Antje Kicinski v Peterpaul Pardi
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 05 March 2021 |
| Neutral Citation | [2021] EWHC 499 (Fam) |
| Date | 05 March 2021 |
| Court | Family Division |
| Docket Number | Case No: BV18D15485 |
[2021] EWHC 499 (Fam)
Mrs Justice Lieven
Case No: BV18D15485
Appeal Court Ref. No. FA-2020-000140
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Webster QC (instructed by Farrer & Co) for the Appellant
Duncan Brooks (instructed by Harbottle & Lewis) for the Respondent
Hearing dates: 21 January 2021
Approved Judgment
This judgment is being handed down in private on 5 March 2021. It consists of [62] paragraphs. The judge hereby gives leave for it to be reported.
This is the latest stage in a protracted piece of financial remedies litigation between Ms Kicinski (“the Wife”) and Mr Pardi (“the Husband”). Although the marriage has ended, I will continue to refer to them as Wife and Husband for the sake of simplicity.
The Wife appealed a decision of Recorder Allen QC (“the Judge”) dated 16 July 2020. Permission to appeal was granted by Mr Justice Cohen on 26 August 2020. The substantive appeal is listed for 2 days in April 2021. The matter listed before me was whether a stay should be granted to the Wife to allow her not to transfer certain monies from a Swiss account pursuant to the order under appeal. The hearing was also listed to consider the Husband's applications (made by way of his Respondent's Notice dated 21 September 2020) to set aside permission to appeal or alternatively to attach conditions to permission. However, the Wife's grounds of appeal have somewhat narrowed since the grant of permission to appeal. In those circumstances, Mr Webster QC, on behalf of the Wife, suggested that if the court had time, and had been able to read into the case, it would be efficient for me to deal with both the stay and the outstanding points on appeal. Mr Brooks, for the Husband, agreed that I should deal with the appeal if there was time to do so. As it turned out, the issue around the stay and the appeal were largely intertwined and having read into the case I decided the just and proportionate approach was to determine the stay and the appeal, and I therefore deal with both in this judgment.
The background
The background is fully set out in the Judgment and I will not repeat the detail. The parties married in November 1991 and have two adult children. The Wife is a German national and the Husband a dual Italian/US national.
One part of the financial dispute concerned approximately €8m in cash and securities in four Swiss bank accounts in the Wife's sole name. The funds in these accounts were transferred during the marriage from the Husband's uncle and aunt, Angelo Montone and Helge Peterson (“U&A”) to the Wife. U&A executed notarised deeds of gift and made gift declarations when donating the funds to the Wife.
After the divorce proceedings commenced there were tax problems centring on those funds. U&A had not paid tax on the funds in Italy (although they have subsequently done so). The Wife had not initially declared the funds to HMRC. In 2018 the Wife made a voluntary disclosure to HMRC and entered into a contractual disclosure facility – Code of Practice 9 (COP 9), making a full report to HMRC. After the October 2019 hearing a settlement was reached between the Wife and HMRC, with the Wife making a payment on account of £260,000 in full and final settlement of her tax liability. It should be noted that these events became an issue in the proceedings with the Husband arguing that the Wife was not beneficially entitled to the funds and that the Wife's self-reporting to HMRC amounted to “conduct” within the meaning of the Matrimonial Causes Act 1973 s.25(2)(g).
On 6 December 2018 the Wife was served with a notice of claim instituted by U&A in Lucca, Italy for her to return the Swiss funds to them. The U&A instructed an Italian lawyer, Avv Grisanti, in those proceedings. The Wife instructed Withers Solicitors (in Italy) with Withers also acting for her at that stage in the English proceedings.
The final hearing of the financial remedies proceedings was listed before the Judge on 21 October 2019 for 4 days. The Wife gave evidence and was cross examined. However, at the same time, negotiations were going on outside court. On the morning of the fourth day the parties had reached an agreement and both counsel (Mr Dyer QC for the Wife and Mr Brooks for the Husband) asked the court to approve the agreement as a Rose order (I will return to the meaning of that term below). The Judge made the said order that day. The U&A were not represented in the English proceedings. However, it is clear from emails that have been put before the Court that there were discussions between those acting on behalf of the Husband and the U&A's Italian lawyer about the terms of the agreement.
The Heads of Terms that were agreed and were incorporated into the order are highly relevant to the issues that I have to decide, and I will therefore set out the relevant parts:
1. There will be a tripartite binding agreement between H, W and H's U&A based on paragraphs 1 and 9 below.
1.1 H, W and H's U&A have agreed a full and final settlement of (i) H's and W's financial claims (in life and death) consequent upon the divorce; (ii) U&A's claims against H and W; and (iii) H and W's claims against U&A, in any jurisdiction howsoever arising;
1.2 H's U&A shall withdraw the ltalian proceedings against W forthwith, on a no order as to costs basis, and confirm no further steps will be taken in the future by them directly or indirectly in relation to the subject matter of those proceedings or any matter connected with those proceedings in any jurisdiction. To effect all of paragraph 1, [awaiting outcome of discussion between ltalian lawyers].
1.3 A deed (or equivalent) will be entered into by H, W and U&A in Switzerland and in ltaly to reflect paragraphs 1.3 and 1.4 below. Withers to prepare draft deeds in first instance and professional fees to be paid from the Swiss account LGT, Geneva *3995.159 (EUR). Withers' fees for Swiss deed agreed to be capped at €5,000 and Withers' fees for ltalian deed estimated to be €5,000 – 7,000. [H and H's U&A shall undertake not to commence, pursue or entertain any further proceedings, of any nature, against W, Withers Worldwide and any other of her professional advisers in any jurisdiction worldwide (including but not limited to ltaly, Switzerland, or the UK), in respect of any actions taken by W or her professional advisers up until 23 October 2019, or with reference to (i) these proceedings, and the assets referred to in these proceedings, (ii) the Swiss funds, (iii) the Italian proceedings, and the assets referred to in those proceedings and (iv) the COP9 enquiry].
Clause 9 of the Heads of Terms deals with the Swiss accounts. It provides that the Wife retain £1,636,783 and the rest of the balances (subject to £150,000 being paid into an escrow account) will be transferred to the Husband, subject to the following, which is in square brackets:
“On the basis that W shall apply for decree absolute in the week beginning 28 October 2019 and provided decree absolute has been pronounced and provided the financial remedy order and the Italian and Swiss documents referred to in paragraph 1 above are in place…”
After the Judge made the Rose order the drafting became contentious with draft orders going back and forth between the parties' lawyers.
On 28 February 2020 the Wife made an application for an order for the Husband to provide indemnities in the terms set out below; for the husband to pay a lump sum to cover the cost of future litigation in the Italian proceedings; and for the Husband to pay her costs since the Rose order. She made these applications pursuant to the Thwaite jurisdiction.
The indemnity the Wife sought in that application was:
“The respondent shall indemnify the applicant and her professional advisors in all jurisdictions as to any liability of the applicant's and/or her professional advisors arising from the respondent's uncle and aunt (Angelo Montone and Helge Petersen, “U&A”) commencing, pursuing or entertaining any further proceedings of any nature against the applicant, Withers (meaning Withers LLP, Studio Legale Associato con Withers LLP and Withers BVI) and any other of her professional advisors in any jurisdiction worldwide (including but not limited to Italy, Switzerland or the UK) in respect of any actions taken by the applicant or her professional advisors up until 23 October 2019 (unless such actions have not been disclosed to the respondent) or with reference to (i) these proceedings and the assets referred to in these proceedings (save for the purpose of enforcement of this order), (ii) the Swiss funds, (iii) the Italian proceedings, and the assets referred to in those proceedings and (iv) the HMRC tax enquiry.”
On 18 June 2020, after the hearing, the Wife made further applications for an order that the Husband retain the funds in the Swiss account in a UK account till U&A pass away and that the Husband maintain an address for service in the UK. This was said to provide security for the indemnities that the Wife sought, and the Wife being concerned that the Husband would leave the UK without retaining any significant assets in this country.
The Judge held a hearing on 18 May and produced a reserved judgment on 4 July in draft. The final judgment was handed down on 16 July 2020. The Judge refused to make the indemnity sought by the Wife and refused the Wife's application for costs of the hearing. After the judgment, the Wife confirmed to the Court that she did not pursue her...
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