Alisa Laine Thiry v Didier Thiry

JurisdictionEngland & Wales
JudgeSir Peter Singer
Judgment Date02 December 2014
Neutral Citation[2014] EWHC 4046 (Fam)
Docket NumberCase No: FD13D02240
CourtFamily Division
Date02 December 2014

[2014] EWHC 4046 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Peter Singer

Case No: FD13D02240

Between:
Alisa Laine Thiry
Applicant
and
Didier Thiry
Respondent

Mr Lewis Marks QC and Mr Harry Oliver (instructed by Forsters LLP) for the applicant ALISA LAINE THIRY

The respondent Didier Thiry neither attended nor was represented

Hearing date: 24 November and 2 December 2014

Sir Peter Singer
1

By 1pm at the end of the first morning of what had been listed as the five-day final hearing of financial remedy cross-applications between these former spouses Mr and Mrs Thiry (to whom for convenience I shall refer as the husband and wife) Mr Lewis Marks QC had completed his combined opening and concluding observations. This was achieved through a combination of circumstances: the huge documentation in the case had been culled to a single bundle in accordance with the most recent manifestation of PD 27A; the husband neither attended nor was represented; and I not only have had previous acquaintance with the case in March this year and at last month's pre-trial review but, obviously assisted by the reductio ad necessitatem of the bundle, had had an opportunity of pre-reading the proffered material.

2

If all that were not of itself to be remarked upon, other features render this case unique in my experience. On behalf of the wife Mr Marks, supported by Mr Harry Oliver and those who instruct them, invites me by way of principal relief to make lump sum orders against the husband personally totalling some €21.6 million. The basis on which this capital award is sought might be described as restorative justice rather than any exercise of redistributive discretion, without involving (save to the self-inflicted extent that the husband's conduct of the litigation has inflated the wife's costs bill and thus my costs award against him) any punitive element. I will also consider whether in fairness to the wife I should in addition order the husband prophylactically to fund provision for future costs in the event that the husband, here or in any other jurisdiction, embarks on a fresh round of litigation to attempt to secure an award of damages against the wife for alleged malicious damage to his reputation and his businesses which he has had every opportunity (in my judgment) to pursue within the ambit of this case, and as would have been consistent with the overriding objective in cases such as this. Indeed he has consistently threatened to do so but has proved unwilling, or it may rather be unable for want of objective merit, to strike home. Mr Marks has also invited me to consider making an assessment of the costs incurred by his client of and incidental to these applications on the indemnity basis by reference to a detailed schedule which comes in at a shade short of £500,000. That schedule has been overtaken by the contents of an email sent to me and to the husband on 25 November, explaining and making a number of adjustments (not least those wrought by the foreshortened hearing) which brings the total down to just a few pounds short of £456,000. That figure encompasses existing orders against the husband including two totalling £38,825 where he was directed to make prompt payment (which he has not), and interest in relation to the crystallised £38,825 at judgment debt rate since those payments fell due, calculated as far as 28 November.

3

Suffice to say at present that I propose to consider orders and to conduct a costs assessment in line with what is proposed. The form of the order necessary to reflect those elements is obviously rather fuller than that bare description would suggest, and was to an extent discussed during the course of the morning, and may need refinement in the light of the precise terms of this judgment.

4

In the ordinary course of events one would expect a spouse against whom such orders are sought to appear to defend them at final trial. This husband has since the commencement of the wife's applications by Form A dated 8 May 2013 known the bases and the specifics upon which her claim is formulated, and in addition has for quite some while now also known what target she aimed at in terms of quantum. (The exception to that is the prophylactic and conditional "fighting chest" to which I have referred as a separate element in paragraph 2 above.) Yet he has not taken the opportunity whether in writing or in person to make submissions in response to his wife's case. So, again somewhat unusually, I perceive my first task to be to demonstrate how the husband's conduct of this litigation from virtually its onset till now has led to the situation where I without qualm or compunction base myself in concluding these applications in his absence upon the material and the presentation to which I have been directed on behalf of the wife.

The litigation history

5

The family chronologies of these parties are briefly as follows. The wife is now 50 and English, and the husband 53 and a French national now living in Belgium. Each had previously been married, the wife and her former husband concluding their divorce proceedings in 2004 at which point she received some £37 million by way of divorce settlement. The husband has three adult daughters; and the wife three children of whom two are adult. In May 2006 the about-to-be spouses entered into a pre-nuptial agreement for the purposes of which the wife disclosed assets valued at £32,280,000 and the husband €10,524,000. Then on 25 May 2006 they were married. They separated seven years later in May 2013, and in that same month the wife issued divorce proceedings and instituted her financial remedies claim. Both parties were initially represented by solicitors. The wife remains represented by those she first instructed: the husband's representation came to an end when his solicitors came off the record on 20 May this year (although they had not communicated with the wife's solicitors at all since mid-March), and since then he has engaged in these proceedings (to the extent that he has) in person.

6

I will set out in abbreviated form aspects of the litigation history from May 2013 onwards which illustrate defective aspects of the husband's response to court orders and directions, and thus his attitude of contempt for these proceedings and indeed for his wife.

• The date for exchange of Forms E was extended by agreement to 12 July 2013: only after an order with penal notice attached did the husband serve his on 16 August.

• His Form E incongruously stated total capital of £42,700 but income (including benefits of various kinds) of £960,250 both for the previous year and projected forward for the next one.

• By an order made on 10 September 2013 the husband was given until 1 December 2013 to specify whether or not he relied upon conduct (for he had asserted that the wife maliciously by false denunciation provoked a baseless moneylaundering investigation of his affairs by Belgian authorities, causing him financial and other reputational damage). He neither did so nor pursued his stated intention of seeking an extension of time.

• On 4 December 2013 the husband initiated an application for (in effect) the transfer to his corporate structure of the 50% interest in the Hotel Odette enterprise held by the wife's corporate structure.

• The husband did not reply as ordered or indeed ever at all to a schedule of deficiencies in his replies to questionnaire which schedule was served on him on 5 December 2013. This despite letters from his solicitors later that month that he had for consideration the draft of his reply; and the following month that the draft replies would be subject to review with their counsel later that month; and then in February that they hoped to be able to provide the replies 'in the course of the next week or two.'

• On 12 March 2014 at what was to have been the FDR (but which could not proceed as such not least because of the absence of the husband's replies) I directed that he should reply by no later than 16:00 on 4 April 2014. A penal notice was attached in relation to that direction.

• At the same hearing I debarred the husband from filing or relying upon any evidence and documents in respect of the conduct allegations governed by the 10 September 2013 order. This proved to be the last hearing at which the husband chose to be represented (by leading counsel) although he did not personally attend then nor has done so since.

• On 21 May 2014 Newton J committed the husband to prison for four months for his contempt in failing to comply with the order to answer the schedule of deficiencies. The committal order has not been executed because the Tipstaff's power of arrest does not extend to Belgium.

• On 16 October 2014 I conducted a PTR in the husband's absence, but with the benefit of extensive annotations upon Mr Oliver's opening summary which he had transmitted by email early that morning. Amongst other directions I ordered each party by 7 November to file a witness statement setting out all the evidence upon which [they respectively] intend to rely at the final hearing in relation to these (but no other) issues: the pre-nuptial agreement; the loan from Full Moon Invest SA ['FMI'] to Concept Factory SA ['Concept']; and Hotel Odette. The wife complied, the husband has not done so.

• The same order made clear to the husband his obligation pursuant to the rules to attend the final hearing, and suspended the committal order for the whole of November giving him safe passage for the purpose of preparing for and appearing at final hearing. The order furthermore specifically recited and warned him 'that in the event either of his non-attendance … and/or his failure to file evidence [as ordered] the court may proceed … to a final determination of the applications, including making orders for the payment of money by him to the...

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