Material Non-Disclosure in Divorce Financial Provision Cases: A Legal Analysis, Lecture notes of Communication

Download Material Non-Disclosure in Divorce Financial Provision Cases: A Legal Analysis and more Lecture notes Communication in PDF only on Docsity! Neutral Citation Number: [2014] EWCA Civ 314 Case No: B6/2013/2214 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM GUILDFORD COUNTY COURT HHJ Raeside MK03D00837 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/03/2014 Before : LORD JUSTICE PATTEN LORD JUSTICE McFARLANE and SIR STEPHEN SEDLEY - - - - - - - - - - - - - - - - - - - - - Between : N Appellant - and - N Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Glaser and Mr Phillip Blatchly (instructed by Gans and Co Solicitors Llp) for the Appellant Mr Malcolm Hay (direct access) for the Respondent Hearing date: 31st January 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Judgment Approved by the court for handing down. NvN Lord Justice McFarlane : 1. The issue in this appeal relates to the circumstances in which a court may, on the grounds of material non-disclosure, set aside an order for financial provision following divorce. 2. The issue in the case relates to an order for periodical payments to be paid by a former husband to his former wife. The order was made on 24th November 2009 and provided for periodical payments at the rate of £1,000 per month until 1st April 2012. The order included a bar under Matrimonial Causes Act 1973, s 31 (7B)(c)(i) [“MCA 1973”] preventing the wife making any further application to extend the requirement to make payments beyond that final date. 3. The husband had, in the past, commanded a high salary in employment in various institutions in the City. He had, however, ceased work in September 2008 citing depression and stress consequent upon the continued litigation between these former spouses over money and arrangements for the children. A key finding in the judgment supporting the periodical payments order of November 2009 was the judge’s acceptance that the husband was unable to work due to depression and that, at that time, he had a minimal earning capacity. However the judge contemplated that he might choose to work in the near future and that it was likely that he would return to well paid employment when the litigation was completed. 4. On 28th November 2011 the wife issued an application to set aside the 2009 order on the basis of the husband’s material non-disclosure. That application was determined some 18 months or so later by the judge who had made the original order. Having reviewed evidence of the husband’s remuneration from business activities and work during the first half of the three and a half years following her original order, the judge concluded that there had indeed been material non-disclosure to her in 2009, and to two appellate courts subsequently, sufficient to justify setting aside the original November 2009 order. She therefore gave consequential directions for a subsequent hearing to re-determine the wife’s periodical payments application. The husband now appeals to this court against the judge’s determination of July 2013 setting the original order aside for material non-disclosure. Detailed history 5. Having set the scene, it is necessary now to descend to a lower level of detail to explain the background circumstances. The couple met in l986 and subsequently married in 1993. There are two children, a boy, now aged 19 and a girl, now aged 16. The precise date of separation is contentious, but it had apparently been achieved by the year 2002. The husband petitioned for divorce in June 2003 with decree nisi being pronounced in January 2005. 6. So far as financial matters are concerned, a consent order was made on 11th January 2005 which, so far as maintenance is concerned, included a provision for periodical payments in the wife’s favour at £1,000 per month for a fixed five year term. At the time was husband was earning in the region of £125,000 gross per annum and was paying maintenance for the children via the Child Support Agency. Judgment Approved by the court for handing down. NvN Longmore and Stanley Burnton LJJ) set aside the order of HHJ Rylance re-instating DJ Raeside’s original September 2009 order. 15. Following a failed application to the Supreme Court for permission to appeal, the wife issued the present application to set aside the 2009 order on the basis of the husband’s alleged material non-disclosure in November 2011. By that time District Judge Raeside had become HHJ Raeside and the wife’s application was listed before that judge on 11th January 2013 for directions. On that occasion the court directed the husband to provide disclosure in respect of all work carried out for clients by him between January 2010 and June 2011 and any sums paid or received by him as a result of such work, together with all invoices, written terms of engagement and other material documents. The husband did not accept the court’s jurisdiction to make such an order for disclosure, but did not appeal the direction and made some partial disclosure in purported compliance with it. 16. The application to set aside itself was heard for half a day before HHJ Raeside in April 2013. No oral evidence was taken and the matter was dealt with on the basis of submissions. Judgment was formally handed down on 10th July 2013 and, as I have indicated, the judge set aside the 2009 order on the basis of material non-disclosure. The alleged material non-disclosure 17. The material non-disclosure, as found by the judge, falls into a number of categories determined either by the chronological point at which information was available and/or information that was either not given, or misleadingly given, to the first instance court, or HHJ Rylance on appeal, or at the Court of Appeal hearing in 2011. a) Non-disclosure prior to sealing of 2009 order 18. Pursuant to the judge’s order made in January 2013 requiring disclosure, the husband provided copies of e.mail traffic flowing between himself and the director of a City headhunting firm in the autumn of 2009. Prior to that date, the e.mail trail shows the date of the previous e.mail communication between these two men as being March 2006. The 2009 communication opens on October 28th with the following e.mail from the headhunter: “Hi Rob, How are you and are you still on this mail? Spoke to E last week and he said you’re in Spain? Any interest in getting back in the mkt in Lon-NY or elsewhere? Hope all’s OK whatever you’re up to! Thanks, Paul” 19. On 1st November 2009 the husband replied as follows: “Hi Paul, Judgment Approved by the court for handing down. NvN It is a bit early for me to jump back in at the moment. I am thinking maybe next year. I am repairing an old farmhouse I bought here some time ago. Builders are putting a new roof on right now so I should be set for the winter. I’ve been staying in a beat up old camper van, not comfy but it’s convenient. Drop me a line in the New Year and I’ll give you and [sic] update. Cheers. Rob” 20. On 17th November 2009 the headhunter responded: “Hi Rob, I’m in the process of agreeing a search from somewhere I think you’d be very interested in! The role is exactly your type of opportunity as well and could lead to a very interesting future! Could you be tempted to hear more…they don’t expect a start until Q1 2010 anyway! Thanks, Paul” 21. The husband responded on 23rd November 2009 in these terms: “Hi Paul, If you think it’s up my street then it doesn’t hurt to listen…I understand UBS are thinking of employing someone to do a similar role to what I did but that it would now span the business groups as the quants have been re-organised into a single entity. There is talk that it would be at MD level and that’s certainly tempting. On the other hand I really want to finish the place here and get my ex-wife’s appeal out of the way, otherwise it would be too distracting. What can you tell me about the role? Kind regards, Robert” 22. The court order encapsulating the judge’s decision on maintenance was formally made on 24th November 2009, the day after that email. 23. Before the judge in 2013 the husband accepted that there was a duty to maintain disclosure of relevant information up to the date upon which the court order was made. He therefore accepted that the fact that he had been contacted by the Judgment Approved by the court for handing down. NvN headhunter and had responded in the terms described in the e.mails should have been disclosed. His case, however, is that the content of these e.mails is entirely compatible with the judge’s findings and, in particular, the finding that the husband would indeed return to work and do so at a high level of remuneration once the litigation was behind him. b) Misleading information given during appeal process 24. The wife’s appeal against the 2009 order was heard by HHJ Rylance on 14th May 2010. The circumstances with respect to disclosure at that hearing are best summarised in paragraph 8 of HHJ Raeside’s 2013 judgment: “Before me it was accepted on behalf of the husband that at the time of the appeal hearing before HH Judge Rylance the husband was in fact working and that the court was given misleading information about that. Indeed, it is now accepted that the court was also misled in that it was put positively before HH Judge Rylance that [the husband] was too ill to work, when he was in fact doing so. It is not accepted that the sums earned were large, but it is accepted that the court and [the wife] were misled.” 25. HHJ Raeside went on to make findings as to the husband’s position between the date on which her order was made in November 2009 and the appeal hearing in May 2010. In summary, communication with the headhunters continued, but did not directly result in employment. On 1st March 2010 the husband formed a company the initials of which are SA. Between April and July 2010, the husband worked on a freelance basis for a company called Ayva Consulting receiving a total of some £6,500 together with a number of “interest free loans” of £30,000. It follows that the husband’s counsel’s assertions to the judge that “at the moment [the husband] is not working for health reasons” were wholly misleading and that the judge, and the wife, will have been misled. I should make it clear that there is no suggestion at all that counsel had any knowledge that the statements he was making on behalf of the husband were anything other than a description of the true position. 26. The husband then appealed the order of HHJ Rylance. That appeal was heard by the Court of Appeal in June 2011. Between May 2010 and July 2011 HHJ Raeside found, largely on the basis of disclosure made to her by the husband, that the husband’s work position was as follows: a) He was “employed by” his company SA from 1st October 2010 onwards. Payslips demonstrated payments of £1,000 net per month. b) In addition, the husband was billing the same headhunter firm for “software consultancy” for at least 6 months in 2010/2011 with SA charging out the work at £850 per day. c) In addition to straightforward remuneration, SA made a pension contribution on behalf of the husband of £37,500 in early 2011 and he received a dividend from SA in November 2010 of nearly £20,000. Judgment Approved by the court for handing down. NvN week from February 2011. The judge records that, as a result of her dependence upon the CSA as the sole means of achieving child maintenance, “the wife has had to spend huge amounts of time and energy in fighting for adequate provision for the children”. She concludes, in the light of the disclosure of remuneration that had by then occurred, “it now appears that the wife’s litigation and pursuit of child support was wholly justifiable, and it has had a major impact on her earning capacity; another matter that the court would have taken into account at the hearing in November 2009”. 33. At paragraph 22, having described the focus of the 2009 hearing as being upon the question of any change in circumstances since the original consent order was made the judge concluded as follows: “Without the finding that the husband was unable to work due to the stress of the wife’s unreasonable pursuit of litigation, the court would be faced with a very different factual matrix; those facts may well have led to a longer period of maintenance before a clean break; or a larger lump sum payment as the price of a clean break; or a higher sum payable by way of periodical payments.” 34. The judge’s final conclusion is at paragraph 23: “I am, of course, reluctant to set aside an order made over three years ago. The parties have spent huge amounts of time and energy at the trail, and pursuing the appeal as far as seeking leave to the Supreme Court. The court’s valuable resources have bee used in order to provide the parties with a final order. The court should strive towards certainty and finality, and should strive for early resolution and disposal of cases. However, I have come to the view that if I allow the order of November 2009 to stand then there will have been a miscarriage of justice.” 35. The judge therefore set the order of November 2009 aside and went on to make consequential directions for the further litigation of the issue of maintenance. The arguments on appeal 36. Before this court, Mr Michael Glaser, leading Mr Phillip Blatchly, makes the following basic submissions: a) The test on an application for setting aside on the basis of material non- disclosure is threefold namely: i) has there been non-disclosure? ii) was it material? and iii) would a different order have been made – that is, would the non-disclosed material have made a substantial difference either to the length of order or the level of quantum or both? Judgment Approved by the court for handing down. NvN b) The test set out by the judge in paragraph 11 of her judgment was entirely correct. The judge was, however, in error in the manner in which she applied that test to the material before the court. c) Whilst the bar imposed under MCA 1973, s 31 (7B)(c)(i) was absolute, that did not prevent the wife from coming back to seek an upward variation of the order during the course of its term. The order expressly provided for the husband to disclose his annual tax returns to the wife, thereby providing her with a source of information which might justify such a variation application under MCA l973, s 31. d) Insofar as the judge categorised events which occurred after the conclusion of the process before her in November 2009 as “material non-disclosure” in respect of that hearing, she was in error. e) Any failure to give disclosure during the subsequent appeal processes is not relevant to the question of non-disclosure within the 2009 proceedings. Whilst it is accepted that the husband is under a duty not actively to mislead the appellate court, it is not accepted that there is a continuing duty to provide full and frank disclosure on appeal. f) With respect to the third element of the three part test “would a different order have been made?” the judge answered her own question at paragraph 20 of the judgment by saying “It is impossible to say what the outcome would have been”. 37. Mr Glaser draws particular attention to paragraph 17 (xi) of the judgment which is in the following terms: “I pause there to say that I had made a finding that whilst there was ongoing litigation the husband would be unable to work. That was a wholly inaccurate assessment. I am struck by the fact that the husband had “lost” before HH Judge Rylance, and therefore one might have expected the husband to have been even more depressed at the imposition of a joint lives periodical payments order. But at this time, we see further work activities.” 38. Mr Glaser submits the judge was wholly in error to undertake the intellectual process described in this sub-paragraph within the context of assessing whether or not material non-disclosure occurred in 2009. For the judge to re-visit the assessment she made on the basis of oral evidence in September 2009 by reference to the husband’s reaction to the appeal decision nine months or more later is irrelevant to the determination of whether there was material non-disclosure at that original oral hearing. 39. Mr Malcolm Hay, who represents the wife before this court as he has done on a number of occasions previously, contests the appeal by making the following principal arguments: Judgment Approved by the court for handing down. NvN a) The e.mail exchange in which the husband engaged in October and November 2009 represented a change in position from that adopted during the oral hearing. That change of position should have been disclosed prior to the order being made. b) The thrust of HHJ Raeside’s judgment in 2013 is that if she had had this information in November 2009 she would have made a different order, albeit she could not yet say with precision what form that different order might take. c) The husband was under a duty, as a matter of law, to give full disclosure in relation to relevant issues during the currency of the two appeal processes. In any event, he was under a duty not to mislead the court or the opponent party. In making that submission reliance is placed upon Vernon v Bosley (No. 2) [1999] QB 18. d) Had full disclosure taken place, it is likely the Court of Appeal would have upheld the order of HHJ Rylance either in its entirety or with amendments; the non-disclosure was therefore material. 40. During his oral submissions Mr Hay described the judge’s approach as being one of seeing whether the husband had accurately described his “statement of intentions” in 2009 in the light of what he subsequently came to say to the appellate courts. Mr Hay did not accept there was any material distinction between a party’s duty to give full and frank disclosure of hard factual information, on the one hand and making a statement of future intention, on the other. Relying upon the case of Edgington v Fitzmaurice (1885) 29 Ch D 459] he asserted that the state of a man’s mind is just as much a fact as the state of his digestion. 41. Mr Hay further submits that, although the judge does say at paragraph 20 “it is impossible to say what the outcome would have been” that observation has to be seen in the light of the judge’s overall conclusion which was to make a positive finding that “if I allow the order of November 2009 to stand then there will have been a miscarriage of justice”. He submits that that final reference to “miscarriage of justice” can only indicate that the judge has concluded that the failure to make disclosure was material and would have made a substantial difference to the order that she determined upon in 2009. 42. Contrary to the submissions made by Mr Glaser, Mr Hay asserts that the judge was fully entitled to re-visit her previous assessment of the probable impact of the wife’s litigation behaviour upon the husband’s ability to work in the light of his actions following the adverse determination by Judge Rylance in May 2010. Mr Hay says this is all part of a piece with the husband’s active misleading statements to the two appellate courts. The judge was entitled to conclude that this demonstrated a propensity on the part of the husband deliberately to seek to mislead the court and that the judge concluded that this was exactly what the husband had done before her in 2009. The legal context Judgment Approved by the court for handing down. NvN the time that the consent order was made, or whether it was a subsequent windfall that was sufficiently close in time to the making of the order to be seen as a supervening event which might justify reopening the proceedings. The fact that that distinction was undetermined in Burns means that Thorpe LJ’s observations as to a duty to disclose that may continue after the conclusion of proceedings are also made in a context which is not limited to material non-disclosure but which may include fresh supervening events. 52. Although Thorpe LJ identifies positive factors in favour of extending the duty to provide full and frank disclosure in family finance cases beyond the close of the first instance proceedings, observations by Coleridge J in another case indicate just how burdensome the responsibility of providing disclosure can be where the spouse concerned may have complicated and volatile financial arrangements. The case was Gordon (formerly Stefanou) v Stefanou [2010] EWCA Civ 1601, [2011] 1 FLR 1583 and the context being addressed by Coleridge J was in fact one stage before the conclusion of the hearing where, as is not infrequently the case, the parties have to await preparation of a reserved judgment. Coleridge J said: ‘Finally I would like to endorse Ms Stone QC’s concern about the potential effect of lengthy delay between the end of a hearing and the production of the judgment in these complex ancillary relief cases involving fast moving commercial enterprises where the profile of a company can alter sometimes in a short period. In such cases the picture is inevitably shifting, and this places an unfair continuing burden, I think, on participants in such enterprises in having to discharge this continuing burden of disclosure.’ In Stefanou the period of delay between the close of the hearing and the handing down of judgment was some 4 months. 53. In the present case the breach of duty is alleged to be during the first instance hearing and it is not, therefore, necessary for this court to determine that there is or is not a continuing duty to provide full and frank disclosure of all relevant financial information during the currency of appeal proceedings relating to an order for financial provision. My preliminary view would be against such a duty on the ground that it would be unnecessarily burdensome, and a potential source of unwarranted satellite litigation to establish a formal requirement that the parties should keep all of their previous financial disclosure up to date in the lead up to an appeal hearing and before the appellate court has determined whether there has been any material error in the first instance decision. 54. In these proceedings the husband took steps actively to mislead the two courts hearing the appeals and the judge was entitled to take such note of that reprehensible conduct as was permissible in determining whether there had been material non-disclosure at an earlier stage during the first instance hearing before her. What the judge was not entitled to do was retrospectively to establish that the husband was under a positive duty to disclose any change in his financial circumstances throughout the appellate process. It is accepted that there is no authority in case-law or within the Rules which imposes such a duty. The only reason advanced by the judge is that disclosure is such a fundamental part of first instance applications for financial orders that it would be astonishing if the duty was any different on appeal. With respect to the judge, the first instance process and the appellate process are very different and it does not follow as Judgment Approved by the court for handing down. NvN night follows day that what is essential for one is also essential for the other. In the absence of any other reason put forward by the judge, it was, in my view, simply not open to the judge to hold that such a duty exists. 55. Thus, whilst the judge was plainly entitled to rely on the husband’s active conduct designed to mislead the court, she was not entitled to hold that he was also in breach of a positive duty to give disclosure of his changing financial circumstances throughout the life of the two appeals and, insofar as she relied upon breach of that duty she was in error in doing so. 56. Finally in terms of the legal context it is necessary to underline the need for the court to make a finding or findings of fact that there was material non-disclosure during the original process as an essential preliminary to the exercise of the jurisdiction to set aside the original order and reopening the issues that had hitherto been determined. In Gohil v Gohil (No 2) [2014] EWCA Civ 274 this court has recently reasserted this point in the following terms (paragraphs 81 and 82): “Within any Livesey v Jenkins evaluation, as Ormrod LJ in Robinson v Robinson [1982] 1 WLR 786 makes plain, ‘the power to set aside arises when there has been fraud, mistake, or material non-disclosure as to the facts at the time the order was made’. The task of the court therefore is to determine whether there has been material non-disclosure. There will usually be, again as Ormrod LJ spells out, ‘issues of fact to be determined before the power to set aside can be exercised’. A judge conducting an application to set aside an order for material non-disclosure must therefore, in the absence of admitted non-disclosure, conduct a fact-finding exercise and make a finding of material non-disclosure. Until such a finding has been made, any power to set the original order aside does not arise. It is trite to state that any finding of fact as to material non-disclosure must be based upon the usual requirements for the evaluation of admissible evidence within the parameters established by the burden and standard of proof and the requirements of a fair trial.” Discussion 57. In the light of the legal context that I have described, it is necessary to look with care at the case that was presented to HHJ Raeside in 2013. In Livesey v Jenkins the ‘fact’ of non-disclosure was not in doubt; the wife became engaged to be remarried 6 days after agreeing a consent order for favourable financial provision and three weeks before the consent order was formally made, she was married three weeks after that. In other cases the fact of non-disclosure will not be so unambiguous and, if not admitted, will require proof by evidence which is evaluated on the ordinary civil standard. Secondly, where non-disclosure prior to the conclusion of the proceedings is proved, the court must consider whether that which was not disclosed was ‘material’ to the discharge by the court of its duty under MCA 1973, s 25(1) ‘to have regard to all the circumstances of the case’. 58. The need for caution when considering the present case arises from the fact that the allegation of material non-disclosure was neither clear cut nor limited to one specific ‘fact’. The case, in this respect, was a long way from Livesey v Jenkins and Vernon v Bosley (No 2) or even Burns v Burns. The issue to which the alleged non-disclosure Judgment Approved by the court for handing down. NvN related was the husband’s intention and psychological readiness to recommence work. The evidence relied upon in 2013, save for the pre-order email traffic, involved developments which occurred after, and in some respects well after, the conclusion of the 2009 hearing and there is no suggestion that the husband knew what those future developments would be when the financial order was made. The judicial task was, however, to consider whether this evidence of how events had later unfolded proved that the husband had failed to disclose his true state of mind and intention with regard to employment during the currency of the court proceedings. The judicial task was not to look back at the history of the 3 years following the 2009 hearing and consider what the court’s determination might have been at that time if the judge had known how matters would subsequently turn out. 59. Against that background, and despite the obvious care that HHJ Raeside brought to this case, I am clear that she fell into error in a number of respects. Firstly, the structure of her judgment was not tightly constrained and permitted her résumé of the relevant material to stray well outside the boundary of the focus that she had set herself in paragraph 11 (see paragraph 28 above), which was to consider whether or not there had been material non-disclosure in the process before her in late 2009, and whether any such material non-disclosure would have made a substantial difference to the order that she then made. 60. In addition to taking into account a significant amount of material which post-dated that process, the judge did not bring the core of her previous findings into the evaluation at the conclusion of her judgment in order to determine whether or not such non-disclosure was material. Had she done so she would have had at the forefront of her mind the detail of her conclusion as to the husband’s health and his ability to work. That conclusion had included the following elements: a) In good health the husband can earn over £100,000 p.a.; b) What he will choose to do in the near future is impossible to predict; c) It is likely that when the litigation is completed he will be able to return to well paid employment. 61. In addition the judge would also have had at the forefront of her mind the fact that her 2009 determination was not primarily based upon the husband’s earning capacity, but upon the judge’s adverse conclusion with respect to the wife’s claim for maintenance based upon her own earning capacity and needs. In this regard the judge had concluded as follows: “I find that the wife will need some financial support for herself for the next two and a half years. I find that she is capable of contributing to her own support financially now, and can work full time in two and a half years’ time…I dismiss the wife’s claims for an increase in her own maintenance from the date of her application; in the light of her failure to take any realistic steps towards financial independence I do not see why the husband should pay any more than that sum.” Judgment Approved by the court for handing down. NvN material presented to the judge at this short hearing was subject to an ordinary forensic trial. The issue around which the non-disclosure allegation turned was the husband’s state of mind and his intention regarding work as it was in 2009, yet he was not called to give evidence. The burden of proof for establishing material non- disclosure was upon the wife; the husband did not have to prove the contrary. At its height the judge’s finding is that it is ‘possible to draw an inference’ as to the husband’s intention in giving up work in 2008. In my view a conclusion in those terms, based upon the husband’s ability to work from 2010 onwards, when the fact that he would return to work was openly contemplated by the court in 2009, falls well short of being sufficient to support a finding of material non-disclosure. 73. Secondly, later at paragraph 20 the judge apparently converts the possibility of drawing an inference into a positive finding: ‘It is impossible to say what the outcome would have been had the Court known that the husband had chosen to give up work to defeat the wife’s claims; that the husband was planning on an early return to work and that the litigation would not affect his earning capacity in the future.’ For the reasons that I have already given, I do not consider that the evidence before the court, or the process adopted to enable that evidence to be tested, were sufficient to support such a finding. 74. Thirdly, the judge failed to have regard to the fact that the central issue, which related to the husband’s capacity and intentions in the autumn of 2009 regarding future employment, was not such as to be capable of a clinically precise determination as would be the case with other categories of contentious fact (for example bank statements, ownership of assets, wage slips or even other matters of intention such as an engagement to be married). As a result, of necessity, the judge’s findings in 2009 had to be expressed in general and imprecise terms: ‘impossible to predict’ what he will choose to do; ‘I have the impression that he wishes to work’; ‘it is likely when the litigation is completed he will be able to return to well-paid employment’; ‘if he is involved in further litigation … he will not be able to work’. For the same reason, although by 2013 the court had hard evidence of what the husband had done in terms of employment, there was a need for some caution when looking back to determine, as a fact, that his subsequent work record established, on the balance of probability, that the judge’s earlier imprecise assessment was wrong and had been generated by the husband’s evidence at the original hearing. This question required careful and sophisticated evaluation of a level which, I am afraid, is not demonstrated in the judgment. 75. Fourthly, whilst the judge was entitled to rely upon the husband’s conduct in actively misleading the two appellate courts as demonstrating a lack of honesty in such matters and a willingness to manipulate information given to a court, that behaviour does not, of itself, establish that, at an earlier stage, he had committed perjury over the course of his oral evidence before the judge and had generated a wholly false favourable impression of him in her mind. Nowhere does the judge analyse the impact of his subsequent conduct in her judgment, but I accept Mr Glaser’s submission that it seems likely that the judge allowed her adverse view on his misleading conduct, and her erroneous view that he should in any event have been updating disclosure of his finances during the appeal, to colour her retrospective reconsideration of his Judgment Approved by the court for handing down. NvN presentation during the 2009 hearing. Again the evidence cannot be stretched that far, particularly so following a hearing when these matters were not tested by being put to the husband in evidence. Conclusion 76. It is difficult for a judge who, some years after making a decision, is given information as to how matters have turned out and, with hindsight, may consider that a different decision from that which had originally been given should have been made. As a matter of law, however, the need for finality at the conclusion of financial provision proceedings following divorce is supported by restricting the court’s ability to reopen such decisions following contested proceedings to cases where there has either been material non-disclosure or there has been a significant supervening event in the period following the making of the order (Barder v Calouri [1988] AC 20). A finding of material non-disclosure must be established on the evidence and after an appropriate and fair trial process during which that evidence is evaluated. 77. For the reasons that I have given, and despite the sympathy that I have for the position in which the judge found herself, I conclude that the material placed before the court, and the process adopted at the hearing, were insufficient to support a finding of material non-disclosure with respect to the husband’s future employment intentions in 2009. I would therefore allow the appeal and set aside the judge’s order which, in turn, set aside the 2009 order. The result, if my lords agree, is that the 2009 order is reinstated. Sir Stephen Sedley 78. I agree. Lord Justice Patten 79. I also agree.