Christine Joy H (S) and Alaric Innes H
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE SUMNER |
| Judgment Date | 24 February 2005 |
| Neutral Citation | [2005] EWHC 247 (Fam) |
| Court | Family Division |
| Date | 24 February 2005 |
| Docket Number | Case No: FD01D03798 |
[2005] EWHC 247 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Sumner
Case No: FD01D03798
Mr Bruce Blair QC and Miss Ann Hussey (instructed by Messrs Hughmans) for the Applicant
Mr Philip Moor QC (instructed by Harcus Sinclair) for the Respondent
Hearing dates: 13 th and 17 th December 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 24 February 2005. It consists of 22 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
The Hon. Mr Justice Sumner:
Introduction
This is the third substantive judgment arising from an ancillary relief claim brought by Miss Cristina S against her former husband Mr Alaric H in August 2001. I shall describe them as wife and husband for convenience and to distinguish Mr H from his brother Mr Rai H who plays a part in the proceedings. The husband sadly died on 1 November 2002 one day after the first judgment was given on the parties' original claims. It followed a 9 day hearing before District Judge Brasse.
The wife appealed seeking a larger lump sum than she had been awarded. I dismissed that appeal on 27 May 2004. The present hearing arises from a costs order made at the conclusion of the original hearing. The argument on costs and judgment took about half an hour before the District Judge on the final day. Before me it lasted a day when I reserved judgment.
The two earlier judgments run to 100 pages. I shall not refer to them in any detail. I shall summarise the nature of the dispute and the parameters of the present appeal. I do so in broad terms.
Background
The parties were married in August 1982. The wife was 37 years old. She had been married before. She had a 4 year old son. The husband was aged 36. Prior to the marriage the wife lived in her own home off Regents Park in London. It was sold the same year for £230,000. She ran a successful recruitment agency. It was sold 5 years after the marriage for £2.3m.
The husband's home was sold in 1983 for £100,000. He had savings of £75,000, and ran a horticultural business. It had fluctuating success, always modest. The husband was the largest creditor.
The parties then engaged in numerous financial ventures. By the time of the first hearing in October 2002 the husband was known to be very ill. After a week the hearing was adjourned for him to have chemotherapy. He was unable to give evidence. The hearing resumed finishing with lengthy submissions. District Judge Brasse, in a judgment to which I paid credit on appeal, said —
"The history is complicated; the factual disputes are legion."
The wife sought a lump sum of just under £600,000. The husband said that they had already resolved their financial disputes and no further order should be made.
The judgment on ancillary relief
The wife was found to have carried on her business career largely independently from the husband though he did benefit considerably from her efforts. District Judge Brasse followed through a series of complicated transactions involving purchase and sale of properties and a number of ventures in which they were engaged together or separately. In 1986 the wife started a new business, RR giving the husband a half-share interest. His brother Rai was involved in various financial deals with the wife usually to her disadvantage. She considered he had profited at her expense.
Amongst the assets acquired was HN bought in 1990 for £230,000 in their joint names. Most of the purchase money was provided by the wife.
Time was spent during the hearing on the wife's allegation that an agreement with the husband in July 1996 should be set aside. By that agreement she gave up her interest in HN in exchange for the husband relinquishing his shares in RR. The wife had hoped to float this business but felt Rai had let her down. She claimed unsuccessfully that the agreement was achieved by undue influence.
Subsequently she saw documents suggesting the husband was going to sell HN. She had a caution put on the property. She subsequently lifted it on an assurance from the husband that he would protect the interest she claimed in the proceeds of sale. It was held inequitable to disregard that assurance.
The matrimonial home was sold in 1998 for net £2.12m. The wife took the first £200,000 thereafter the proceeds were divided. HN was sold for £800,000 which went to the husband. By January 1999 when the parties separated the wife had her own home worth £650,000. The husband had purchased a home valued at £450,000. The husband had by then been diagnosed as suffering from mantel cell lymphoma.
He purchased an annuity from Diligent Finance in which Rai was involved for £1.4m. It provided him with an 8% income and the right to draw on the capital up to a further 8% a year. 30% of the capital was to be to returned to his estate if he died, as he did, within 3 years of its purchase.
The genuineness of that annuity was subject to a sustained attack by the wife. Further details about it continued to emerge right up until the hearing. In the first 18 months the husband drew some £500,000 from it. Some of those drawings were regarded as his assets.
District Judge Brasse calculated the joint wealth of the parties at £3.81m. If the husband's pension and annuity were included, he had about £1.97m or 52% of the capital. If all pensions and annuities were included the wife's share went up to 56%. However the wife could not draw on her pension whereas the husband was drawing on his annuity.
He held that the wife had not employed extraordinary flair in her contribution to the welfare of the family. She had come to the marriage with a business that helped produce the wealth which flowed through their ventures and property acquisitions. It was however a very significant contribution to the welfare of the family.
But the District Judge regarded as utterly reprehensible an incident after proceedings had started where she turned up at the husband's home. There was a row. She later accepted that she had assaulted him, though she pleaded provocation. It included kicking him when he had fallen down.
He held that there should be a modest adjustment of the husband's property rights in the wife's favour. There were 3 main reasons. They were that she had primed the wealth producing pump at the outset of the marriage. She had a need for further capital investments in her business. Finally the husband had made a promise to make some provision for her in respect of the sale of HN.
He divided between the parties a sum of £22,000 from a property transaction which went to the Larch account. He gave the wife a 50% share in the proceeds of the sale of C Gardens, the share being worth £225,000. This was deferred until sale or death of the husband.
The sum of £275,000 and the appeals in March and May 2004
Part of the allegations by the wife against the husband involved a sum of £275,539. I shall refer to it as £275,000. The wife had seen a letter from Rai to the husband asking him to send that sum to Angel Stockbrokers for use by Chalice International, a company associated by the wife with Rai. Based on that letter, the wife believed that the husband had sent that sum abroad.
The District Judge held that it was possible that this sum may have been transferred out of the country. However he could not make that finding on the evidence. It did not seem that the husband had such funds available to him at the time.
Before the hearing of the first appeal, the wife applied for bank accounts from the husband's estate to trace this sum. This was refused. She made an application on 3 March 2004 for leave to appeal. This was refused by Johnson J. on the grounds that the bank accounts should have been sought earlier. He held that it did not affect the fair disposal of the appeal.
One of the grounds of the appeal before me in May 2004 was that there should have been a finding that this sum was in existence. It had been sent out of the jurisdiction. It should have formed part of the husband's assets.
On the second day of the appeal there was an application by Mr Moor for further documents to be put in front of me. I permitted this. Documents were produced by Rai showing that the £275,000 had been used by the husband to purchase shares. He had not been successful and the balance of £105,000 had gone into the husband's account. I reserved the question of costs in relation to this late discovery.
I dismissed the other grounds of appeal. They were in brief that the husband's imminent death could not have been anticipated. The considerable contribution made by the wife to the parties' wealth had not been taken into account. Insufficient weight had been given to the husband's assurance in relation to the sale of HN. Finally undue weight was attached to the Respondent's wish to leave his assets to his 6 year old nephew.
At the conclusion of my judgment I identified 2 factors which had particularly concerned me. They were the life expectancy of the husband and the financial contribution of the wife. I held that I would have been likely...
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