FG v BN (Appeal Out of Time)

This reserved judgment follows a half-day hearing on 28 April 2026. The appellant is represented by Mr Chris Carr of counsel and Stevens and Bolton solicitors; the respondent by Mr Charles Richardson of counsel and Peacock & Co solicitors. In the interests of clarity, I will refer to the appellant as ‘the Husband’ and to the respondent as ‘the Wife’.

The Husband seeks permission to appeal the financial remedies order made by District Judge Hartley, made in the family court at Kingston Upon Thames, at a final hearing on 16 January 2025 (“the final order”). Neither the Husband nor his then-instructed solicitor attended the final hearing. Also, at that date, he had failed to file a Form E and had not complied with any First Appointment directions.

The learned judge proceeded in the Husband’s absence and handed down a short judgment of roughly 2,500 words. The court drew adverse inferences that the Husband had significant undisclosed assets and pension rights. The court assessed that the net assets were worth circa £1.9m (of which roughly £550,000 was inferred) and, in addition to the Wife’s disclosed pension of £237,000, the court inferred that the Husband’s pension was worth “in excess of £700,000”.

In terms of outcome, the learned judge ordered that the Wife should receive £900,000, comprising the net equity of two real properties to be sold, and a balancing lump sum of £35,314. This met the Wife’s assessed needs, comprising £700,000 for a housing fund and £200,000 for an income fund; equating to roughly half of the total net assets (circa £900k out of over £1.9m), with the Husband retaining his more valuable pension.

The Husband’s appeal was lodged 10 ½ months out of time, whereby, as a preliminary issue, he seeks relief from sanctions. The route of appeal from a district judge is normally to a judge of circuit judge level (FPR PD 30A, para 2.1). I have been specifically authorised to hear this case as a recorder.

The Husband relies on three mitigating factors in support of seeking relief from sanctions: (a) the mental health problems he has experienced post-separation, (b) what he describes as “serious concerns as to the level of advice” he received prior to May 2025, and (c) delays in obtaining a transcript of the judgment and taking counsel’s advice.

If I grant relief from sanctions, the Husband seeks permission to admit new evidence by reference to the test set out in Ladd v Marshall [1954] EWCA Civ 1, and a stay on the implementation of the final order.

The Grounds of Appeal (not drafted by Mr Carr) raise ten substantive grounds, broken down into 17 sub-paragraphs, several of which overlap. During the hearing, Mr Carr helpfully summarised his case by submitting that the Husband raised three main grounds of appeal, that the learned judge:

Mr Richardson submits that this appeal is significantly out of time and, applying the checklist at FPR Pt 4.6, I should refuse to grant relief from sanctions. Mr Richardson relies on the Husband’s extensive non-compliance with directions prior to the final hearing, and more recently. The Husband has been legally represented throughout and is himself legally trained: he formerly worked as a solicitor; now as a part-time tribunal judge.

If I allow relief from sanctions, Mr Richardson submits that I should refuse to admit any new evidence and refuse permission to appeal on the basis that there is not in fact a ‘real prospect of success’ (FPR Pt. 30.3(7)).

As to the grounds of appeal, Mr Richardson acknowledges that the learned judge’s computation of the assets was imperfect but submits that the court’s adverse inferences were properly drawn and that the court did not fall into error.

On instructions, Mr Richardson informed the court that, since the final order, it has proven difficult to sell the main real property, whereby the Wife has sold the property at auction, whereby she stands to receive £270,000 less than the judge awarded (i.e. a total of £630,000 rather than £900,000). Nevertheless, through counsel, the Wife urges me to dismiss the appeal and not to reopen this case by way of an appeal.

In advance of this hearing, I received and selectively read the appeal bundle (195 pages) and an agreed bundle of authorities (219 pages).

This permission hearing was set down with a time estimate of half a day. In the event, this allotted time was entirely taken up hearing oral submissions whereby I have had to reserve judgment. I am grateful to both counsel for their helpful oral submissions. This is a complicated and somewhat entangled case, whereby counsel have had to address me in relation to: relief from sanctions, permission to appeal, admission of new evidence and a stay.

In a nutshell, the Husband’s case has gone from one extreme, whereby at the final hearing he had provided the learned judge with no information at all, to the other, whereby in this appeal, I am almost inundated with detailed submissions and factual arguments.

I consider it would have been better if the Husband’s appeal had concentrated on fewer and more clearly defined grounds of appeal (“few, short and clear” in the words of Mostyn J in Augousti v Matharu [2023] EWHC 1900 (Fam)). This might have resulted in more concise skeleton arguments (which in the Husband’s case was not drafted by Mr Carr), and the court being in a position to hand down a shorter judgment. There can be few other cases where an appellant’s skeleton is 2 ½ times longer than the judgment under appeal (roughly 6,500 words as against 2,500).

In addition to densely detailed submissions, contained in the Grounds of Appeal and skeleton, the Husband has filed two witness statements in support of the appeal, both dated 17 December 2025:

I see no problem with the first witness statement (“WS”). An appellant who seeks relief from sanctions and/ or a stay is required to file evidence in support (see FPR Pt. 4.6(2)).

The second witness statement however is problematic:

The parties in this case are now aged 74 (Husband) and 58 (Wife).

They married on 24 May 1997 and separated on or around 27 November 2023, making a married life of some 26 ½ years.

There is one child of the marriage, AB who is 21 years old and attends CD University as an undergraduate.

The Wife is a qualified teacher who has latterly been working as a private tutor. The Husband formerly worked as a solicitor but, following his retirement ten years ago, works as a part-time tribunal judge. As part of his appeal, the Husband asserts that the Wife (and thereby the court) grossly over-estimated his net income by reference to historic information.

The Wife issued her claim for financial remedies on 7 March 2024. The Wife filed her Form E on 19 June 2024, broadly in accordance with the court’s automatic directions. The Husband did not file a Form E.

The First Appointment was accordingly bound to be ineffective. To the parties’ credit, their representatives (respectively Ms Fatima Ismail of counsel for the Wife; Clarity Family Law for the Husband) agreed directions which were approved by Deputy District Judge Glasner on 19 July 2024. These involved a comprehensive attempt to put the claim effectively back on track: (a) extending time for the Husband to file a Form E, backed with a penal notice, (b) providing for questionnaires which should be replied to saving just exception, (c) updating disclosure, (d) permission to instruct a pensions expert and a taxation expert, with (e) a further 2 hour hearing which would either be an FDR or, in the event that the Husband failed to comply with the agreed directions, a final hearing, in which case the Wife was directed to file a witness statement dealing with the various s.25 factors, supported by property particulars and evidence of mortgage raising capacity.

In advance of the First Appointment, the Husband’s solicitor filed a position statement which explained his failure to file a Form E by reference to the “…rapid decline in his mental health” and attached a letter from his GP dated 17 July 2024. In that document, the writer, presumably on instructions, “assure[d] the court [the Husband] will comply with the suggested directions”.

In the event, the Husband did not comply with any of the agreed directions. He did not file a Form E whereby there was no exchange of questionnaires. He did not provide updating disclosure. Accordingly, the next hearing, listed on 16 January 2025, was converted from an FDR to a final hearing, in advance of which the Wife filed a s.25 statement.

Neither the Husband nor his legal representatives attended the final hearing on 16 January 2025. Accordingly, the learned judge was faced with a difficult but not uncommon problem: how to deal with a case where one party had comprehensively failed to respond, had breached numerous directions, and had not attended?

Had this been a civil claim, the court might have simply entered judgment in default. However, that remedy is not available in financial remedies, either as a matter of law or procedure. The court’s quasi-inquisitorial duty to “…have regard to all the circumstances of the case” (MCA s.25(1)) is not discharged due to one party’s non-compliance, and in any event, the Family Procedure Rules contain no equivalent to Part 12 of the Civil Procedure Rules.

In financial remedies, the court somehow still has to undertake the two-stage exercise of computation and fair distribution of resources (Charman v Charman [2007] EWCA Civ 503), even where, as in this case, half of the evidential picture is obscure.

In such a situation, the court may draw adverse inferences about hidden assets, although this process is generally easier to describe than to apply in practice. Such inferences must be “…properly drawn and reasonable” (Baker v Baker [1995] EWCA Civ 31, Otton LJ)), but should not err in the favour of the non-disclosing party: “…when [the husband] leaves a gap in such a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference” (J v J [1955] P 215, Sachs J). Per Butler-Sloss LJ in Baker:

“…To accept Mr Holman`s alternative proposition that, unless the assets can be shown positively to be available an order cannot be made, flies in the face of the principles enunciated in the judgment of Sachs J [in J v J] and would send a clear message to spouses unwilling to make full and frank disclosure. It would indeed, as Mr Posnansky said, be a cheats' charter”

InMoher v Moher [2019] EWCA Civ 1482, the Court of Appeal reviewed the authorities (including the above cases) with approval, concluding as follows:

“…When undertaking this task the court will, obviously, be entitled to draw such adverse inferences as are justified having regard to the nature and extent of the party's failure to engage properly with the proceedings. However, this does not require the court to engage in a disproportionate enquiry. Nor, as Lord Sumption said, should the court “engage in pure speculation” … This does not mean… that the court is required to make a specific determination either as to a figure or a bracket… better an order which may be unfair to the non-disclosing party than an order which is unfair to the other party. This does not mean, as Mostyn J said in in NG v SG, at [7], that the court should jump to conclusions as to the extent of the undisclosed wealth simply because of some non-disclosure. It reflects, as he said at [16(viii)], that the court must be astute to ensure that the non-discloser does not obtain a better outcome than that which would have been ordered if they had complied with their disclosure obligations.” Per Moylan LJ [88-91]

On 16 January 2025, the court heard submissions from Mr Richardson but did not call the Wife to give evidence. The court proceeded to hand down a short judgment, in which the learned judge summarised the factual background and commented on the ‘significant difficulty’ she faced in computing the assets.

The court concluded that the total value of the net assets was “…roughly £1,613,000, to [which] must be added sums to represent the assumptions made as to the respondent’s cash and investments and the balance of his inheritance… reasonably assumed to exceed £1.9 million”

From the judgment, the following table can be drawn of the judge’s figures:

It will be seen that I calculate the total at £1,584,786, not £1,613,000, which is a difference of £28,214. As to the scale of the Husband’s undeclared assets, the learned judge includes a figure of £250,000 for investments and later adopts a further figure (“several thousand pounds”) which, as a matter of mathematics, was roughly £300,000 in order to take the total (£1,613,000) up to “in excess of £1.9m”.

The court assessed the pensions as being worth £937k, comprising the Wife’s evidenced figure of £237k and the inference that the Husband’s pension was worth £700k.

The court adopted £14,000 net pa for the Wife’s income and inferred that the Husband earned £60,000 pa as a part-time tribunal judge.

The court’s award was calculated by reference primarily to needs:

The court awarded the Wife £900,000 on a ‘needs’ basis, comprising £700,000 for a housing fund and £200,000 as a capitalised income fund, on a clean break basis, whereby the net effect (assuming £300,000 for the Husband’s inferred other resources) look something like this

Accordingly, at the end of this long marriage, the court purported to divide the net assets (as the learned judge had calculated them, inclusive of adverse inferences) principally by reference to the Wife’s needs. This achieved a broadly equal division of net capital with the Husband retaining his more valuable pensions, whereby the division of aggregate resources and pensions (inclusive of inferences) was in the Husband’s favour.

The Husband was notified of the final order on 23 January 2025. He was served with a copy of the order by process server on 25 January 2025.

Pursuant to FPR 30.4(2), the Husband had 21 days from the date of the decision to appeal, which lapsed on or about 6 February 2025. The Husband missed that deadline.

Instead, three weeks after the final hearing on 10 February 2025, he belatedly served a Form E and, on 11 March 2025 submitted an application to set aside the final order pursuant to FPR 9.9A, on four grounds: (i) that he had been suffering from “severe depression and mental health difficulties, (ii) that the order is based on incorrect information including that that the value of [property R] had been overstated by £300,000 (even though, that would be to the detriment of the Wife, who received the net proceeds, and not the Husband), (iii) “there is a real prospect of a better outcome based on true information”, and (iv) “the applicant cannot obtain alternative mainstream relief which… remedies the injustice caused by the absence of the true facts”.

In or around May 2025, the Husband dis-instructed Clarity Family Law and instructed his present solicitors, Stevens and Bolton in May 2025, who obtained a transcript of the learned judge’s judgment on 22 July 2025 and thereafter took counsel’s advice.

Meanwhile, the Wife took the following steps:

I treat the information about the recent auction with some caution. It is very recent and is not set out in any witness statement. The Husband has not had an opportunity to respond. I have seen no documents about the proposed sale. However, I accept that it has proven difficult to sell [property R] and that it appears likely that the net proceeds will be significantly less than originally estimated in the estate agent appraisal evidence (as adopted in the court’s judgment).

It is common ground between counsel, and I agree, that an application to appeal out of time involves a consideration of the factors set out at FPR Pt. 4.6 (“relief from sanctions”), i.e.

Applications for relief from sanctions are far more common in the county court than in the family court, and the leading case relates to CPR Pt. 3.9 (upon which FPR Pt. 4.6 is closely modelled). In Denton & Ors v TH White Ltd and another [2014] EWCA Civ 906, Lord Dyson MR and Vos LJ held that a court should adopt the following three-stage approach:

“[24] …A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

In TRC v NS [2024] EWHC 80 (Fam), Lieven J confirmed that Denton applies in family cases, albeit allowance should be made for the subtle differences between FPR Pt. 4.6 and CPR Pt. 3.9. I will accordingly consider whether to grant relief from sanctions, which would allow the Husband to appeal out of time, by reference to the three stages set out in Denton.

In my judgment, lodging an appeal 10 ½ months late amounts to a serious and significant failure to comply the rules:

The Husband relies in his first witness statement, as “mitigation for the delay”, on three factors: (i) his mental health difficulties; (ii) “…serious concerns as to the level of advice” received from his former solicitor; and (iii) delays in obtaining a transcript of the judgment and instructing counsel etc.

Mental health

The Husband states that his mental health deteriorated following the parties’ separation in November 2023, and that “…the primary symptom of [his] mental ill health was a complete inability to process or deal with the divorce or the respondent’s applications” (WS, para 3). He states he was first prescribed anti-depressants in December 2023 and acknowledges that a short GP letter was lodged on his behalf before the First Appointment:

“…In July 2024 the court was provided [by my solicitor] with a letter from my GP… I accept with hindsight that I should have provided ongoing reports… but was not advised as to the necessity to do so”

The Husband states “…I was struggling personally to properly engage in the proceedings and this was compounded by my solicitors’ actions/ inaction”. I shall deal with this reference to the Husband’s legal advice below, from paragraph 57 onwards.

At Mr Carr’s request, I have considered the medical evidence that the Husband has relied upon, comprising five GP letters (including the letter exhibited to his First Appointment position statement) and three more recent letters from the Epsom Community Mental Health Team.

These letters describe the Husband struggling with his mental health post-separation, being treated with medication, experiencing poor concentration, disturbed sleep and suicidal ideation (“without active plans or intent”), whereby he was prescribed anti-depressant medication. The letters describe a “clear link” between his mental health and his ability to respond to the financial remedy proceedings. The height of the evidence is contained in these two recent letters:

Criticisms of former solicitors

The Husband states “I do not waive privilege” (WS para 15) but proceeds to give a handful of examples of where, he asserts, his former solicitors were ‘inactive’ to the extent that he alleges they did not make him aware of the contents of orders, the listing of hearings etc. The Husband exhibits two emails which contain legal advice from his former solicitors dated 27 and 28 January 2025, with respect to which on any view the Husband has waived privilege. The issue of whether the Husband has thereby impliedly waived privilege in relation to the remainder of the file has not been argued before me.

Without having sight of the solicitor file, it is difficult to draw any conclusion about the allegation that the Husband’s former solicitors were ‘inactive’. However, the exhibited email of 27 January 2025 sets out their very different version of the facts:

“…Throughout 2024, we wrote to you continuously asking for documents and information. We received no response. I wrote to you by hard copy to your home address. I received no response. I sent you a notice of acting in person as I had no instructions from you. You did not respond and did not file it with the court… You did not file a Form E and did not respond to our numerous requests for documents to enable us to file one.

The Husband states that he was advised not to appeal, but rather to set aside, and I note that this advice is contained in the exhibited email dated 28 January 2025:

“…My advice is you do not have grounds to appeal and you would only have a stab at a set aside application if the criteria for such an application is satisfied. You would have to persuade the court that you had a good reason for not attending the hearing. If you wanted to rely on your mental health, my view is that the court would ask why, if that was the case, you did not file medical evidence…”

On any view, the working relationship between the Husband and his former solicitors appears to have broken down by April or May 2025 when he approached and then instructed his current solicitors.

Thirdly, the Husband relies on the delays involved in obtaining a court transcript of the judgment, which had been filed in April 2025 (WS, para 27) but was only obtained on 22 July 2025 “despite electing for a 48 hour service” (WS, para 27). I have not been provided with a chronology for the instruction of counsel, or the scope of such instruction, but the Husband has acknowledged that:

“…there were some delays in doing so over the summer due to periods of annual leave. However I feel I have taken all steps I could to mitigate the delay” (WS, para 28).

Under this final stage of Denton, I exercise a discretion to take into account such circumstances as I consider relevant, including the checklist at FPR Pt. 4.6. In my judgment, the following factors are relevant:

Pt. 4.6 “…all the circumstances”: merit of appeal

In my judgment, the Husband’s appeal is neither obviously ‘very strong’ nor ‘very weak’.

The following grounds have merit, although I do not at this stage resolve the question of whether this amounts to having a ‘real prospect of success’:

Some of the other arguments are to my mind less strong:

Separate to the merits of appeal, I also bear in mind, as one of the circumstances of the case, the apparent problems the Wife has faced in marketing the two properties for sale, which involve a very real prospect that she will exist this marriage not with the ordered £900,000, but closer to £630,000. I am not in a position to reflect that possibility in any detail, which would involve a general re-calculation of the assets, but in my judgment, the prospect of this Wife having to meet her financial needs from something like two-thirds of the award (£630,000) likely has the effect of taking the wind out of the Husband’s sails more generally in relation to the appeal.

Pt 4.6 (1)(a) ‘the interests of the administration of justice’

Pt 4.6 (1)(c) ‘whether the failure to comply was intentional’

This medical evidence establishes a link between the Husband’s depressive disorder and his ability to ‘engage with difficult divorce proceedings’, but in my judgment it does not fully explain or excuse the Husband’s non-compliance prior to the final hearing; nor the 10 ½ months between the expiry of the time limit and issue of appeal.

I also bear in mind the following facts:

Pt 4.6 (1)(d) “…whether there is a good explanation for the failure”

As to the latter point, I appreciate that there is no general rule that an appeal can only start when a transcript has been obtained. I also have not been able to get to the bottom of why it took until 22 July 2025 to obtain a court transcript. Nevertheless, I have decided to err in the Husband’s favour, and conclude that a combination of the above factors (mental health, original advice against appealing, change of solicitors, administrative delays) means that the Husband has provided a good explanation for roughly the first six months of delay (i.e. from 6 February 2025 to, say, the middle of August 2025), at which stage the Husband’s new solicitors had been in place for two or three months, and the transcript had been received three weeks previously.

From that point onwards, the Husband’s position has not been adequately explained, save in general terms relating to the difficulty of instructing counsel during the summer. While I appreciate that the pool of available counsel reduces over August, I am left with no satisfactory explanation as to what happened in the four months between mid-August and mid-December.

Making every allowance for the difficulty of this case, and the Husband’s depression, in an appeal, where the usual time limit is 21 days, it is to my mind wholly unacceptable that a period of reasonably explained delay (as I have found) is followed by an almost completely unexplained further delay of 4 months.

Pt 4.6 (1)(e) “…the extent to which the party in default has complied with other rules…”

Pt 4.6 (1)(h) “…the effect which the failure to comply had on each party”

Pt 4.6 (1)(i) “…the effect which the granting of relief would have on each party…”

I have carefully considered the written and oral submissions of counsel, reviewed the parties’ arguments in detail and taken significantly longer in preparing this judgment than would normally be the case with a half-day hearing, in particular by reference to those factors at FPR Pt. 4.6, identified above.

Drawing together the threads of my assessment of the above factors, I conclude as follows:

Overall, I have reached the firm conclusion that, weighing all of these factors into account, I should not grant the Husband relief from sanctions. The Husband’s appeal is accordingly dismissed.

For the avoidance of doubt, I have not conducted a Ladd v Marshall exercise with the new evidence, leaving aside my uncertainty as to what documents precisely the Husband sought to admit. I have taken all of the medical evidence into account. I have expressed some doubt as to the prospects of an application to adduce financial information in a case where the Husband had been directed to do so earlier, but in light of my dismissal of the appeal, I do not consider it necessary to consider that application in further detail. Similarly, the Husband’s application to stay the final order is dismissed.

During the hearing, I invited counsel to consider the position with regards the Husband’s application for a restriction in relation to [property R]. My preliminary view is that this should now be withdrawn, although I have not heard detailed argument on the point. I shall also stand over the issue of costs.

This is my judgment.