The Court of Appeal’s recent decision in De La Sala v Copinger-Symes & ors [2026] EWCA Civ 282 is useful to practitioners for two principal reasons. Not only is it a cautionary tale about the impact of material non-disclosure in financial remedy proceedings but it is also a timely reminder about the limits of creativity for intervenors looking to find a way to recharacterise gifts (and a warning about over-complication).
The remarkable facts of the case have been well rehearsed elsewhere and involve a striking amount of wealth and family animosity – a toxic combination, but ultimately one that lawyers will be familiar with.
At first instance, HHJ Hess (sitting as a deputy High Court judge) set aside a financial consent order made in March 2022 after finding that the husband had failed to disclose his knowledge of very substantial gifts (in total c.$34 million) that he was due to receive from the wife’s family from whom she was estranged. These gifts only came to light after the order had been made and upon the husband’s application for enforcement of a payment of £850,000 that the wife had failed to pay him under the terms of the original 2022 order.
Another interesting facet of the case was that the 2022 order had been made at a hearing at which it had been noted the deputy district judge was “expressly concerned about the wording of some of the undertakings and other clauses contained in the draft order and also the apparent departure from equality in the wife's favour after a long marriage. He required persuasion on both those points” (§17). As an aside, it has become increasingly standard practice in some circles to suggest that the parties file a joint letter to the court in support of an agreed consent order, and particularly where there is a distinctive feature of the agreement. The Form D81 now has plenty of opportunities for narrative explanation but a separate letter can be useful as a quick reference point.
The husband appealed, arguing that the judge should have found that the non-disclosure was not material (it was said that as part of this, the wife knew the husband would be receiving gifts on the scale of the received sums). The wife’s mother (who had been joined as intervenor to the set-aside) also appealed, saying that the judge was wrong to dismiss her claim for mistake but in the alternative the judge should have found the gifts were conditional upon the wife not benefiting from them (a ‘failure of basis’). The gifts would therefore be recoverable by the mother.
Both appeals were heard together.
Husband’s appeal & material non-disclosure
Practitioners will often find themselves at odds with a frustrated client when advising that the impact on any outcome would not be so material as to justify setting aside an order. Moylan LJ helpfully restated the law at §58 – 64, taking in Gohil v Gohil (No 2) [2015] UKSC 61, [2016] AC 849 and Sharland v Sharland [2016] AC 871. He also quoted at §59, Lord Brandon in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, namely that the issue is whether the disclosure would have made a substantial difference to the outcome.
It was not about whether the non-disclosure undermined the whole agreement, he said, but whether it would have led to a “substantially different” or “significantly different” (per Lady Hale in Sharland) result. In the context of the case, Moylan LJ noted that the gifts “completed changed the landscape and nature of the case [...] and was very far away from a ‘relatively minor matter’ (§74) and that “The assessment of the husband’s needs alone would have been transformed if he had proper disclosure of the expected receipt” (§76). An acknowledgement that the original £850,000 would have been paid on a sharing claim meant there would have been no justification for it on a needs-basis.
The court reiterated that where there has been deliberate non-disclosure, the burden shifts to the perpetrator to show that proper disclosure would not have led to a substantially different outcome. It is not sufficient to establish only that it might not have led to a different order (§64).
The husband’s argument that the wife was aware he would receive substantial support from her family saw the court draw a distinction “between [...] a confident belief or assertion and an established fact” (§72). This is a very useful point for practitioners: even if one party suspects the other of undisclosed wealth, that does not then absolve the other of their disclosure obligations.
Wife’s mother’s appeal - intervenor gifts
The intervenor’s case was that the judge was wrong to dismiss the claim for mistake (the gifts should be set aside under the equitable jurisdiction) and in the alternative, that the gifts were the subject of an implied (and jointly understood) condition that the wife would not benefit from or as a result of them. This was the ‘failure of basis.’
Both arguments failed. In respect of the second of these (dealt with first in the Court of Appeal’s judgment), Nugee LJ observed that the mother’s own evidence undermined her case as to the gifts having been made as anything other than outright. Indeed, at one point she had said in cross-examination that “It is [the husband’s] money” and later “I cannot police what happens to that money. It was a gift.”). This was plainly not a sustainable approach to take.
Regarding mistake (which took up more of Nugee LJ’s leading judgment), the analysis of HHJ Hess’s findings and the evidence left this argument faring no better. The mother had argued her alleged mistake was a belief that the March 2022 consent order was the end of the proceedings between the parties and, accordingly, that the wife could not benefit from the gifts. Again, there is a very useful summary of the law beginning at §106 including the leading case of Pitt v Holt [2013] UKSC 26, [2013] 2 AC 108. If mistake – not “mere ignorance” or “misprediction” – could be made out, the key question was whether it was so serious as for it to be unjust for the donee (in this case, the husband) to retain the gifts.
Here, it was the husband’s cancer diagnosis that had triggered payment of the sums that the mother had previously offered him (and which he had chosen to defer). It was not the mother’s belief surrounding the finality of the March 2022 order, which it could not be shown she had when they were made, nor that this caused the gifts to be made (as opposed to the cancer diagnosis).
The Court of Appeal also considered the possibility that there had been a mistake and whether this was of ‘sufficient gravity’ to make it unconscionable for the husband to retain the gifts (§130). The Court of Appeal agreed that the potential consequences for the husband did not mean that the entire basis of the gifts had been undermined. It may even have been the case where the apparent fear may not have been realised (on the basis that the gifts may have been argued as a non-matrimonial resource or only partially shared with the wife in the financial remedy proceedings), therefore lacking the requisite gravity. The mother’s intention was that the husband should have the money unconditionally. In all the circumstances, it would not have been unconscionable for the husband to retain the gifts.
Conclusion
Involving as it does families at war and wealth almost beyond the comprehension of mere mortals, De La Sala is an interesting read on the facts alone. However, it is also a useful case for practitioners summarising the current law on the areas of non-disclosure and mistake (as well as a health warning for practitioners intervening in a family dispute).
‘Material non-disclosure’ remains a high threshold to clear – the question is whether the non-disclosure would have led to a substantially different result (a useful summary for clients keen to revisit the finality of financial orders). Here, c.$34 million was well beyond being a “relatively minor matter” (per Lord Brandon in Jenkins v Livesey).
In respect of the second appeal, intervenor cases invariably involve high-stakes litigation because of the potential cost implications. A good intervenor case is built on contemporaneous proof (which – to paraphrase Daniel Kaffee in Aaron Sorkin’s A Few Good Men – matters more than what you purport to believe), rather than a creative recasting of history without evidence in support, something the court is very much alive to.
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