Clive Douglas Christopher Joy-Morancho v Nichola Anne Joy
| Jurisdiction | England & Wales |
| Judge | Sir Peter Singer |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWHC 2086 (Fam) |
| Docket Number | Case No: FD11D03744 |
| Court | Family Division |
| Date | 11 August 2017 |
[2017] EWHC 2086 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Peter Singer
Case No: FD11D03744
Mr Martin Pointer QC and Mr Nicholas Wilkinson (instructed by DWFM Beckman) for the Applicant
Mr Daniel Sokol (counsel authorised to conduct litigation on a direct access basis) for the Respondent
Hearing date: 3 July 2017
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.
Introduction
I will refer to the parties as the husband (H) and the wife (W) notwithstanding the fact that the one disputed aspect of the divorce proceedings instituted here by W 6 years ago now, in July 2011, so far finalised is their divorce, made absolute on 31 March 2015. Meanwhile litigation concerning their finances and (in France) their children has continued to run concurrently. One aspect of their financial disputes is this application lodged by H on 1 December 2015 whereby he sought and continues to seek the downward variation (as is submitted on his behalf, to a nominal order) of the spousal periodical payments of £120,000 p.a. which I had made three months earlier by my order dated 28 August 2015, to run from 1 November 2014. H also invites me to backdate this variation to 1 November 2014 and to remit any arrears which might in the event remain.
In a manner which I shall trace his variation application wended a dilatory course over the ensuing 21 months until it concluded in a hearing comprising a day of submissions only from counsel. Acting for him on 3 July 2017 have been Martin Pointer QC and Nicholas Wilkinson instructed by Sofia Moussaoui a partner in DFWM Beckman solicitors (Beckmans), all of whom have acted for H for some years now. Daniel Sokol, a member of the English bar authorised to conduct litigation on a direct access basis, has come relatively recently to the lists to represent W, seconded on this occasion (as at the 26 May 2017 directions hearing which preceded it) by his father Ronald Sokol who has for some years represented W in the French proceedings primarily related to the parties' 3 children, boys now aged nearly 12, 10, and nearly 7. Mr Sokol senior has amongst other qualifications membership of the English bar, and they have been assisted by a London solicitor, Ms Joshi, who however (as I understand it) is instructed as an agent by Daniel Sokol and is not on the record as acting for W as such in these proceedings.
These combined endeavours in relation to this variation application in this jurisdiction have generated estimated costs liabilities of about £100,000 on H's side and, as at the conclusion of the May 2017 directions hearing, some £77,000 for W. Although I am not privy to the details of the financial arrangements on either side, as things currently are said to stand neither team of lawyers can have much optimistic expectation that their bills will be met soon if ever. This current spate of litigation is thus already beyond the point where it is proportionate, and would indeed necessarily be regarded as ruinous, if indeed either of them has still the substance left out of which to defray its expense. Each of these former spouses is, on the face of it, deep in debt: in H's case alone, in relation to historical and current legal costs alone, his liabilities to his present lawyers must now exceed £300,000. That sum is in addition to the 'upwards of £2 million on costs in this jurisdiction, and unknown but no doubt significant amounts in France and in Switzerland' which I recorded (at [191] of the August 2015 judgment) the parties had spent up to that point.
The August 2015 order
It will be necessary for me to refer to a number of passages from that, the main money judgment, but first a description of its salient provisions for current purposes. For the reasons expressed in the judgment the order required H to pay periodical payments at the rate of £10,000 monthly from 1 November 2014 during joint lives, until W might remarry or until a further order of the court. The order was made upon the basis that W was to give credit 'for such sums as she in fact receives pursuant to any child maintenance order made in France and for any actual payments made by or on behalf of [H] in respect of her rent.' Throughout the period in question the combined child maintenance fixed by the French court has been and remains €3,600 per month, and W and the children have continued but may not much longer continue to occupy a property, close to where H continues to live at Château T, which commands a rent of €2,200 per month.
In the light of my detailed findings concerning the cogency of the case presented by H at the main hearing I adjourned W's claims of a capital nature under MCA section 24 and for pension sharing orders 'subject to and in accordance with the timetable and directions' then set out. I provisionally fixed 26 May 2017 for a directions hearing before me, to be followed (subject to those directions) by a three-day hearing on 3 July 2017. I provided for H succinctly to update his capital and income position annually at the end of each April from 2016 onwards 'in such a way as to enable [W] to ascertain the state of his finances from that document.' I also made a costs order against H, and required him to make a prompt on account payment of £334,263 with which he has not complied.
It can thus be seen that these two most recent hearing dates were intended for consideration to be given to W's outstanding capital claims 'unless adjourned with the consent of both [parties] or brought forward on an application by either [party].'
On 26 May 2017 I directed that this variation application must be heard and concluded before any consideration could be given to W's outstanding capital claims (if pursued at this point, as to date it seems they are to be) and indeed to her additional application for enforcement of what (as at the end of March this year) W asserted were just short of £200,000 of arrears of maintenance, plus some £15,000 of interest (those figures being disputed by H).
The August 2015 judgment
This is reported as Joy v Joy-Morancho & Others (No 3), [2015] EWHC 2507 (Fam), [2016] 1 FLR 815. In the following early paragraphs I described what was the principal issue of fact in the case.
2 Between December 2014 and February this year I considered carefully the extent of the issues and evidence necessary to establish my conclusions on the principal issue of fact I have to decide. That is whether or not the situation described by Mr Joy (H) is accurate so that he is in truth and in fact able for the foreseeable future to pay only modest periodical payments to W and their three children, but nothing whatever by way of capital award. That proposition and that outcome depend upon whether H really faces the financial ruin he maintains overwhelmed him as a result of what he describes as the day of reckoning imposed on him by the trustees of the New Huerto Trust (NHT). Those trustees now pursue him and all those assets to which he can lay claim (and more), so he will be left without substance. His debts therefore exceed by far any assets available or likely to become available to him. His case is moreover that he has been permanently and irrevocably excluded from any potential future benefits from NHT.
3 NHT is a trust H (as settlor) established in the British Virgin Islands (BVI) in December 2002. The trust had until recently as its trustee a Hong Kong based management company Royal Fiduciary Group (RFG) of which Tim Bennett (TB) is a director. … TB does very clearly emerge as the human face and mind of the trustees, taking the lead in speaking for them and in informing and forming RFG's decisions in relation to NHT and H. … The protector of the trust is a long-standing Dubai-based friend of H, Mr Richard Smith (RS).
…
5 Only after resolving where I believe the truth lies on that primary issue of fact – whether H's plight is genuine or a contrived facade — can I proceed to consider the by no means straightforward question what capital provision, if any, in the context of a global award should be made for W; and then how she may be able to receive it if, as seems inevitable in the circumstances of this case, payment is not facilitated by those who may seek to delay or to thwart her.
My conclusions as to this were emphatic, and I next incorporate their bulk:
169 At [32] and [33] of the judgment I gave in March last year, [2015] EWHC 455 (Fam) I summarised what, at that interlocutory stage, was the burden of W's case thus:
"It is in the light of this very unsatisfactory history that W invites me at this stage to take the most jaundiced view possible of H's and the Trust's and possibly also EFG's presentation. [Explanatory note: EFG is a bank where both H and NHT as customers had enjoyed facilities.] She invites me to conclude that what has been produced and presented is a stage-managed and crafted but fictional drama which has the underlying and collusive sub-text that H will when the dust settles return to a position where he has access, direct or indirect, to trust assets and to their value to meet his income and capital needs. She points to the hint in the 3 December meeting notes [Explanatory note: notes produced by TB of a meeting convened in Hong Kong in December 2013 attended by H and Sofia Moussaoui and RS.] which suggest that when the time is ripe H may be taken on as an employee of the Trust or one of its businesses and paid a salary. …
"At the final hearing it may be asserted that the gloom and doom now attending H are mere theatrical devices which some time after the curtain on these...
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