DH v RH (No 6) (Application to Set Aside) [2025] EWFC 175

[2025] EWFC 175

IN THE FAMILY COURT

Venue SITTING AT THE ROYAL COURTS OF JUSTICE

Case No BV20D01752

Courtroom No. 39

Venue Royal Courts of Justice

Date Thursday, 8 th May 2025

Strand

London

WC2A 2LL

Before

THE HONOURABLE MR JUSTICE MACDONALD

B E T W E E N:

RH appeared in person

DH was not in attendance

JUDGMENT

(Approved)

This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Between

DHClaimant

RH (No 6) (Application to Set Aside)Defendant

INTRODUCTION

[1]I deliver this ex tempore judgment in a matter that once again comes before the court in what are now very long-running financial remedy proceedings, between RH who I shall refer to for the sake of convenience as “the husband”, and DH, who I will refer to as “the wife”. The final decision in this matter was made as long ago as 24 May 2024, and the matter has now been running on for some 12 months beyond the final hearing, without the order I made on that date, as amended under the slip-rule on 3 June 2024, having been implemented.

[2]The wife has not complied with the final order dated 24 May 2024, as amended under the Slip Rule on 3 June 2024. In particular, her non-compliance has included, but is not limited to, the implementation of property transfers required to allow the parties to benefit from the assets that were awarded to them by the court. Indeed, as I shall come to, the wife has actively frustrated the implementation of the order across a period of over a year.

[3]The final order, as amended, provides, as is clear from the net effect schedule contained in the final judgment, that the wife is to receive some £5.4M (£6.2M including pension) and the husband to receive some £4.8M (£5.7M including pension). The wife received, therefore, the greater share (52%) after the deduction of mortgages, costs and tax. The court structured its order such that the tax would be borne equally by the parties, if they could not agree tax mitigating measures.

[4]Overall, were the wife now to cooperate with the implementation of the court’s final order as amended, she would benefit from £6.2 million of matrimonial assets and would have more than sufficient funds for her housing provision, living expenses and subsistence.

[5]The final order also contained provisions providing that the applicant’s claims for secured periodical payments orders, periodical payments orders, lump sum orders, property adjustment orders, pension sharing orders and pension attachment orders, should be dismissed and that she would not be entitled to make any further application in relation to the marriage for an order under the Matrimonial Causes Act 1973, s.23(1)(a) or (b), and would not be entitled on the respondent’s death to apply for an order under the Inheritance (Provision for Family and Dependants) Act 1975 s.2.

BACKGROUND

[6]Following the handing down of my judgment, the wife’s initial application for permission to appeal was made to this court and denied by me on 29 April 2024. The wife then applied to the Court of Appeal for permission to appeal. On 5 December 2024, the Court of Appeal stayed the parts of my order relating to the transfer of real property, pending the determination of the application for permission.

[7]As is often the case with the wife’s approach to litigation, she had not served the husband with notice of her application for permission to appeal or her grounds for appeal. However, subsequently, the permission application documents were brought to the attention of the husband. Alexis Campbell KC, who represented the husband at the final hearing, prepared the document for submission to the Court of Appeal responding to the application for permission.

[8]On 23 December 2024, the Court of Appeal dismissed the wife’s application for permission to appeal. All grounds were dismissed by the Court of Appeal although, as I will come to, during the course of dismissing the application for permission, Moylan LJ made a number of observations in relation to the judgment concerning this court’s treatment of the issue of tax and suggested that the wife may have a remedy pursuant to Section 31F(6) of the Matrimonial and Family Proceedings Act 1984, and rule 9.9A(2) of the Family Procedure Rules 2010. I shall return to these matters later.

[9]The wife is now said by the husband to have applied to the Court of Appeal to reopen her appeal pursuant to CPR Rule 52.30, by an application dated 7 February 2025, although it is not yet clear, at least to this court, where that application stands in the Court of Appeal process.

[10]A hearing was listed in the Central Family Court before his Honour Judge Ashby, on 14 February 2025, to consider an application by the husband in accordance with paragraph 27(g) of the final order, as amended, for the relevant transfer of documents dealing with real property, to be signed by a judge so as to give effect to the final order. That application was adjourned and is one of the applications that is now before this court today.

[11]In dismissing the wife’s application for permission to appeal, Moylan LJ observed as follows, with respect to the question of tax. “The only other matter I consider separately is the wife’s contention that the judge failed to take into account the US tax consequences of the division of the US real estate assets. I can, indeed, find no express reference to this tax in the judgment, although in paragraph 54 the judge refers to his approach to “to the tax consequences of the respective positions advanced by the wife and the husband” and in paragraph 89 he refers to the “tax liability assigned to” each of the properties. There are also references in paragraphs 109 and 110 to tax. Further, it does not appear to be an issue that the wife raised with the judge when asking him for permission to appeal. In addition, in his Response which I directed the husband to provide, it is contended that the judge’s award did take into account the issue of tax on the transfers of the various properties. The Court of Appeal is not the right forum in which to determine this factual dispute. If the wife is right that the judge, by mistake, omitted to take into account the incidence of tax on the property transfers effected by the order, as she asserts (and I make it clear that I give no indication as to the merits of her contention), the remedy available to her is to apply to the judge (pursuant to section 31F(6) of the Matrimonial and Family Proceedings Act 1984, and Rule 9.9A(2) of the Family Procedure Rules 2010). Accordingly, this issue is not one which justifies the grant of permission to appeal”.

[12]Pursuant to these observations made by Moylan LJ in his order dismissing the wife’s application for permission to appeal, the wife applied on 13 February 2025 to set aside the final order of 24 May 2024. The wife has, over the course of the past number of months, also issued a number of other applications, again often without bringing those applications properly to the attention and notice of the husband. In November 2024, the wife issued an application to commit the husband. On 6 February 2025, the wife made an application to enforce maintenance payments under an order made in July 2023. On 18 February 2025, the wife issued an application for maintenance pending pursuit. On 4 April 2025, the wife applied for what she termed a “hardship order” without notice to the husband. I dismissed that application on 9 April 2025 as being totally without merit.

[13]Whilst the Court of Appeal suggested the wife may have grounds for an application to set aside on the basis set out in the passage quoted above, the wife’s set aside application is primarily based on her appeal grounds, all of which were dismissed by the Court of Appeal, although her application to set aside does deal, tangentially, with the tax point.

[14]Pursuant to the wife’s D11, dated 12 February 2025, she seeks to a set aside on the basis of “wrong tax computations, wrong valuations and impact of the LLC fraud & perjuries of IRS tax returns from 2020 to 2024”. Specifically, the wife asserts that:(a) The husband committed fraud by withholding a bank account from the Metropolitan Bank of New York, which received joint rental revenue from the New York properties. The wife says this is a matrimonial asset which was not included in the order;

(b) The husband has committed perjuries of LLC IRS tax returns in 2020, 2024, and perjury of LLC annual reports filed with the Wyoming Secretary of State;

(d) Real property was undervalued;

(e) The final order, as amended, is unilateral and drafted by the husband and his counsel, with the drafts not shared with the wife;

(f) The court did not properly consider the tax consequences on the wife of the division.

[15]In respect of the question of tax, the position that was before the court at the final hearing in 2024 is accurately set out in the note provided to the Court of Appeal by Ms Campbell KC, dated 11 December 2024. Ms Campbell KC’s note makes the following points, which describe the position as to tax that was before the court, when it made its final decision:(a) The wife filed her initial tax evidence in 2021;

(b) In response, the husband provided detailed evidence of tax payable on transfer of real estate on 27 July 2022, 9 November 2022, and 12 November 2022;

(d) The husband’s advice specifically dealt with the parties’ respective tax status and means of avoiding, deferring and mitigating tax;

(e) The wife was ordered to consider the husband’s advice and agreed or define the tax issues;

(f) The wife repeatedly ignored multiple orders by this court, that she instruct her tax advisers to liaise with the husband’s tax advisers, to endeavour to agree or narrow the tax issues;

(g) In direct contradiction to the court’s directions, in March 2023 the wife specifically instructed her tax advisors not to engage with her husband or his tax advisers.

(h) The court made orders at six separate directions hearings, to give the wife an opportunity to identify issues and adduce single joint expert evidence on tax. The wife failed to comply with any of the directions made.

[16]I pause to note that, following the final hearing and the delivery of judgment, I delivered a separate judgment dealing with the question of costs, which sets out in detail what the court was satisfied was the wife’s serial disobedience of case management orders, the cost consequences of which are set out in that judgment:(a) The wife only attempted to adduce tax evidence obtained on a unilateral basis at trial, as contained within her Section 25 statement, which was served out of time on the second day of the trial. As detailed in the cost judgment, this was in breach of the pre-trial review directions. The court refused to admit this evidence;

(b) Tax liabilities, including US tax liabilities, were included in the ES2 filed by the husband at the final hearing. The wife, through her legal team, did not engage in the drafting of the ES2 and did not file any figures to submit to this court. As a result of the wife’s litigation conduct, this court accordingly only had the figures in respect of tax provided by the husband on the ES2. In light of the wife’s position, the court was only able to proceed on that basis;

(c) All real property is currently held in the joint names of the parties. The US tax advice produced by the husband, provided schemes for the parties to avoid, defer and mitigate tax by transfers between them. Contrary to the wife’s assertions, tax was at the centre of her husband’s case and was fully reflected in the ES2 and the net effect schedule adopted by the court, as is clear from the final outcome in the judgment;

(d) The order, provided for the transfer of the real property between the parties to achieve a broadly equal share of marital assets on a net basis, taking into account the incidence of tax. That approach enabled the parties to work together to mitigate most, if not all, of the US tax included in the net effect schedule and this was the intention of the court;

(e) If the parties were unable to agree transfers and reach agreement to mitigate the US tax, the order provides for a default position, namely that the properties are to be sold. In the event of a sale, as the properties are jointly owned, the expert evidence before the court at the final hearing was that each party would pay 50% of the US tax, calculated on the basis of the ES2 and the net effect schedule. The parties would suffer US tax on an equal footing, irrespective of their tax status. This ensured that the tax burden, by default, would be shared equally.

[17]In those circumstances, the wife’s assertion in her grounds of appeal that what she termed “the husband’s draft order” left her alone as the only party with the tax burden, was simply incorrect.

[18]The wife, for this hearing, has produced no new evidence regarding the tax position and as I have noted prior to the final determination before this court, had failed to comply with multiple case management orders requiring her to deal with the issue of tax.

[19]Within the context that I have summarised, the husband also now has a series of applications before the court.

[20]First, an application dated 18 March 2025, by which he seeks to rely on the three statements of evidence. Those statements relate to the execution of the documents required to transfer properties in New York and Wyoming. Second, an application to have the property transfer documents signed by the court, pursuant to paragraph 27(g) of the final order, as amended, in the absence of the wife willing to cooperate. Third, an application dated 26 March 2025 for the pronouncement of Decree Absolute.

[21]After the close of business yesterday evening, the wife emailed my clerk seeking an adjournment of today’s hearing on medical grounds. She has not attended the hearing this morning. At 12.41am this morning, the wife emailed the court with an application to adjourn, with appended a letter from a treating clinician. The grounds for the application to adjourn comprise what the wife contends was a severe mental health crisis in February 2025, the effects of which she says she is still suffering from, to the extent that she is not able to attend this hearing on the basis that she has “a severe mental health emergency”. The letter that the wife provides in support of her application to adjourn today’s hearing is from her treating consultant psychiatrist. In the letter, the doctor states that the wife is suffering from a:

“...mental health crisis. [The wife] has been experiencing significant levels of agitation and poor sleep, which have been exacerbated by the stress of her current court case. Specifically, she reports great difficulty processing certain aspects of the proceedings, particularly regarding the evidence presented to her that she perceives as untrue.”

[22]The letter from the wife’s treating psychiatrist is dated 26 March 2025 and there is no more up-to-date information, confirming the matters asserted by the wife in her application to adjourn. In particular, there is no evidence that the wife is at present having a “severe mental health emergency” preventing her from attending the court today. Furthermore, at no point does the treating psychiatrist suggest in the letter dated 26 March 2025, that the wife is not fit to attend the hearing, but rather states as follows:

“Given these circumstances, we would like to enquire if there is an advocacy service or any other appropriate support that can be made available to assist her in hearing and giving evidence at the hearing. Such support could ensure that she is able to fully engage with the proceedings in a manner that is fair and conducive to her wellbeing”

[23]In determining the issues that now fall before the court, I have had the assistance of submissions from the husband in person. The husband has also filed a unilateral bundle for this hearing, containing documents that the court requires for its purposes.

RELEVANT LAW

[24]As far as the law is concerned, there are a number of legal principles that the court has to consider in dealing with the applications that are now before it, starting with the question of when it is appropriate to proceed in a party’s absence.

[25]The law governing proceeding in the absence of a party is usefully summarised by Cobb J in the case of Sanchez v Oboz

[2015] EWHC 235 (Fam)

at [5]. Whilst that case relates to committal proceedings, I am satisfied that the factors set out by Cobb J are instructive in considering an application to adjourn, where the refusal of that application will result in the court proceeding in the absence of one party. The factors set out by Cobb J for consideration are as follows:(a) Whether the respondent to the application has been served with the relevant documents, including the notice of the hearing;

(b) Whether the respondent has had sufficient notice to enable her to prepare for the hearing;

(d) Whether by reference to the nature and circumstances of the respondent’s behaviour, she has waived the right to be present;

(e) Whether an adjournment would be likely to secure the attendance of the respondent, or at least facilitate their representation;

(f) The extent of the disadvantage to the respondent in not being able to present her account of events;

(g) Whether undue prejudice would be caused by the applicant by any delay;

(h) Whether undue prejudice would be caused to the forensic process if the application were to proceed in the absence of the respondent; and

(i) The terms of the overriding objective (FPR 2010 r 1.1), including the obligation on the court to deal with the case “justly”, including doing so “expeditiously and fairly” (r.1.1(2)), and taking “any…step or make any…order for the purposes of…furthering the overriding objective” (r.4.1(3)(o).

[26]With respect to the wife’s application to set aside, the wife pursues her application having regard to the observations made by the Court of Appeal when refusing permission. As set out by the Court of Appeal, that application is governed by s.31F(6) of the Matrimonial and Family Proceedings Act 1984, which provides as follows with respect to proceedings and decisions:

“(6) The family court has power to vary, suspend, rescind or revive any order made by it, including – (a) power to rescind an order and re-list the application on which it was made, (b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and (c) power to vary an order with effect from when it was originally made.” (a) power to rescind an order and re-list the application on which it was made, (b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and (c) power to vary an order with effect from when it was originally made.”

[27]Rule 9.9A(2) of the Family Procedure Rules 2010 further provides, in respect of an application to set aside a financial remedy

[28]The grounds on which Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 may be used, were considered by Mostyn J in CB v EB

[2020] EWFC 72

, in which he observed at [55]:

“…the set aside power in section 31F(6) was not a brand new break with the past. It did not usher in a brave new world. It was no more than a banal replication of a power vested in the divorce county courts from the moment of their creation in 1968. That power had been confined by the law to the traditional grounds for decades.”

[29]The traditional grounds are those set out in L v L [ 2006] EWHC 956 (Fam) at [34], where Munby J (as he then was), summarised the situations in which the set aside may occur and trigger such a review, namely:

“(i) if there has been fraud or mistake: de Lasala v de Lasala; (ii) if there has been material non-disclosure: Livesey (formerly Jenkins) v Jenkins; (iii) if there has been a new event since the making of the order which invalidates the basis, or fundamental assumption, upon which the order was made: Barder v Caluori [1088] AC 20,[1087] 2 FLR 480; (iv) if and insofar as the order contains undertakings: Mid Suffolk District Council v Clarke [2006] EWCA Civ 71, [2006] All ER (D) 190 (Feb); (v) if the terms of the order remain executory: Thwaite v Thwaite [1082] Fam 1, (1981) 2 FLR 280 and Potter v Potter [1990] 2 FLR 27.”

[30]Practice Direction 9A at paragraph 13.5 states:

“An application to set aside a financial remedy order should only be made where no error of the court is alleged. If an error of the court is alleged, an application for permission to appeal under Part 30 should be considered. The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges. The grounds include (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made.”

[31]Finally, in relation to the law as far as the husband’s application to sign documents is concerned, Section 39 of the Senior Courts Act 1981 provides as follows with respect to the power of the court to execute an instrument:

“39. Execution of instrument by person nominated by the High Court. “(1) Where the High Court or family court has given or made a judgement or order directing a person to execute any conveyance, contract or other document, or to endorse any negotiable instrument, then, if that person – (a) neglects or refused to comply with the judgment or order; or (b) cannot after reasonable enquiry be found, that court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that the negotiable instrument shall be indorsed, by such a person as the court may nominate for that purpose. (2) A conveyance, contract, document or instrument executed or indorsed in pursuance of an order under this section shall operate, and be for all purposes available, as if it had been executed or indorsed by the person originally directed to execute or indorse it.” “(1) Where the High Court or family court has given or made a judgement or order directing a person to execute any conveyance, contract or other document, or to endorse any negotiable instrument, then, if that person – (a) neglects or refused to comply with the judgment or order; or (b) cannot after reasonable enquiry be found, that court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that the negotiable instrument shall be indorsed, by such a person as the court may nominate for that purpose. (2) A conveyance, contract, document or instrument executed or indorsed in pursuance of an order under this section shall operate, and be for all purposes available, as if it had been executed or indorsed by the person originally directed to execute or indorse it.”

DISCUSSION Proceeding in the Wife’s Absence

DISCUSSION

[32]Dealing first with the question of whether the court should proceed in the absence of the wife, in circumstances where she makes an application to adjourn this matter. I am satisfied that the application to adjourn should be refused. The consequences of that application are that the court will proceed today in the absence of the wife at this hearing, to determine both her application to set aside the order of 24 May 2024, as amended, and the husband’s application for the court to sign the documents required to implement that order.

[33]I deal with that application for an adjournment by the wife, by reference to the factors set out in Sanchez v Oboz (supra), in the circumstances where I am satisfied that those factors cover the issues that the court is required to address when coming to a reasoned determination of the wife’s very late application to adjourn this hearing and where disallowing the adjournment will mean the court proceeds in her absence.

[34]Dealing first with whether the wife has been served with the relevant documents, including the notice of hearing. I am satisfied that the notice of hearing and the husband’s applications have been served on the wife via the email address she has used throughout the various applications brought before the Family Court, in accordance with Family Procedure Rules 2010 at rules 6.7A and 6.13. The wife has not been willing to provide any other postal address for service and in those circumstances, it was appropriate for her to be served with the notice of hearing and the husband’s applications by that means. Her own application, of course, was filed and issued by her with this court.

[35]With respect to whether the wife has had sufficient notice for her to enable to prepare for the hearing, I am satisfied that the wife has had ample notice to prepare for the hearing, not least because this hearing has already been adjourned once due to my being indisposed by reason of matters beyond my control. The wife was well aware of that hearing and the matters that would be dealt with, which is evidenced by amongst other things the fact that she requested special measures be put in place to allow her attendance.

[36]As to whether there has been any reasons advanced by the wife for her non-attendance, the wife has advanced reasons, as I have already set out, by providing to the court and the husband an application this morning. However, whilst the wife contends those reasons constitute a medical emergency, the evidence on which she relies relates to alleged matters that occurred in February and March 2025, with no evidence to support the contention that she is in difficulty in attending this hearing today by reason of those matters.

[37]Further, in addition to the letter from her treating clinician, dated 26 March 2025, it is clear from the letter supporting the application, that the treating clinician does not consider, or at least did not consider at that date, that the wife was not able to attend court, just that she required support in order to do so. As I have noted ahead of the hearing, the wife had required special measures and the court is fully able to implement such special measures pursuant to Part 3A of the Family Procedure Rules 2010, to ensure that she is on an equal footing.

[38]Since the date of the letter from her treating psychiatrist, and the wife asserting a mental health crisis in February and March 2025, it is also of note that the wife has been in regular correspondence with the court regarding this litigation and has issued further applications in respect of the litigation. Further, it is said by the husband that the wife is also currently actively engaged in litigation that is ongoing in the United States. In those circumstances, I am not able to place significant weight upon the reasons advanced by the wife for her non-appearance and her application to adjourn.

[39]With respect to the question of whether the wife has waived her right to be present, as will be clear from the matters I have already summarised, the wife’s very late application to adjourn this hearing stands at the end of a very long line of what I am satisfied is deliberately obstructive behaviour, designed to hinder the implementation of the final order, as amended, made as long ago as May 2024 by this court. Within the context of the wife’s longstanding conduct, I am satisfied that it is reasonable to conclude that the wife intended her non-attendance today, as indicated by a very late application to adjourn, to further frustrate attempts to implement the final order, as amended, of the court. This conclusion is reinforced by the fact that legitimate avenues for disputing the final order have been exhausted by the wife, she having been refused permission to appeal the order and having made an application to set aside that, for reasons I shall come to, was almost bound to fail in the absence of any fresh evidence.

[40]As to whether an adjournment would be likely to secure the attendance of the wife, or at least facilitate her representation, in the context of the long-running efforts of the wife to frustrate the implementation of the order made by the court, I have no confidence that an adjournment would be likely to secure the attendance of the wife, or at least facilitate her representation.

[41]With respect to the extent of the disadvantage to the wife in not being able to present her account of events it is, I acknowledge, disadvantageous to the wife not to be here to present her case to the court. That said, the position of the wife is plain both from the papers in respect of her application to set aside and her approach to the implementation of the property orders that are the subject of the husband’s applications. In those circumstances, I am not satisfied that proceeding in her absence will result in any significant disadvantage to the presentation of her case.

[42]With respect to whether undue prejudice will be caused to the husband by any delay in an adjournment, I am satisfied that the husband will be caused manifest prejudice by any further delay in the resolution of these proceedings, through the implementation of the final order, as amended, made by the court, in respect of which order the Court of Appeal, on 23 December 2024, refused permission to appeal. This court divided the parties’ matrimonial finances a year ago. Since that time, the husband has not been able to access the vast majority of the assets awarded to him by reason of the wife’s conduct. By way of example, a further complication arising from the failure of the wife to cooperate with the implementation of the final order of the court, is that the mortgages currently secured against the properties in Wyoming have been required to be replaced, in order to avert the prospect of a forced sale. Further, this is the second time that the husband has been required to take an international flight into this jurisdiction in order to attend a hearing. It would not be appropriate in those circumstances to further adjourn, for a third time, the matters that are now before the court.

[43]With respect to whether undue prejudice would be caused to the forensic process if the applications were to proceed in the absence of the wife, given the matters I have set out, I am satisfied that there is no undue prejudice that would be caused to that process. The wife has provided copious documents to the court. Whilst often verbose and rambling, the wife’s arguments are tolerably clear from those documents, both her application to set aside and the husband’s application for the documents to be signed. Her position would not be materially improved by adjourning this matter to permit her attendance.

[44]Finally, I must have regard to the terms of the overriding objective in the Family Procedure Rules 2010 at Part 1, to deal with cases justly, expeditiously and fairly. A year after the court made its final order, and in the context of the serial frustration by the wife during the period of implementation of the order, it is in my judgment entirely inconsistent with the terms of the overriding objective, to grant a further adjournment to the wife. In the circumstances, I refuse the wife’s application for an adjournment and I am satisfied that it is appropriate to deal with the applications now before the court.

Wife’s Application to Set Aside

[45]Having refused the wife’s application for an adjournment and determined that it is appropriate to proceed in her absence, I now deal with the wife’s application to set aside the final order made on 24 May 2024, as amended on 3 June 2024.

[46]As I have referred to, the wife applies to set aside the final order, as amended, on a number of grounds:(a) The husband committed fraud by withholding a bank account from the Metropolitan Bank of New York, which received joint rental revenue from the New York properties. The wife says this is a matrimonial asset which was not included in the order;

(b) The husband has committed perjuries of LLC IRS tax returns in 2020, 2024, and perjury of LLC annual reports filed with the Wyoming Secretary of State;

(d) Real property was undervalued;

(e) The final order, as amended, is unilateral and drafted by the husband and his counsel, with the drafts not shared with the wife;

(f) The court did not properly consider the tax consequences on the wife of the division.

[47]The wife has already, via her appeal, explored many of these contentions in her effort to demonstrate the court made an error. It was only following the rejection of those arguments that she contended there were grounds to set aside the order, that contention arriving nearly nine months after the final order, as amended, was made by this court. It is apparent from the documents that she relies on in support of her application that, to a significant extent, the set aside application she now pursues is simply a reformulation of her grounds of appeal to the Court of Appeal, contending that the decision of this court was wrong. As I have noted, the Court of Appeal rejected that contention and refused her permission to appeal application

[48]The wife makes a number of sweeping accusations of fraud against the husband. At times, via email to a large number of judges, Members of Parliament and other public figures, the wife has made allegations of corruption and fraud against a much wider range of individuals, including myself and counsel involved with the final hearing. The wife does not articulate in clear terms, at any point, what the fraud she alleges is comprised of or the evidence she relies on to support those allegations of fraud. The wife has likewise provided no further reliable evidence in relation to the allegation that the husband committed perjury. The court has responded on a number of occasions in relation to the wife’s allegations regarding the Oxus shares and again reiterates, as is plain from the judgment of the court, that that asset was dealt with on the basis that those shares did not constitute matrimonial property.

[49]There is likewise no evidence to demonstrate that the real property was undervalued at the time the court made its final order. To the best of my recollection, there was no such submission at the final hearing. Indeed, the wife refused to cooperate with the joint instruction of valuers in relation to those properties and failed to propose a valuation of her own at the final hearing, leaving the court, once again, to rely on the ES2 provided by the husband.

[50]There is, I am satisfied, no evidence that the final order, as amended, was unilaterally drafted by the husband and his counsel and that the drafts were not shared with the wife. In any event, the court is responsible for its final orders, including checking that those orders reflect accurately the decision the court has made. I am satisfied that the court was given a proper opportunity to, and did, check that the final order, approved in May 2024 and amended in June 2024 last year, reflected the decision the court had made as set out in the final judgment.

[51]With respect to tax, in the context of the wife having failed repeatedly to comply with orders of the court to provide tax information ahead of the final hearing, it remains the case that the wife has brought no fresh tax evidence in support of her application to set aside, nor has she set out what new or different evidence she suggests that court would require at a hearing, nor set out in what manner the final order would be adjusted on her case in relation to tax.

[52]As far as tax is concerned, for the reasons I have summarised, and as are summarised in Ms Campbell KC’s reply to the Court of Appeal, the position in relation to tax was as clear at the final hearing as it could be in the context of the wife’s persistent disregard for the case management orders made to try and ensure tax information was available. The court accordingly considered the tax issues and consequences on the basis of such evidence as it had and that evidence was fully factored into the decision of the court. It cannot now be suggested by the wife that the court proceeded on a mistaken basis in relation to the tax in circumstances where she failed to take advantage of all of the opportunities provided to her in relation to the provision of tax information regarding her case.

[53]In those circumstances that I have outlined, I am satisfied that the wife’s application to set aside should be dismissed. As identified by the Court of Appeal, at the heart of the application to set aside is the contention that the court was mistaken or the victim of non-disclosure in relation to the tax consequences for the wife of the division of the assets that it arrived at. That argument is simply not sustainable. As I have said the court dealt with, as far as possible, that issue in the context of the wife having serially failed to comply with all case management orders, designed to ensure the court had before it the tax evidence on which she sought to rely.

[54]The wife’s claim that the court was the subject of fraud, mistake or non-disclosure with respect to tax obligations, or the tax implications of the property transfers, is hopeless and plainly forms no proper basis for a set aside application. Notwithstanding the wife’s serial failure to comply with case management orders in respect of tax information, the court had before it evidence as to the tax position and factored that in to the structure of the final distribution. Within this context, I am satisfied that none of the limited grounds under which a final order may be set aside, namely fraud or mistake, material non-disclosure, a Barder event or executory terms not yet carried out, as set out in L v L (supra) are met in this case and the wife’s application to set aside must be dismissed. The strong public policy of respecting the finality of sealed orders should, in particular, carry weight in a case where such criticisms that the wife makes in respect of the information before the court at the final hearing were entirely of her own making.

Husband’s Application for Documents to be Signed

[55]Turning next to the husband’s application for various documents to be signed to effect the property transfers, as provided for in the final order, as amended. This court anticipated at the final hearing that the wife may not cooperate in implementing the final order, as amended.

(g) which provided as follows:

“In default of prompt cooperation as directed pursuant to paragraph 27(d)-(f) above, documents which require the other party’s signature to give effect to paragraphs 21-24 above, the non-defaulting party may apply on paper to the Family Court sitting at the Financial Remedy Court in the Central Family Court for a District Judge to sign the relevant document pursuant to section 39 of the Senior Courts Act 1981, together with a brief explanation of the default, a copy of this order and the judgment of Mr Justice MacDonald dated 18 April 2024.”

[56]The husband now applies for the court to exercise the powers stipulated paragraph 27(g) of the final order, as amended, and available to the court pursuant to s.39 of the Senior Courts Act 1981, to authorise the documents to be signed on the wife’s behalf.

[57]As I have noted, the application has been served on the wife, via the email address she has used throughout the various applications to the Family Court. For the reasons I have given, I am satisfied it is appropriate to proceed with the husband’s application in the absence of the wife. I grant the husband’s application for permission to file further statements of evidence which are intended to assist the court in understanding the nature of and need for the documents that the court is invited to sign in lieu of the wife’s cooperation.

[58]The statement of the husband sets out the efforts already made to put the property transfers into effect, including the proposals he has sought to make to the wife to progress matters and details the further steps that the husband has taken and been advised to take, in order to effect those transfers. I accept that evidence. The husband has written to the wife many times seeking her cooperation in implementing the final order of 24 May 2024, as amended.

[59]To date, the wife has not been willing to cooperate with any of the matters that require her input. This extends to the orders that provide for payments or property transfers to the wife. Her behaviour in that regard has been almost entirely self-defeating in the circumstances where the wife has repeatedly communicated with the court, and repeatedly issued unmeritorious applications, alleging she is impecunious, unable to afford food and accommodation. To repeat, the value of the assets awarded to the wife in the final order of May 2024, as amended, amounts to some £5.3M (£6.2M including pension). Notwithstanding her assertions of impecuniosity, the wife continues, for reasons which are opaque to the court, to fail to cooperate with the implementation of the final order that would permit her to realise the assets awarded to her by the court.

[60]As the properties to be transferred are located in the State of New York and the State of Wyoming, the documents that require execution in order to effect the transfers differ from those used in this jurisdiction. The second statement relied on by the husband provides evidence of the requirements in New York for the documents to be signed by both parties to effect a transfer and exhibited to the statement, are those documents which require signatures to effect the transfers directed by the court.

[61]Finally, the third statement relied on by the husband provides evidence of the situation regarding restructuring the financing secured against the Wyoming properties, an issue that will need to be addressed to effect the court directed transfers. As explained in the third statement, a further complication arising from the failure of the wife to cooperate with the implementation of the final order, as amended, is that the mortgages currently secured against those properties require to be rearranged or replaced. The third statement deals with the prospect of refinancing with the current mortgagee and alternative lenders.

[62]In context of the matters that I have set out in this judgment, I am wholly satisfied that the wife has actively and deliberately sought to frustrate the implementation of the final order, as amended, made by this court in May 2024. Over the twelve months since the order was made, the wife has been actively engaged in a number of endeavours, all intended to resist the implementation of an order properly made but with which she does not agree. The wife has not signed any document necessary to implement the order. She has not complied with any of the transfer mechanisms set out in that order, despite the husband’s repeated written invitations and offers to work with any professional of her choosing. There is, as I have noted, evidence before this court that the wife is now seeking to frustrate the process via litigation in the jurisdiction of the United States.

[63]In the light of the evidence before the court and the continued refusal of the wife to engage in the implementation of the order following the dismissal of her application for permission to appeal to the Court of Appeal, and in circumstances where I am satisfied it is not appropriate to set aside my order of May 2024, I am satisfied that without the court using its powers under s.39 of the Senior Courts Act 1981, the wife will continue to refuse to implement the order of 24 May 2024, as amended on 3 June 2024. In those circumstances, I am satisfied it is appropriate for the court to sign the various documents in place of the wife, to allow the implementation of the court’s order to proceed.

Wife’s Ancillary Applications

[64]Finally, as I have noted, the wife has made a number of other applications before the court over the past number of months. Namely, a contempt application made against the husband in November 2024, an application made to enforce the order made in July 2023 for maintenance pending suit and a further application for maintenance pending pursuit made on 18 February 2025. As I have noted, the court has also over the past number of months refused, as being totally without merit, a number of other applications that have been issued by the wife.

[65]There is no proper basis on which to advance a contempt application of the type issued by the wife in November 2024 before this court. There is no evidential basis for such an application. More fundamentally, however, it is an application that has been made in the Court of Appeal proceedings, number CA-2024-001342. In the circumstances, this court has no power to deal with it.

[66]I am further satisfied that the other applications of the wife each must be dismissed as being totally without merit. The application to enforce the July 2023 maintenance pending suit order, issued on 6 February 2025, seeks to enforce an order that is no longer itself in force and the arrears under which were remitted by the court in the final order of May 2024. The wife’s application for permission to appeal that aspect of the final order was dismissed by the Court of Appeal.

[67]Finally, the application dated 18 February 2025 for a maintenance pending pursuit order, is likewise totally without merit. As I have set out, the final order contained provisions providing that the wife’s claims for secure periodical payments orders, periodical payments orders, lump sum orders, property adjustment orders, pension sharing orders and pension attachment orders, all stand dismissed. In the circumstances, this court has no jurisdiction to make a maintenance pending suit order at this stage.

[68]Finally, I am satisfied that the wife must bear the costs of each of the applications before the court. She has failed both in her set aside application and the husband has succeeded in this application for the court to sign the documents in the circumstances I have described. Further, given that the applications arise in the context that I have described, namely the persistent poor litigation conduct of the wife over a number of months, in the context of litigation conduct that the court has already had cause to penalise for the reasons set out in the cost judgment of last year, I intend to make the cost order on an indemnity basis. I am satisfied, having regard to the factual context in which the cost order arises, that the indemnity basis for costs is entirely appropriate in this case. End of Judgment. Transcript of a recording by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof

order

“(2) A party may apply under this rule to set aside a financial remedy order where no error of the court is alleged.”