Case No. FD11D02580

.”71.That this change was a substantive amendment which was designed by Parliament to effect a change in procedure from the status quo ante can be collected from paras 8.3 and 8.4 of the Explanatory Memorandum which state:-“8.3 As the amendments to Part 9 involve the creation of a new procedure based on a significant point of law of substantial importance, the Family Procedure Rule Committee considered it important to consult on how the new procedure could work in practice. The consultation was from 21 December 2015 to 4 February 2016. The consultation was targeted to key stakeholders. 2 responses were received from Resolution and the Family Law Bar Association which were taken into account when the Committee made its final decision.8.4 In preparing these Rules for the Committee, Ministry of Justice officials did liaise closely with HMCTS and court staff expert in enforcement of financial orders made in family proceedings, as well as members of the Committee (legal practitioners and judges) with long-standing experience of dealing with such applications. Their views were taken into account in the drafting of these Rules.”72.The change effected by the introduction of FPR PD9A para 13.8 came into effect at the beginning of October 2016. Roocroft v Ball (above) had been heard in the Court of Appeal on 5 July 2016 prior to the implementation of the rule change. There is no reference in the judgment to any argument on this point. The legal arguments advanced on that occasion through counsel, quite properly, were focussed on existing law and procedure. Judgment was reserved and handed down by the Court of Appeal on 14 October 2016 shortly after the start of the new legal term. The new rule had then been in effect for less than two weeks. It had no retrospective effect and was not in force when the original decision was made and/or when the appeal against the trial judge’s decision was heard. Accordingly, we do not have the benefit of any consideration by the Court of Appeal in relation to how the words in para 13.8 “summarily dispose” should be construed in the context of a strike-out application. 73.What we do have are the observations made by Lord Neuberger (with whom Lord Clarke, Lord Sumption and Lord Reed agreed) in paragraphs 49 to 52 of Gohil (above). In circumstances where we know that the Supreme Court was provided with a copy of the recommendations of the ‘Setting Aside Working Party’ set up by the FPR Rules Committee (see footnote 10 above), his Lordship said this at paragraphs 49 and 50:“49.The issue whether there has been non-disclosure is a question of fact which involves an evaluative assessment of the available admissible evidence. Such a question is, of course, common in civil and family litigation, and under our common law system the rule is that it can only be answered by a judge after hearing from live witnesses as well as looking at the documents. The most common exceptions to this rule are (i) cases where the evidence is so clear that there is no need for oral testimony and (ii) cases where neither party wishes, or alternatively is unable, to call any witnesses. Ignoring any cases in the second category (which has no application here), attempts to seek summary judgment in relation to such disputed issues often fail even when the evidence appears very strong, because experience shows that a full investigation at a trial with witnesses occasionally undermines what appears pretty clearly to be the truth when relying on the documents alone: see e.g. per Sir Terence Etherton C in Allied Fort Insurance Services Ltd v Creation Consumer Finance Ltd [2015] EWCA Civ 841 paras 81,89 and 90 and the cases which he cites. Accordingly, in practice it is only when the documentary evidence is effectively unanswerable that summary judgment can be justified.50.There is also a principled reason behind this rule, namely that, at least where there is a bona fide dispute of fact on which oral testimony is available, a party is normally entitled to a trial where he and his witnesses can give evidence, and he can test the reliability of the other party and/or her witnesses by cross-examination. (I say “normally”, because, in exceptional cases, there may be reasons, such as a sanction in the form of a debarring order, for not following the rule.)” 74.Lord Neuberger went on to consider the application of these principles in what he termed the “unusual” circumstances of the case in that the factual matrix underpinning the appeal in Gohil involved a situation where there had already been a full trial with witnesses who had given oral evidence which had been tested by cross-examination. In Gohil, the husband sought to rely on the common law rule in support of his argument that there should be a further, and full, re-hearing of the non-disclosure issue. Whilst that factual matrix may have been unusual, it is precisely what has happened in this case. The 2015 hearing in relation to alleged non-disclosure on the part of W occupied the court for ten days and involved extensive oral evidence not only from W herself but also from a number of third-party witnesses including several non-executive board members of B Ltd.75.The extent to which there are now fresh issues or new evidence in relation to non-disclosure which justifies an effective re-opening of my earlier findings is something to which I will return shortly. In due course I will need to consider the evidence which H now puts before the court in support of his contention that we should turn back the page and start again with a fresh investigation into his allegations of non-disclosure.76.In the context of second hearings, or rehearings of previous allegations of non-disclosure, Lord Neuberger had this to say in Gohil:“52.In my view, there are obvious and important differences between a case where a party seeks summary judgment (i.e. where she applies for judgment on the documents and witness statements or affidavits, before any hearing has occurred) and a case such as the present, where a party is arguing that she should be entitled to maintain a judicial decision after a full hearing, even though the judge took into account inadmissible evidence. In the former case the rule would be abrogated whereas in the latter case it would not. Thus, in this case, the husband [who was seeking a full rehearing] has had the benefit of a full hearing, which, it is worth mentioning lasted around eight days. He has called all the oral evidence he wanted, and was able to subject the testimony of the wife and her witnesses to cross-examination. Accordingly, whilst it is vital to recognise his right to a fair trial (which includes a right not to have any issues determined by reference to inadmissible evidence), it must be acknowledged that the husband has had a full trial – perhaps one may say, not entirely flippantly, too full a trial.” 77.In the context of the overriding objective in CPR 1.1 (which effectively mirrors that set out in FPR r 1.1(2)(a) to (e) in its application to family proceedings, including financial remedy applications), and the clear requirement imposed on the court to deal with cases at a proportionate cost, saving expense, and allotting to each case an appropriate share of the court’s resources, Lord Neuberger said:“54.…. These factors justify a much greater reluctance on the part of an appellate court to order a rehearing in a case such as this (particularly when one bears in mind that the hearing before Moylan J lasted around eight days) than would be justified when considering whether to direct a hearing rather than award a party summary judgment.” 78.In the light of the foregoing and, in particular, the provisions of para 13 of FPR PD9A (procedure to be applied in applications to set aside a financial remedy), and para 13.8 in particular, I find myself unable to agree with Mr Elliott QC’s submission that “the FPR does not make provision for summary judgment”. That said, I accept that the combined body of case law represented by the decisions of the Supreme Court in Vince v Wyatt, the combined appeals of Gohil and Sharland, and the Court of Appeal’s decision in Roocroft v Ball accurately frames the approach in law, as opposed to procedure, which this court, like every other, must apply. There is no legal basis upon which I can subject H’s claim to set aside the 2016 consent order to a “real prospects of success” test in the context of the present strike-out application. Beyond that, it is clear that the court is entitled, pursuant to the wide discretion mandated by para 13.8 of FPR PD 9A, and positively encouraged, through application of the overriding objective, to conduct its enquiries and reach its conclusions within the context of “some form of abbreviated hearing following a provisional evaluation of the issues” (per King LJ at paras 45 and 58 of Roocroft v Ball), a fortiori in circumstances where the same or very similar allegations of non-disclosure have already been fully considered and tested in cross-examination at a previous hearing, (per Lord Neuberger in Gohil, paras 52 to 54 and 56).Abuse of process for the purposes of FPR r. 4.4(1)(b)79.Having established, per Lord Wilson in Vince v Wyatt at para 27, that a case involving a claim for a financial remedy will not be captured by FPR r 4.4(1)(b) as an abuse of the court’s process and thereby liable to strike-out on the basis, without more, of a court’s view that it has no real prospect of success, what are the principles to be applied ?80.On behalf of H, Mr Elliott QC invites me to treat as inadmissible and/or irrelevant the written evidence which W has put before the court to meet her former husband’s ongoing allegations as pleaded in his Particulars of Claim. He further submits that, to the extent that Mr Glaser QC seeks to debate the factual merits or to suggest that H’s allegations are not realistically sustainable, those submissions should be disregarded. In support of this submission he relies on a number of cases12. In the light of all that was said by their Lordships in the Supreme Court in Vince v Wyatt and the combined appeals (albeit separate judgments) in Gohil and Sharland, I am unable to accept that proposition. The cases to which he has referred concerned civil claims brought within the procedural framework of the CPR. In none was there a separate, but corresponding, obligation imposed upon the court to exercise a quasi-inquisitorial jurisdiction for the purposes of a holistic evaluation of all the facts set out in section 25 of the 1973 Act. That obligation, combined with the clear terms of para 13.8 of FPR PD9A and FPR 1.1 FPR 2010, impose on the court the essential obligation of conducting a provisional evaluation of the issues including the isolation of those issues (if any) which the court considers will require full forensic investigation in the context of live evidence and cross-examination.81.W’s application to strike-out or summarily dismiss the latest set aside application was issued on 25 February 2022. With that application she submitted a witness statement by way of a rejoinder to H’s allegations pleaded in the Particulars of Claim filed with the set aside application which he had served on 16 December 2021. Each of those documents was before the court at the first case management hearing on 29 March 2022. The directions which I made at that preliminary hearing were designed to set up, and inform, the investigation of the issues which were likely to be ‘live’ in the strike-out application and, if that was unsuccessful, to look towards the substantive set aside application. In relation to the strike-out application, having heard submissions from both counsel, I gave H permission to file a further witness statement (limited in its narrative content to six pages) but exhibiting thereto “all documentary evidence on which [he] intends to rely for the purposes of the Strike-Out Application” (para 5). My order then provided for the sequential filing of detailed skeleton arguments and the filing of a joint schedule setting out all matters in issue and requiring determination at the hearing of the strike-out application. I gave Mr Elliott QC permission to renew his application to cross-examine W at the listed three-day hearing should he be instructed to take that course.82.These bespoke case management decisions were designed to provide the court at this hearing with an opportunity to consider carefully the following issues (inter alia) as set out in the joint schedule:-“Strike out application3.Should the Husband’s application to set aside the 9 November 2016 consent order be struck out or summarily dismissed on any of the following grounds:(a) The Particulars do not establish a prima facie case (the Husband says, amongst other things, that in principle this is not an available ground);(b) Abuse of process, including whether the Husband should have pursued these issues in 2016 and whether he relies on new information;(c) Delay; or(d) Inconsistency with the agreement recorded in the 9 November 2016 consent order.83.Further, during the course of this three-day hearing, I was asked by Mr Elliott QC to read/admit further documents including (i) a witness statement prepared by the wife’s former fiancé (ii) a witness statement prepared by his instructing solicitor, Ms Jones, and (iii) a private investigator’s report from Pelican Worldwide.The Henderson principle: abuse of process in the context of allegations of fraud84.In terms of abuse of process, the well-established principle is that parties to litigation are expected to advance their respective cases in litigation at a single hearing. Save in special circumstances, the court will not permit the same parties to pursue the same issues in litigation in respect of a claim or matter which could, and should, have been pursued at the earlier hearing. That principle applies whether a failure to pursue matters on a previous occasion was the result of negligence, inadvertence or even accidental omission: see Henderson v Henderson (1843) 3 Hare 100, 115, [1843-60] All ER Rep 378 (“the Henderson principle”).85.A more recent restatement of the principle was set out in a judgment of Pepperall J. In Mansing Moorjani v Durban Estates Limited [2019] EWHC 1229 (TCC) at para 17.4 his Lordship said this:-“Even if the cause of action is different, the second action may nevertheless be struck out as an abuse under the rule in Henderson v Henderson where the claim in the second action should have been raised in the earlier proceedings if it was to be raised at all. In considering such an application:(a)The onus is upon the applicant to establish abuse.(b)The mere fact that the claimant could with reasonable diligence have taken the new point in the first action does not necessarily mean that the second action is abusive.(c)The court is required to undertake a broad, merits-based assessment taking account of the public and private interests involved and all of the facts of the case.(d)The court’s focus must be on whether, in all the circumstances, the claimant is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.(e)The court will rarely find abuse unless the second action involves “unjust harassment” of the defendant.”86.Thus in order for W to successfully establish her case in relation to abuse of process as a bar or defence to the current set aside application, she must persuade the court that H is oppressively abusing the court process through repeated challenges relating to the same subject matter. For these purposes she must go beyond showing that it was open to him to raise a particular case in earlier litigation or at an earlier stage of the same proceedings. She must show in addition that his current pursuit of the point or issue is in itself abusive: see In Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2020] 3 WLR 1369. This principle has to be considered in the context of the current set aside application being framed in fraud.Takhar v Gracefield Developments Ltd [2019] UKSC 1387.The leading authority in this context is Takhar v Gracefield Developments Ltd and Others [2019] UKSC 13. The issue in Takhar was the extent to which a party was entitled to rely on evidence of fraud in circumstances where that allegation was not raised in the earlier litigation. The facts in that case involved a litigant against whom judgment was entered in a property dispute who subsequently wished to put before the court evidence that her signature to a central document in the case had been a forgery.88.The Supreme Court held that where a judgment had been obtained by fraud in circumstances where no allegation of fraud had been raised at the trial which led to that judgment, a party seeking to have that judgment set aside did not have to show that the fraud could not, with reasonable diligence, have been uncovered in advance of the first judgment.89.Whilst there was no unanimity as between the individual members of the Supreme Court, Takhar also established that there are two qualifications to that general rule when the court may retain a discretion in relation to whether or not it entertains the application to set aside. The first arises where fraud has been raised at the original trial and new evidence as to the existence of the fraud is relied upon to set aside the judgment in a subsequent set of proceedings. The second relates to the possibility that a deliberate decision may have been taken not to pursue, or investigate further, the possibility of fraud in advance of the first trial even where the applicant in those earlier proceedings had suspected, or even had strong grounds for suspecting, fraud on the part of the other party. In each of these circumstances, the court may have a discretion as to whether or not it allows the set aside application to proceed: per Lord Kerr JSC at para 55, although his Lordship declined to express a final view on the question.90.Lord Sumption also expressed his provisional view that, if decisive new evidence was put before the court to establish fraud, an action to set aside a judgment or order will lie irrespective of whether it could reasonably have been deployed on the earlier occasion unless a deliberate decision was then taken not to investigate or rely on the material: see para 66.91.His Lordship explained the old rule in Henderson (above) on the basis that, once a claimant has established his right to have an earlier judgment set aside, it will be of no further relevance as a binding judgment of the court. In this sense the principle of res judicata does not arise. In this context there is a degree of elision between res judicata and abuse of process. Lord Sumption explained the relationship between the two concepts in this way at para 62:-“[Res judicata] has the same policy objective and the same preclusive effect. But, it is better analysed as part of the juridically distinct but overlapping principle which empowers the court to restrain abuses of its processes. The relationship between the two concepts was examined by this court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Countour Aerospace Ltd) [2014] AC 160, paras 22-25. Whereas res judicata is a rule of substantive law, abuse of process is a concept which informs the exercise of the court’s procedural powers. These are part of the wider jurisdiction of the court to protect its process from wasteful and potentially oppressive duplicative litigation even in cases where the relevant question was not raised or decided on the earlier occasion. …. it has been recognised that where a question was not raised or decided in the earlier proceedings but could have been, the jurisdiction to restrain abusive re-litigation is subject to a degree of flexibility which reflects its procedural character. This allows the court to give effect to the wider interests of justice raised by the circumstances of each case.” 92.As I shall explain when I consider the “new evidence” which now forms the basis of H’s current set aside application, his case is based upon an allegation that W did not sell her shares in B Ltd in 2016. He maintains that the assurance which she gave to him and the court at the November 2016 hearing, as reflected in paragraph 8.2 of the consent order which flowed from that hearing, was knowingly false and intended to mislead both him and the court. On his behalf, Mr Elliott QC submits that W cannot say that H should have proceeded with a trial of the contested litigation on that occasion when she herself had assured him that she had sold her shares. As Mr Elliott QC put it, “he did not positively know it was a fraud and he did not have sufficient evidence at the time to establish that it was a fraud despite his suspicions”. In this context he relies on para 63 of Takhar and Lord Sumption’s judgment that there was no obligation on H to conduct himself or his affairs on the footing that W was being dishonest unless he knew that to be the case.93.Lady Arden JSC recognised in Takhar the greater difficulty which arises in precisely this sort of situation where, at the time of the original action, a party suspects a fraud but either fails to investigate it, or decides not to investigate further: see para 94. As her Ladyship acknowledged, justice in this case may not be so easily answered by allowing an unfettered right to bring a fresh recission action. At para 95, she said this:-“There are factors which favour some restriction on the victim’s right in this situation. The judgment in the original action will be final and conclusive (subject to any appeal, and it is to be noted that on any appeal lack of reasonable diligence in obtaining the new evidence for the trial would be relevant). Finality in judgments leads to certainty, and hopefully to the social benefits of dispute resolution. Where property is in issue (e.g. the ownership of a business), the owner following a final judgment can develop it, invest in it and use it as security to raise money to develop other businesses free from the risk that it might be claimed by someone else. That also is for the economic and social benefit of the community, and there is a social and economic cost if that process is delayed.”94.As we see, that is precisely what has happened in this case. With the 2016 consent order in place, W has pursued long-established entrepreneurial talents and resources to establish BT (formerly Ltd, now Plc), the corporate entity which now holds all the shares in B Ltd. In terms of the legal ownership of the shares, that much is not challenged by H. His claim in terms of his current set aside application is based upon a case that his former wife is the true beneficial owner of some, if not all, of the B Ltd shares which she contends were sold to MP.95.Thus, to summarise and drawing these legal strands together:-(i)The principle established in Takhar is that there is no rule per se that a lack of diligence in a first, or previous, claim leads to a ‘blanket ban’ on bringing a subsequent claim to set aside an order or judgment which the claimant can properly allege was obtained by fraud. (ii)Abuse of process in the context of a strike-out application informs the exercise of the court’s procedural powers. Those procedural powers have been codified in the context of financial remedy proceedings by FPR r 9.9A and para 13.8 of PD 9.9A as set out above. (iii)It is clear that, in this context and on the facts of the present case, it is not enough for the purposes of his set aside application for H merely to allege that the 2016 consent order was obtained by fraud or non-disclosure. Para 13.8 is clear in its terms. Whilst the case management powers conferred on the court must always be exercised lawfully in accordance with substantive law and with a careful and critical judicial eye on the overriding imperative to achieve a fair outcome, those powers are wide and afford the court a considerable discretion including a power to strike out or summarily dispose of an application to set aside. (iv)These powers form part of the wider jurisdiction of the court to protect its process from wasteful and potentially oppressive duplicative litigation even, as Lord Sumption acknowledged in Takhar, in cases where the relevant question was not raised or decided on the earlier occasion. (v)There is an important principle engaged in terms of achieving finality in all litigation. In the context of family litigation, it has long been recognised that continuing, and often ruinously expensive, litigation can impact on parties in a wholly disproportionate manner. In sanctioning the court-mandated final ‘clean break’ now encapsulated in s 25A of the Matrimonial Causes Act 1973, Parliament intended to avoid the personal, emotional and financial disadvantages of leaving former spouses and their children locked in damaging litigation. Finality in judgments leads to certainty. Where one or both parties is engaged on a commercial enterprise and/or intends to commit his or her future energies towards developing a business, it is important in the wider sense for all property issues to be resolved in order that third party commercial interests are not subsequently impugned.96.None of this disturbs the principle which was explained clearly in Vince v Wyatt by Lord Wilson JSC. In terms of the substantive law, a court is fixed with a statutory duty to apply s 25 in the context of a claim for a financial remedy order. As a point of distinction, that case did not involve the resurrection of financial claims which had been the subject of prior adjudication. It involved a claim made for the first time many years after the dissolution of marriage in circumstances where the ‘paying party’ had since created a significant financial fortune.97.Before leaving the law to consider matters of evidence, I need to refer to a further authority to which I was taken in which the court considered these principles in the context of the need for “fresh” or “new evidence”. Elu v Floorweald [2020] EWHC 1222 (QB)98.Elu v Floorweald Ltd [2020] EWHC 1222 (QB), [2020] 1 WLR 4369 was a first instance decision of Linden J. That case concerned a claim by a tenant against a landlord for breach of a repairing covenant in a commercial lease. At trial, the landlord challenged the authenticity of items on the tenant’s schedule of loss and claimed that some of the invoices produced to substantiate the cost of repairs claimed by the tenant were forgeries and no such payments had been made. Because of a failure to serve relevant witness statements on the claimant in accordance with directions made by the court, the landlord was refused relief from sanctions and the evidence was ruled inadmissible at trial. Following judgment in favour of the tenant, the landlord appealed. The appeal was stayed pending the trial of a preliminary issue on fraud in the context of which the landlord was required to serve a fresh statement of case. The tenant applied to strike out this claim on the basis of res judicata and/or an abuse of the process since the same allegations of fraud had been made in the first set of proceedings and either abandoned by the landlord at or before trial or determined in the tenant’s favour at trial.99.In the course of his judgment, Linden J considered in some detail the different observations and views as expressed by individual members of the Supreme Court in Takhar. He reached the conclusion that, in Elu, the landlord’s fresh statement of case in relation to fraud should be struck out. Applying a broad merits-based judgment to all of the facts, Linden J reached the conclusion that the landlord could and should have deployed its evidence at the original trial and its current claim amounted to an abuse of process.100.In the course of his analysis, Linden J considered an earlier case decided by the Supreme Court in 2014: Virgin Atlantic Airways Ltd v Zodiac (cited above in para 91). Having analysed the judgment delivered in that case by Lord Sumption in relation to the difference between the two principles of res judicata and abuse of process, Linden J went on to consider the application of those principles in a case where fraud is alleged. In this context he considered Lord Briggs JSC’s analogy in Takhar of the “bare knuckle fight” between the two important principles of public policy: the tension between the long-established view that ‘fraud unravels all’ and the need to ensure finality through recognition that there must come an end to litigation.101.In para 146 of Elu v Floorweald, Linden J set out his analysis of the position after Takhar. In the light of my own analysis as set out above, it is a succinct and helpful statement of the law with which I respectfully agree. As it applies to this case where an allegation of fraud has not been determined in earlier proceedings, Takhar is now clear and binding authority for the proposition that a judgment, or order, may be set aside even if the fraud could, with reasonable diligence, have been discovered and prosecuted in the earlier proceedings. That said, the judgment delivered by Lord Kerr JSC may allow a court to refuse to entertain an application to set aside such a judgment, or order, in circumstances where one or both parties have taken a deliberate decision not to investigate the possibility of fraud in advance of the first trial, even if either or both had then suspected an element of fraud at that time. In this event, there may be a discretion vested in the court to refuse to allow a subsequent attempt to relitigate or reinvestigate the same matters. Following Lord Sumption’s analysis of the position in Takhar, if a party “should” have raised and pursued the issue of fraud in the earlier proceedings, a subsequent claim may represent an abuse of process but, in these circumstances, it cannot be said that the point should have been raised “unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one”.102.It is in this context that the court has to consider any ‘new evidence’ relied on to establish the existence, or likely existence, of fraud. 103.In para 153 of his judgment in Elu v Floorweald, Linden J considered the extent to which there was a need for “fresh” or “new” evidence and a possible tension, or overlap, between Lord Sumption JSC’s reference in Takhar to both existing and available evidence not being “deployed” at the time of the earlier proceedings and “fresh” or “new” evidence which has only come to light since those earlier proceedings were settled or resolved through adjudication. The existence of evidence known to a set-aside claimant at the time of the original proceedings and his wish to resurrect reliance on that evidence will inevitably inform arguments relating to res judicata and abuse of process so as to engage public policy considerations of finality in litigation. The existence of reliable “new” evidence will engage the competing principle of the extent to which fraud can be established so as to vitiate the earlier judgment or order.104.As Linden J acknowledged in Elu v Floorweald, the issue which the Supreme Court was asked to determine in Takhar was whether there was a requirement imposed on a set-aside claimant to show that the alleged evidence of fraud could not, with reasonable diligence, have been discovered. It was not whether, “having discovered the evidence of fraud, there was a condition that the case was prosecuted with reasonable diligence”: see para 156(iv). The Supreme Court did not, and was not asked to, express a clear view on when such a claim might be an abuse of process. Lord Kerr JSC left that question open. Lady Justice Arden JSC agreed and, as set out above, she took the view that it may be open to the proposed respondent to the second set-aside application to make a further application to bar its further progress on the basis of an abuse of process argument.105.In this context, it is relevant in my judgment to bear in mind the clear endorsement which Lord Kerr JSC gave in Takhar to Aiken LJ’s statement of principles which must be applied to set aside judgments procured by fraud in Royal Bank of Scotland plc v Highland Financial Partners [2013] 1 CLC 596 at para 106:-“The principles are briefly: first, there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be ‘material’. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.” (Emphasis added.)106.In this case, as I have set out in para 27 above, H came to court in November 2016 expecting to run a full forensic investigation of his case against W presumably with a view to securing findings that she had been dishonest and perpetrated a fraud on him and on the court. In pursuing his case, he had made it clear through his counsel on the first day of that hearing that he was then considering “perjury or private prosecutions … because he does not wish to let this drop”. There was the prospect at least of a renewed challenge to my original finding in 2015 that there was no evidential foundation to link W with the offshore entity, Zinc, and other offshore entities which featured in an organogram which had been exhibited to H’s section 25 statement prepared specifically for the purposes of that challenge. As matters developed, he was prepared to proceed from the foot of his former wife’s renewed assurance (recorded in the consent order) that she had disposed of her personal shareholding in B Ltd and retained no further beneficial interest in those shares. I cannot know now with the benefit of hindsight whether, as at 9 November 2016, he had truly abandoned those suspicions or the belief that his former wife was presenting to the court a fundamentally dishonest presentation of the facts. I cannot know whether he was genuinely “taken in” by the assurance she gave and, on that basis, decided to instruct his legal representatives to compromise his claims. In my judgment, Mr Yates’ explicit reference to the prospect of a further attempt to reopen matters were “the wool being pulled over their eyes” is highly suggestive of the existence of significant residual concerns on the part of H notwithstanding his willingness to compromise on that occasion. 107.What I do know, and my finding on this point, is that there was plainly a deliberate decision by both parties in November 2016 to abandon their respective arguments in relation to non-disclosure so as to draw under these matrimonial proceedings a clear bright line of finality. The deal which was struck encompassed all aspects of the litigation, including the outstanding and unpaid costs of the previous set-aside proceedings. There was nothing left on the table to be decided. The comprehensive order which I approved at the conclusion of those proceedings contained a raft of recitals and an undertaking by H which both buttressed and reinforced the parties’ joint intentions at the time that this was to be the end of five years of bruising litigation which had lasted significantly longer than their short childless marriage.