Case summary: Neil v Neil [2019] EWHC 3330 (Fam)
Facts
- Terry
Neil (“H”) and Soraya Neil (“W”) married in 2007 and separated in 2014. - After
mediation they created a Memorandum of Understanding (“MOU”), which made no
provision for spousal maintenance and which created a charge on W’s new
property in H’s favour if the FMH sold for more than a certain amount. - W’s
solicitors, XYZ, drafted a consent order on the basis of the MOU. On W’s
instructions, XYZ then included a nominal maintenance order of £1 pa and
removed the charge back clause. - XYZ
sent the draft to H along with a letter saying it reflected the terms of the
agreement reached at mediation (despite the amendments.) W and H both signed this
first draft order. - W
was negotiating a mortgage with Coutts and sent them an unsigned draft order,
which had included in it a clause saying that H would pay periodical payments
of £66,000 pa (£5,500 pcm). On this basis W’s mortgage application was successful. - Coutts
then said that they needed to see a signed draft order and to receive written consent
from H stating he was happy with the divorce settlement. W sent a copy of the
draft order (with provision for periodical payments of £5,500 pcm) unsigned by
her but purportedly signed by H, to Coutts. - An
email was then sent from H’s email address to Coutts confirming the spousal
maintenance arrangements. H said W must have sent this from his email address. - W
signed the final order, with the substantial periodical payments clause, and
there was a signature purportedly from H on the document. - In
2017, H made an application to set aside the order on the basis of forgery and
fraud. - Separately,
following chancery proceedings, H made an application to commit W to prison for
contempt of court and W was duly committed to prison.
Issues
- Was
the order procured by forgery and fraud and should it therefore be set aside? - If
the order was indeed set aside, did the court have to set the case down for a
rehearing?
Held
- Mr
Justice Moor found that: - Without
H’s knowledge, W got XYZ to amend the MOU to delete the charge back and include
nominal maintenance of £1 pa. - H
signed the first consent order thinking it was in accordance with the MOU
(having failed to read it through carefully, or instruct legal advisors of his
own.) - W
sent Coutts a document which she accepted she falsified by changing maintenance
of £1 pa to £66,000 pa to get the mortgage she wanted, and then sent them
another document to which she added H’s signature from an earlier document. - She
sent fraudulent emails to Coutts purporting to be from H when they were
actually sent by her, and H knew nothing about this. - W
sent back the final consent order with a signature on it from H, and although
Moor J could not be sure that H did not sign it, he was sure that H was not
aware of what he was signing. - H
was very naïve and W was thoroughly dishonest. Moor J had never before come
across a court order obtained by fraud in the way W obtained the order
dishonestly, which was conduct of the most serious nature under s 25(2)(g).
- As
a result, it followed ‘as sure as night follows day, that the Husband is
entitled to a set aside of the order’ [78]. However, H only sought to set aside
the periodical payments order and for Moor J to determine the amount W owed to
him regarding the proceeds of sale of the FMH. - The
order provided that W should receive the first £1m of the proceeds of sale of
the FMH and that H should get the balance. Since W had already paid £100,000 towards
the balance of £348,930, Moor J ordered that she should pay £248,930. - Since
the case was ‘crying out for a final determination now’ [81] and Kingdon v
Kingdon [2010] EWCA Civ 1251 is authority for judges not having to set cases
down for rehearing if they are clear as to the correct outcome, Moor J
immediately imposed a clean break because there was no realistic prospect W
would get a substantive maintenance order against H. - Moor
J decided not to report W to the DPP but noted he ‘undoubtedly would have done
so had she not already served an eight-month sentence for contempt’ [88]. - W
was ordered to pay H’s costs on the indemnity basis given the serious findings
of fact made.