Hussain [2021] EWFC 13 : Notice of appeal filed 14 months after final financial order - leave to appeal granted

HHJ Hess made a final financial remedy order in January 2018.  H did not file a form E and played no part in proceedings.  The court therefore relied on the evidence of W.

W stated the marital home was worth £250,000, with a mortgage of £100,000; that being the only asset in the case.

The order of the judge provided for a clean break upon payment of a lump sum of £125,000, being nearly all the assumed equity, with a sale in default of that sum being produced.

In May 2019, in support if his application for leave to appeal, H produced a form E stating the mortgage was £200,000, together with evidence.  Cohen J said ‘It is inconceivable that the judge would have made such an order if he had known the correct figure’.

Cohen J said ‘For the avoidance of doubt, if there is any, but for this one key factor, I saw no merits in the husband's other grounds of appeal.  But, on this one issue, it seems to me that he has an irrefutable claim for the matter to be looked at again’.

He added ‘There was no valuation of the matrimonial home and no one seems to have thought to get the office copy entries, which would have revealed the identity of the lender and opened the door to getting an accurate statement of the outstanding mortgage on the property’.

He said ‘Both parties' circumstances inevitably will have changed dramatically in the last three years.  I know that to be the case so far as the husband is concerned because he has remarried and is back in the home with his new family.  The wife too has been rehoused and her needs for housing have, therefore, been met.  In the circumstances, it is plain that the 2018 order would not be appropriate in the current circumstances’.

The judge remitted the matter to the first instance judge for an FDR after the parties had filed forms E with agreed documents, adding ‘But the fact that a party may be waiting for one document is not a ground for not providing everything else.’

In conclusion it is always wise to obtain office copy entries, and as far as possible obtain evidence of any material figures a client asks you to rely on.