, counsel for the husband dated 31 August 2001 (D 268), and from the submissions of Mr Mostyn QC (Mr Singleton's successor) placed before the Court of Appeal (see E72 paragraph 7.9.2). In other words one of the reasons why it was said that the husband "withdrew" on 16 August 2001 from the agreement he had made on 3 August 2001 was his "discovery" that by reason of the wife's behaviour with Mr Morris after 3 August 2001 the information to the court on 3 August 2001 that her relationship with Mr Morris had "cooled" was untrue and that he and the court had been misled.
17. It is plain to me from paragraphs 40-44 inclusive of the judgment of Thorpe LJ that the Court of Appeal rejected the husband's argument that the material to which I have just referred justified a departure from the order of 3 August 2001. The husband was then, either expressly or impliedly, seeking to persuade the Court of Appeal that the wife's alleged non-disclosure of her "true" relationship with Mr Morris was a factor in upholding the decision of Coleridge J of 19 October 2001. As I understand it, from reading the judgment of Thorpe LJ, the Court of Appeal had none of that argument.
18. I now turn to what is the husband's case as to non-disclosure put forward by Mr Scott QC in his submissions to me. The wife did not disclose her true intentions to the court in January 2001. In the middle of December 2000 Mr and Mrs Innes Gibson said that the wife and Mr Morris were talking about their future life together and how they would have a house in Tuscany. By early August 2001 the statement that their relationship had "cooled" could not have been true as the wife then went on holiday with Mr Morris and spent her birthday with him. If what Mr and Mrs Innes Gibson have said had been known on 3 August 2001 the husband would have been in a position to strengthen his argument that the fund for the wife's housing should be put into trust and thus that the court might well have expressed a different view. Further, had the matter proceeded to a full hearing fixed for November 2001 then the matter could have been explored in depth, the husband would have been in a much stronger position on the "trust" issue, and thus a different order to that made on 3 August 2001 might have been made.
19. I pressed Mr Scott to tell me what order the husband would now seek were the order of 3 August 2001 to be set aside. He told me, on express instructions from the husband who was present in court, that as "matters now stand" (Mr Scott's own words) the size of the award would not be challenged but the husband would seek to persuade the court that the house which the wife purchased for £1.83 million should be placed in trust with the wife having a life interest. The husband would not seek to have placed in trust any part of the Duxbury fund.
20. The husband's reasons for such a stance, Mr Scott told me, are that the wife had formed a relationship with Mr Morris, a conman, that she had lied about the relationship and that she cannot be trusted to be a proper steward of what is in effect the husband's family's money. The wife is likely to form other unsuitable relationships and thus there is a high risk that she will dissipate or squander her assets.
21. The uncontroverted evidence from the wife is (1) her relationship with Mr Morris ended in March 2002, (2) she purchased her present home for £1.83 million, (3) £1.1 million was placed into a Canada Life International bond and those assets are managed by SG Hambros, (4) as at October 2002 there was a further £100,000 on deposit with SG Hambros and (5) that some £350,000 was spent on refurbishing the house (see the wife's affidavits and exhibits of 20 November 2002 and 19 February 2003 at A39 and 70 respectively). In my judgment there is no evidence of dissipation or squandering. Further, Mr Scott conceded that no house had been purchased by the wife in Italy.
22. Miss Baron's submissions are contained in her written submissions which she developed orally. She defined three issues: (1) whether the husband should be permitted to continue in his quest to set aside a consent order which was patently fair; (2) whether the husband had produced sufficient prima facie evidence of material non-disclosure; (3) whether the husband's application should be struck out as an abuse of the court's process or should be dismissed on the basis that the court has an inherent duty to filter out any application which has no real prospect of success.
23. Miss Baron referred me to Order 18 rule 19 of the Rules of the Supreme Court 1965. So far as civil cases are concerned this order has been consigned to the legal archives since April 1999. Now by virtue of Rule 3.4(2) of the Civil Procedure Rules 1998 the court may:

"strike out a statement of case if it appears to the court:

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) there has been a failure to comply with the rule, practice direction or court order."

Further under Rule 24.2 the court may give summary judgment against a claimant on the whole of a claim or on a particular issue if

"(a) it considers that

(i) the claimant has no real prospect of succeeding on the claim or issue; or

(ii) the defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial."

However, in family cases the applicable rules are the Family Proceedings Rules 1991 SI1991/1247. Those rules contain no provisions similar to Order 18 rule 19 of the Rules of the Supreme Court or to Part 3 or Part 24 of the Civil Procedure Rules 1998. However, by Rule 1.3(1) of the FPR 1991 the Rules of the Supreme Court shall continue to apply with the necessary modifications to family proceedings in the High Court and county court, unless, of course, there is a relevant provision in the FPR 1991. Thus Order 18 rule 19 and/or the inherent jurisdiction continue to provide the family court with the power to strike out applications.

24. After Miss Baron had made her submissions, during which she referred to a number of authorities which either deal with or contain helpful dicta about, the powers of the family court to control or filter out unmeritorious applications or applications unlikely to succeed, Mr Scott submitted that I must rigorously confine myself to the ambit of the powers conferred by Order 18 rule 19 and/or under the inherent jurisdiction, as interpreted by the authorities set out in the notes thereunder, in which the authorities referred to by Miss Baron find no place. In effect it was submitted that I must blindfold myself to what the House of Lords and the Court of Appeal had said in the authorities cited by Miss Baron.
25. The overriding objective under Part 1 of the Civil Procedure Rules 1998 was adapted for ancillary relief cases with effect from 5 June 2000, see Rule 2.51B of the Family Procedure Rules 1991. Under Rule 2.51B(3) the court must seek to give effect to the overriding objective when it exercises any power given to it by the ancillary relief rules or "interprets any rule", which, in my judgment must include Order 18 rule 19 and the inherent jurisdiction. Rule 2.51 B( 1) provides:

"The ancillary relief rules are a procedural code with the overriding objective of enabling the court to deal with cases objectively."

Sub-rule (2) sets out guidelines for dealing with cases justly and includes:

"(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

Thus Miss Baron submitted that the court must see to it that the parties' resources are not wasted in fruitless applications. The resources of the state are finite and the courts should not be clogged up by cases with no prospect of success.

26. The authorities to which Miss Baron referred me are Barder v Barder (Caluori Intervening) [1987] 2 FLR 480 HL, Harris v Manahan [1997] 1 FLR 205 CA, Livesey (formerly Jenkins) v Jenkins [1985] FLR 813 HL, P v P (Consent Order Appeal Out of Time) [2002] 1 FLR 743, and Shaw v Shaw [2002] EWCA 12, [2002] 2 FLR 1204.
27. In Livesey v Jenkins Lord Brandon of Oakbrook at the end of his speech at page 830 said:

"I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside a order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund."

Lord Hailsham of St Marylebone LC agreed with Lord Brandon (as did the other Law Lords) and said at page 815:

"I would also wish to underscore the warning with which my noble and learned friend is concluding his speech. Consent orders which effect a clean break between former spouses are, when there has been full and relevant disclosure, much to be encouraged, and, properly negotiated, greatly reduce the pain and trauma of divorce They are, therefore, not lightly to be overthrown."

In Barder Lord Brandon, with whom the other Law Lords agreed, said at page 493:

"The question of leave to appeal

My Lords, the question whether leave to appeal out of time should be given on the ground that assumptions or estimates made at the time of the hearing of a cause or matter have been invalidated or falsified by subsequent events is a difficult one. The reason why the question is difficult is that it involves the conflict between two important legal principles and a decision as to which is to prevail over the other. The first principle is that it is in the public interest that there should be finality in litigation The second principle is that justice requires cases to be decided, so far as practicable, on the true facts relating to them, and not on assumptions or estimates with regard to those facts which are conclusively shown by later events to have been erroneous."

Having reviewed certain authorities Lord Brandon on page 495 continued:

"My Lords, the result of the two lines of authority to which I have referred appears to me to be this. The court may properly exercise its discretion to grant leave to appeal out of time for an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed."

During the course of his judgment in Harris v Manahan, with which Sir Thomas Bingham MR and Evans LJ agreed, Lord Justice Ward said at page 224:

"This is the public interest that there must be some end to litigation. The point is made by Lord Wilberforce in The Ampthill Peerage [1977] AC 547, 569:

"English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes.... Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book... For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud.... But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."

In his conclusions Ward LJ said at page 225:

"(3) If the leave of the court is necessary, then the strict controls suggested by Barder v Caluori should be rigorously enforced.

(4) The requirement that the appeal or rehearing would be 'certain or very likely to succeed' assumes special significance. Only in the most exceptional case of the cruellest injustice will the public interest in the finality of litigation be put aside."

Finally, in Shaw v Shaw Thorpe LJ said at 1216:

"(i) Happily the majority of disputes as to the division of assets and income following decrees of divorce and judicial separation are compromised either by mediation or negotiation or, after the issue of proceedings, at or as a consequence of the financial dispute resolution (FDR) hearing. For the small percentage that remain ,the judge's conclusion after the contested trial should be final. Of course there is a right of appeal, which in some cases may not be exercised without prior permission. An appeal, albeit perhaps necessary to correct error or to address an unfair result, is nevertheless a misfortune for the family in that it increases costs and extends the duration of conflict. Thus there is added requirement for finality at the conclusion of the appellate proceedings. The residual right to reopen litigation is clearly established by the decisions in Livesey v Jenkins and Barder v Caluori. But the number of cases that properly fall in either category is exceptionally small. The public interest in finality of litigation in this field must always be emphasised."

28. I am entitled to strike out the husband's application under the court's inherent jurisdiction, if it is right so do to. It seems to me to be quite unrealistic to say that a family court, when acting under Order 18 rule 19 (1) (a)-(d) and/or under the court's inherent jurisdiction, cannot apply the authorities to which Miss Baron referred in order to achieve a just result. If, strictly speaking, Order 18 rule 19 (1) sits uneasily with the authorities I have referred to, then I see no reason why the authorities cannot, and every reason why they should, be applied when the court is exercising its inherent jurisdiction. In my judgment it is absolutely essential in ancillary relief cases that the court should be able to put a stop to applications seeking to reopen matters already decided by a court, whether by consent or after a contested hearing, if the court is satisfied that no useful purpose will be served by reopening the matter. I therefore propose to apply them.
29. I have already referred to that passage in the judgment of Thorpe LJ in Shaw where he said that the number of cases that are likely to be reopened are "exceptionally small". The question I have to decide is whether the instant case is, in reality, one of them.
30. In my judgment Miss Baron is correct in submitting that the operative date re non-disclosure is 3 August 2001. It is then that the court made its order. Mr Scott did not seek to controvert that submission.
31. As at 3 August 2001 the relationship between the wife and Mr Morris had been continuing for some 19 months, a fact that was well known to the husband. On 3 August 2001 the wife, through her counsel, told the court that the relationship was continuing, but that it was of a lesser intensity than formerly. The husband was deeply suspicious of the wife's assertion that the relationship had "cooled". Nevertheless that feeling of mistrust found no expression at all at the FDR hearing on 3 August 2001. Indeed in the light of his deep mistrust the husband nevertheless went ahead and settled the case and consented to the order which involved him in paying an outright lump sum, ie none of which was in trust. The husband was at liberty to have refused to settle, to go forward to the final hearing in November 2001 and there to cross-examine the wife on her relationship with Mr Morris. He chose not to do so.
32. It is submitted by Mr Scott that on 3 August 2001 the husband knew nothing of the conversations recounted by Mr and Mrs Innes Gibson. I agree. He did not. It is further submitted that I must take the conversations that Mr and Mrs Innes Gibson had with the wife and Mr Morris at face value. In fairness to the wife it should be said that she accepted that she and Mr Morris met Mr and Mrs Innes Gibson as they describe, but the thrust of their evidence is denied. For the purposes of this hearing I agree that I must take the evidence of Mr and Mrs Innes Gibson at face value. Nevertheless, the expressions of intent by Mr Morris and the wife were just that, expressions of intent, and were made at the very least some eight or nine months before 3 August 2001. Further, it is said that the wife's association with Mr Morris after 3 August 2001 is prima facie evidence that the relationship had not "cooled", and that the wife was lying when she said on 3 August 2001 that it had. It must be remembered it was the wife who told the court on that day that her relationship with Mr Morris was continuing, albeit at a lesser intensity. Her going on holiday in August was confirmation, if such were needed, that their relationship was indeed continuing but it could hardly be said to be evidence that she was lying when she said it had "cooled". Indeed by March 2002 the evidence is that the wife's relationship with Mr Morris was over, the husband has no evidence to controvert that. In my judgment there is no evidence that is likely to persuade a court that the wife is guilty of non-disclosure as at 3 August 2001. Furthermore, I think it most unlikely that the court would have made an order different to that made on 3 August 2001 even if it had had in front of it the evidence of Mr and Mrs Innes Gibson.
33. If the husband's application to set aside is permitted to go forward to a hearing, given the pressure on the lists it is most unlikely to be heard before early 2004. There is no evidence to suggest that the wife is, or is likely to, dissipate or squander any part of her fortune. The court at any further final hearing is likely to be faced with the position (i) the wife has continued to be prudent with her assets and (ii) her relationship with Mr Morris will have been over for nearly two years. Even if a court were minded to find the wife had been guilty of non-disclosure in August 2001, why should the court put the wife's housing fund, represented by the house in which she now lives, into trust for her lifetime? There is always the possibility that the wife may again take up with a conman. But that is a hazard which is present, to a greater or lesser extent, when a spouse receives a substantial settlement of cash and/or property after divorce. It hardly lies in the husband's mouth to assert that the wife's housing fund now should be put into trust, given that at a time when the wife was in a relationship with a conman, ie August 2001, he nevertheless agreed to pay her an outright lump sum free of any trust restrictions. Further, the Court of Appeal were not impressed with the husband's seeking to resile from his agreement on the 3 August 2001 on any basis referable to Mr Morris. In my judgment the court would be utterly unlikely to make the order the husband seeks. In my judgment such an outcome is a non-starter.
34. Thus I conclude there are no grounds available to the husband to set aside a consent order 3 August 2001. In my judgment his application is doomed to failure.
35. My conclusion makes it unnecessary, strictly speaking, to consider the submission on behalf of the wife that the husband delayed in launching his application to set aside. But in deference to the submissions of Miss Baron and Mr Scott I ought to make my views known. In my judgment the delay between 3 August 2001 and 27 August 2002 speaks for itself.
36. It must be remembered that the husband was asserting as early as August 2001 that one of the reasons for his resiling from the agreement on 3 August 2001 was his "discovery" of the wife's conduct with Mr Morris immediately after 3 August 2001. Yet he did not then seek to set aside the order on the ground of the wife's non-disclosure. It is true that on 2 October 2001 the husband had to undergo emergency, major heart surgery. He left hospital two weeks later. Some period of time can thus justifiably be accounted for on that score. But it must be borne in mind that he was always advised by counsel and solicitors of the highest skill and repute.
37. Mr Scott submitted that time should not run against the husband from a point earlier than when Mr and Mrs Innes Gibson contacted him. I disagree. Miss Baron was correct in submitting that the issue of the wife's veracity and non-disclosure had arisen in mid to late August 2001 upon the husband discovering the wife's movements with Mr Morris after 3 August 2001. That, after all, must be the husband's position on his own evidence. If he and his advisers thought that there was a prospect of success to set aside the order, that was the time to strike, not a year later.
38. I have been shown the relevant inter-solicitor correspondence between 29 April and 27 August 2002, a period of four months. On 10 May 2002 the wife's solicitors told the husband's solicitors that any application by the husband to set aside the order of 3 August 2001 would be met by an application to strike it out. On 1 July 2002 the husband's solicitors told the wife's solicitors that they were "now" instructed to issue the application. They sought to gain the wife's agreement that she would not take any point on the procedure to be adopted by the husband. On 3 July the reply from the wife's solicitors was that it was up to the husband how he proceeded. On 5 July the husband's solicitors said that they would issue proceedings "by way of a Claim Form to the Queen's Bench Division". On 9 July the wife's solicitors sought to steer the husband away from that rather strange course of action, by suggesting an application should be made in the Family Division. They reiterated that an application to strike out would follow. On 12 July the wife's solicitors reassured the husband's solicitors if an application was made in the Family Division "no procedural points will be taken". On 23 August the husband's solicitors enclosed his application to set aside.
39. It was appropriate for the husband to send Mr and Mrs Innes Gibson's affidavit. But once the wife's solicitors had made their position plain on 10 May there was no need to wait before issuing the application. It took a month and a half for the husband to instruct his solicitors to proceed and very nearly two months thereafter to actually start proceedings.
40. But, in essence, it is the totality of the lapse of time in this case from August 2001 to August 2002 which is a wholly unreasonable time to take to issue an application to set aside. Thus the husband's delay is an additional reason why he should not be allowed to proceed any further.
41. The husband's application will be struck out.