Family Law Hub

Chapman v Kawash [2014] EWHC 4481 (Fam)

Application by W to appeal, out of time, a consent order making financial provision for her. She was appealing on the basis that since the order was made, the W solicitors had uncovered evidence that the H may own land in Jordan which he had not previously disclosed. Permission was granted despite the W having had an inkling before the consent order was made that the H may have owned this land.

  • Neutral Citation Number: [2014] EWHC 4481 (Fam)



    Case No. FD13D02942

    Royal Courts of Justice

    Friday, 19th December 2014



    (sitting throughout in public)

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    B E T W E E N :


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    ZIAD FAWZI KAWASH Respondent

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    MR J. WARSHAW appeared on behalf of the applicant wife.

    THE RESPONDENT did not appear and was not represented.

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    1 This is an application by a wife for permission to appeal, and permission to appeal out of time, from a consent order making financial provision for her made by District Judge Alderson on 4th July 2014. The essential facts, for the purposes only of today and this judgment, are that the parties were married to each other for a relatively few years. They have no children. Unfortunately, their marriage broke down and the wife began proceedings for divorce and a financial remedy order. At that time she was acting in person.

    2 The husband acted throughout through the exceptionally well known firm of solicitors, Goodman Derrick. The husband made some disclosure of his capital and means. The wife was not satisfied with that disclosure and, in particular, clearly had a strong belief that the husband owned a valuable piece of land in Jordan (he is himself a Jordanian). Thus, in a questionnaire prepared by her, and dated March 2014, she asked as question 2, "Please produce copies of the Jordanian Land Registry entries for the respondent's property in Jordan.” The answer provided to that question on 16th April 2014 was, "The respondent does not currently own any land in Jordan nor did he own any land in that country at any time during the marriage.” It is clear that that answer did not satisfy or convince the wife for, as has been explained in relation to the present appellate proceedings, she instructed a lawyer in Jordan to dig and research to find out about the property that she believed that he owned in Jordan.

    3 Notwithstanding that, the terms of the consent order were agreed, which is brief and straightforward, namely, that the husband had to pay the wife a lump sum of US $100,000, effectively in full and final settlement of all claims. It was only subsequent to that consent order that the wife finally heard from the lawyer in Jordan, who appears to have established that the husband did indeed own a valuable piece of land in Jordan. Further, she has now produced a valuation of that land, which appears to be a prime site, indicating a value which converts to £1,600,000 sterling.

    4 Not surprisingly, this greatly concerned the wife, who, perhaps belatedly, instructed the equally well known firm of solicitors, Sears Tooth. There has been correspondence between Sears Tooth and Goodman Derrick. On 5th December 2014 Goodman Derrick wrote a letter which clearly indicates that some land in Jordan is or was indeed owned by the husband. They say in their letter that there was a legal arrangement between the husband's father and two of his sons, namely, the husband himself and one of the husband's brothers. What appears to have happened is that a larger piece of land was divided into three separate plots, one of which is or was indeed owned by the husband. Goodman Derrick say in their letter,

    "The rationale for the original transfer of the ownership of the land from the sole name of [the father] into three separate plots was to enable advantage to be taken of a change in the law of Jordan in 1996 which had previously prohibited ownership by an individual of any plot of land of less than 10,000 square metres in size ...".

    5 Thus, it seems to appear that at some point there was a transfer of a plot of land, being one-third of the original overall site, to the husband, albeit that the suggestion appears to be that in some way that land is "beneficially" owned on behalf of the husband's father. That account is, of course, fundamentally different from the bland proposition in the answer to questionnaire of 16th April 2014 that "The respondent does not currently own any land in Jordan ...".

    6 It is on the basis of this new information that the wife now applies for permission to appeal, and permission to appeal out of time, from the consent order. Clearly, the sum involved is very significant. As I have said, the essential presentation, on the basis of which the consent order was made, was that both parties had negligible capital. The difference between having nothing and having £1.6 million is vast.

    7 So, on the face of it, there was non-disclosure in this case of an asset, the value of which was, and is, very significant. I have to say that it does not self-evidently follow that this consent order should be set aside. This is not a situation in which, subsequent to a consent order, an applicant for a financial remedy order discovers completely for the first time the existence of some asset of which he or she was previously completely unaware. As I said during the course of the brief discussion this morning, this is not a situation where, by way of example, the wife has discovered since the making of the consent order that the husband owns or owned a piece of land in, say, Australia of which she had not previously had the slightest inkling. Rather, this is one of those cases in which at all material times the wife clearly "knew" very well that there was, or at any rate may be, a piece of land in Jordan in which her husband had some interest. That is why she asked the question in March. That is why she instructed the lawyer in Jordan to dig and investigate.

    8 It may be, therefore, that the correct analysis of this case is that the agreement to the consent order involved a deliberate decision by her to compromise, including compromise on the issue of whether there was some undisclosed asset. Indeed, Mr Justin Warshaw, who appears on behalf of the wife today, used the phrase that she "took a view". Clearly, non-disclosure is non-disclosure. If it is significant and material, it may lead to the setting aside of the order in question. But in situations where a party has "taken a view" and deliberately compromised an issue as to disclosure, it may not automatically follow that the order should be set aside.

    9 Those considerations are, however, for another day at the substantive appeal. I am quite satisfied in this case that there is evidence, essentially comparing the answer to questionnaire with what Goodman Derrick now say, of potentially significant non-disclosure in this case. The proposed appeal clearly has a realistic prospect of success, and in the circumstances I should clearly grant permission to appeal, including permission to appeal out of time.

    10 It may be that this is a case in which it would be most economical and proportionate for the court hearing the appeal to go on seamlessly to re-determine the wife's claims, if it first decides that the existing consent order should be set aside. For those reasons I propose to direct that two clear days are listed for the final hearing of the substantive appeal and that, in the event that the court does decide to set aside the consent order, then it may (I stress the word "may") at the same hearing proceed at once to re-determine the wife's claims for financial remedies. I thereby put down the clear express marker to both sides that there may be one single composite hearing in which this whole matter is sorted out once and for all. For that reason, two days may be required. For that reason also, both parties, including the husband, must personally attend the hearing, together, of course, with any lawyers whom they may instruct. But I do emphasise in that passage and that part of my order the use of the word "may". Of course, I do not seek in any way at all to bind what the court might decide at the substantive hearing. It may later emerge that further discovery is required and that there are too many issues for the court finally to resolve them all at one single hearing. It may also be that at that hearing, if the existing consent order is set aside, then the court will remit the whole matter for fresh hearing before a district judge.

Judgment, published: 14/01/2015


Published: 14/01/2015


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