CA-2024-001698 - [2025] EWCA Civ 1136

As I earlier indicated (see §5 above), the wife’s appeal focused on the procedure and test applied by Cohen J when determining the husband’s set aside application. King LJ was explicit that the appeal was only concerned with:

“…the proper approach to an application made for the grant of leave and to any subsequent application to set aside an ex parte order for leave” (Potanina (CA1) at [3]).

King LJ aptly referred to the determination of the Part III application as “essentially summary” (ibid at [31]), and in that regard was critical of Cohen J for “making … serious adverse findings against the wife without the benefit of either oral evidence or any expert evidence as to Russian law that either party may have wished to call” (ibid at [87]).

King LJ addressed, and for the reasons which she gave rejected, the husband’s case that the Judge had been materially misled at the January 2019 hearing; she further rejected the husband’s argument that this had represented a compelling reason why the earlier grant of leave should be set aside (see her general comments about misleading statements at [65]). Of the alleged misrepresentation by the wife that she had not told Cohen J in January 2019 that she had received advice from London divorce solicitors, King LJ said this:

“[69] It is well established that no inferences can be drawn from the assertion of or refusal to waive privilege. The judge rightly said, when allowing the husband’s application, that he (the judge) must ‘resist any desire to surmise what the legal advice sought might have been’ and that the wife could ‘rest assured that I will be cautious about drawing conclusions from it’.

[70] In my view, the judge’ finding that the wife's failure to volunteer that she had sought legal advice from specialist matrimonial solicitors in London before she came to this country amounted to a 'factual misrepresentation' demonstrates that, despite having rightly urged caution on himself at the case management hearing, when it came to the set aside hearing he did regard the fact of the wife's attendance on her lawyers as relevant to the issue of her connection to this country and therefore as to whether leave should have been granted. In my judgment on the facts of this case, if the date when the wife first obtained English divorce advice is to have any materiality, it can only be as a consequence of inferring the nature of that advice, namely that it was for her to move to England as a 'divorce tourist'. The only way for the wife then to rebut that inference would be to disclose the content of the advice she had received, thereby effectively forcing her to waive her legal professional privilege.

[71] In my judgment the date the wife sought advice is not material and failure to have disclosed that she had done so in the witness statement made in support of her application for leave cannot be regarded as a material non-disclosure.” (Emphasis by underlining added).

King LJ went on to say (also at [71]) that

“… that is not to say that the wife's motivation for coming to this country is not capable of being highly relevant, but rather that is a matter for evidence and particularly oral evidence and cross-examination. Disputed evidence as to motivation cannot be regarded as a 'knock-out blow'.”

King LJ pointed out (at [74] and [75]) that Cohen J had failed to deal at the on notice hearing with the wife’s case that there was a “lacuna” in the Russian law (i.e., that a beneficial interest in assets was not recognised in Russian matrimonial law); her view was that this lacuna argument would have required “detailed analysis in its own right” ([75]). King LJ’s point in this regard was all the more striking given that Cohen J had originally granted leave to the wife in January 2019 on the basis of her lacuna argument (as King LJ observed: see [76] and [82]). Cohen J had been specific in Potanina (FD1) that the wife’s case was “that the only assets which the Russian court considered were those in the personal names of the parties and the Russian court did not look at all the husband’s business interests which contain most of his fortune”.

Furthermore, King LJ continued (at [75]):

“In any event, it is unclear upon what basis the judge was able to conclude that the judgments [of the Russian Court] show a 'proper application of the law', absent agreement between the parties that that was the case, or alternatively having had the benefit of expert evidence to that effect.”