When lies may pay off
Sharland v Sharland  EWCA Civ 95 is one of those rare cases which is lost on the facts, as construed by the majority; whilst the minority judge – Briggs LJ, in this case – explains the law. The law remains intact. It is not changed by the decision as explained in Briggs LJ’s summary. On the facts, the decision went against Mrs S on the day. In a later note I will discuss what a craven mess is the law of family breakdown in this area (in the meantime see further NLJ of  21 June 2013, David Burrows at http://www.newlawjournal.co.uk/nlj/content/change-heart).
Everyone agreed that Mr S had lied to Sir Hugh Bennett (first instance judge). The lies unravelled the stated facts which had enabled the parties to reach an agreement, to have it recorded in writing and then to have an order approved by the judge. Because the order was not sealed it was said Sir Hugh was not off the case (functus).
He, and More-Bick and Macur LJJ after him, then proceeded to look through the order telescope from the wrong end. Because he had not made an order he must pretend he had, and in so doing look at how he might have acted differently from the order. As with an appeal on a discretionary decision he and the Court of Appeal applied the G v G test (though not expressly: G v G (Minors: Custody Appeal)  FLR 894, HL). Mrs S was left with a not-order against which a not discretion was tested on discretion-based terms. I hope all that is clear?
‘Tell you what Mr Sharland, sir, you tell porkies – much as you like; the court makes an order; and unless they’re really bad porkies – know what I mean? – you’ll probably be OK.’ That seems to be the current misrepresentation/fraud test under Matrimonial Causes Act 1973 s 25.
In an elegant explanation of what is – and remains – the law, Briggs LJ said in effect: you lie, and it’s back to GO and not collect £200 on the way (with costs thus far, maybe). It is a simple test. Courts cannot condone liars or cheats. The order must set aside. If the non-disclosure is relatively trivial then the appellant might find herself paying costs: that is a risk. It does not alter the legal principle.
The law is clear: procedure is a mess
As a matter of law and procedure the application to set aside is by appeal (see Senior Courts Act 1981 s 17 explained in eg B-T v B-T  2 FLR 1 (Mr S’s advocates were in the same chambers as counsel in B-T, but do not seem to have compered 25 year old notes) affirmed in eg Taylor v Lawrence  EWCA Civ 90,  QB 528; and see David Burrows at length in two articles in April and May 2102 Family Law). On that basis alone I’d say Mrs S has a good claim for a Taylor v L review (CPR 1998 r 52.17; and see Cart v Cart  EWCA Civ 1006).
The law is clear. Mrs S, and her representatives, could not get it to stick to Mr S.
Procedure, by contrast, is a condign mess. Mrs S found herself prosecuting an appeal against a decision below on G v G principles (ie on a discretionary ‘decision’ of Sir Hugh Bennett (he who gave Sir Paul McCartney his pragmatic – if illegal – pre-decree nisi order)); where she should have been pursuing an appeal against an illegal consent order. On a correct procedural basis the lower appeal threshold of wrong-ness – ie wrong in law – would have applied to her. The appeal would have tested her position in contract law not under G v G.