Browne v Browne
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE NEILL |
| Judgment Date | 23 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1123-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0992 |
| Date | 23 November 1988 |
[1988] EWCA Civ J1123-7
The Master of the Rolls
(Lord Donaldson)
Lord Justice Neill
Lord Justice Butler-Sloss
88/0992
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE WOOD)
Royal Courts of Justice
MR. M. B. CONNELL Q.C. and MR. D. R. L. BODEY (instructed by Messrs. Collyer-Bristow) appeared for the Appellant (Wife).
MR. J. B. S. TOWNEND Q.C. and MR. B. G. D. BLAIR (instructed by Messrs. Peter Carter-Ruck & Partners) appeared for the Respondent (Husband).
I will ask Lord Justice Butler-Sloss to give the reasons why we reject this application.
These are applications which are four in number: that is an application for leave to appeal against an order of Wood J. of 6th February 1986 and an application for extension of time for that application, an application for an extension of time for an appeal against a suspended committal order of 29th August 1986 and an extension of time for an appeal against a suspended committal order of 25th November 1986. There are also two applications for security for costs which do not now arise.
The order made by Wood J. on 6th February, which is the main thrust of the applications for leave by Mr. Connell on behalf of the wife, was for a lump sum order for £175,000 and costs against the wife which were estimated by both sides in the agreed figure of £95,000. Since then there have been inevitably in this particular long drawn out saga additional costs post February 1986 and interest payable on the lump sum.
The wife failing to pay within the appropriate time, there were two applications for committal on 29th August 1986 and 25th November 1986. In each case those committal orders were suspended on terms: in respect of one of them that a sum of £11,000 odd should be paid and that was in fact paid; and on the other in more general terms which it is not now necessary on an application for leave to go into, save to say that neither of those orders was entirely satisfied.
The short facts which are relevant to this application for leave are that the wife is now about 45 and the husband about 49. He is a Member of Parliament and they were married in 1965, the husband with no substantial means and the wife the daughter and granddaughter of women with substantial assets, most of them out of the country. They parted eventually in 1983 and there have been prolonged and very fraught proceedings between them, very much affected by publicity in the rather prominent positions that these two hold, and the publicity has undoubtedly had an effect to some extent on the course of the proceedings prior to today.
The present position is this. The capital sum of £175,000 has now quite recently been paid. There may be some interest still due to be paid and there may be some of the subsequent costs which are also not yet paid. But the major part of the order of Wood J. of 6th February has now been satisfied. Nevertheless, at this stage the wife—if she will forgive me for so calling her for convenience since the decree has been made absolute—wishes to pursue an appeal against the order of Wood J. on the merits of the granting of the lump sum.
The wife's application has to be seen against a background that she first applied for leave by an application on 23rd December 1986, nearly eleven months after the order was made. It is pertinent to observe that leading counsel of great experience acting on her behalf on 29th August 1986 indicated to Wood J. that they were not intending to challenge the order which he had made on 6th February. It is equally pertinent to note that in her affidavit in support of her application for an extension of time and for leave to appeal she did not seek to overturn the basis of the judgment, but rather said it was because she could not pay the sums that were still outstanding. But, nevertheless, this court is now asked to say that the judge's order was in essence wrong, and that is based on two propositions in the very attractive argument put to us by Mr. Connell. One was that the judge was wrong to find that the wife had exercised effective control over two trusts of which she is a beneficiary and, secondly, that from subsequent events it has become clear that the judge's judgment was inconsistent and wrong in principle in that it provided the requirement to exert pressure on discretionary trustees.
The wife has an interest in two trusts—one of them set up in Jersey—both of them as a result of the assets of her mother. On the imminent death of her mother the Jersey trust was set up to redistribute the assets in such a way that they would not attract taxation in this country, a perfectly proper thing to do. Her interest is as the sole beneficiary in this trust worth something in the region, according to the judge's order, of £430,000. In addition there was a further trust set up in Switzerland, taking effect in Lichtenstein, which was worth, again according to the figures presented to the judge and given in his judgment, a sum between £100,000 and £145,000. It is not entirely clear whether she is the sole beneficiary of the Lichtenstein trust, but nothing has been said to lead the court to believe that there is any other beneficiary. There is no doubt that in respect of the larger trust in Jersey she is the sole beneficiary.
In considering whether or not, as the judge found, she had effective control over these trusts, it is of some relevance to note that, prior to the divorce and parting of the husband and wife, every application by the wife for funds for herself and for her husband for any of the pursuits that they wished to engage in, pleasure as well as the buying of property, was met and the sums asked for were advanced at the request of the wife. Although, perhaps, the phrase "effective control" might more appropriately be "immediate access to the funds", in my judgment, the judge was entirely justified in coming to the conclusion as at 6th...
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