Crossley v Crossley
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe:,Lord Justice Keene,Lord Justice Wall |
| Judgment Date | 19 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1491 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/2569 |
| Date | 19 December 2007 |
[2007] EWCA Civ 1491
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE BENNETT)
Lord Justice Thorpe
Lord Justice Keene and
Lord Justice Wall
Case No: B4/2007/2569
Mr C Howard QC and Ms S Wilkins (instructed by Messrs Sears Tooth) appeared on behalf of the Appellant
Mr J Turner QC and Mr D Nagpal (instructed by Messrs Withers LLP) appeared on behalf of the Respondent
Mr Howard QC, leading Ms Wilkins, brings this application for permission before the court on behalf of the wife, who is locked in ancillary relief proceedings with the husband. The papers suggest that the husband is a 62-year-old property developer who has an independent fortune which he declared to be in the order of £45 million in December 2005. The wife, who is some 50 years of age, at the same date declared her fortune to be worth, I think, some £18 million.
The parties had met in about June 2005 and became engaged in September 2005. Thereafter there were negotiations between experienced lawyers to settle the terms of a prenuptial contract. This seems to me to have been an entirely appropriate step for the parties to take. The husband had been married once before and had had a long-term previous relationship, and had four children as a result. The wife had been three times previously married and had three children from those previous marriages.
The prenuptial agreement was signed on 16th November 2005 and its terms were recorded in the judgment of Bennett J which we are this morning reviewing. He said:
“The critical part of the premarital agreement is in Article 8, which is to the effect that both of them should walk away from the marriage with whatever they had brought into it. That may be a rather inaccurate way of putting it but that is broadly what it amounts to. At 8.3(c) it says:
'Neither party shall apply to any court in any jurisdiction for any order for financial provision of any kind based on the marriage of Stuart and Susan…'”
The marriage was celebrated on 5th January 2006 and seems to have brought little or no happiness to either of the parties. By the month of March 2007 they had separated, and on 15 th August 2007 the wife petitioned for divorce.
On 11th September 2007 she issued a Form A, which is the preliminary step that a petitioner may take to pursue her claims for financial provision. The effect of such an issue on 11th September was to trigger a date for the exchange of Form E's —7th November. Questionnaires and other documents would then have to be exchanged on 28 th November and there would be a first appointment before the court on 12 th December. Plainly that was a development that was not going to go unchallenged, given the terms of the prenuptial agreement, and on 20 th September the husband issued a summons, which sought by its first paragraph an order that the wife show cause why her claims for ancillary relief should not be resolved in accordance with clause 8 of the premarital agreement entered into by the parties. Paragraph 2 sought consequential directions including transfer to the High Court and the vacation of the automatic timetable flowing from the issue of the Form A.
That was the summons that came before Bennett J on 30th October. At that date the husband was represented by Mr Lewis Marks QC and Mr James Ewins. The wife was represented by Mr Philip Moor QC, who had settled a skeleton argument eloquently elaborating her case in resistance to the husband's application. There was an equally full submission in writing by leading and junior counsel for the husband, and accordingly Bennett J had an opportunity to consider the relatively short procedural point that was before him for decision. He said at the outset: -
“MR JUSTICE BENNETT: Thank you both for your summaries and your skeleton arguments. Do you want to hear what I have got in mind?
MR MARKS: My Lord, certainly.
MR JUSTICE BENNETT: I think Form Es should be completed without documents, without questionnaires, and in the Form Es it can be explained why the prenuptial agreement is or is not what I would call a knockout blow. The first appointment will be adjourned to the hearing in front of the High Court Judge hearing the application of Mr Marks.”
That proposal was clearly acceptable to Mr Marks. Mr Moor then sought to dissuade the judge from his preliminary approach. He said that his case was that the matter could not be dealt with as a preliminary point, to which Bennett LJ responded:
“You can argue that out in front of the Judge in February.”
Mr Moor went on to state that an important plank of his case was that the husband had not made full disclosure of the fortune upon which the prenuptial agreement had been negotiated. He said specifically:
“We are asserting non-disclosed assets in Andorra and Monaco.”
In relation to the first point Mr Marks in reply was quite specific. He said:
“…we are not suggesting for a moment that a judge would simply reach a conclusion, without regard to the other s.25 factors, that this claim should be dismissed. Our contention will not be that there is an agreement and, there, that is the end of it. It will be, as we have made, I thought, very plain in our document, that there is an agreement and, in all the circumstances of the case, the wife should be held to it because it is a short childless marriage, where both parties are independently wealthy and where neither of them have made any significant monies during the course of this marriage.”
Mr Moor had pressed for conventional delivery of questionnaires, so that he might develop the case that there were very substantial concealed assets in Andorra and in Monaco. The judge's solution was to direct, as we see from paragraph 15 of his judgment, that Mr Tooth, who acts for the wife, should write a detailed letter as soon as possible to the husband's solicitors setting out the wife's case on non-disclosure to be answered by the husband in his Form E. He continued: “It seems to me that even having heard Mr Moor's persuasive submissions I should adhere to that which I provisionally proposed to counsel at the beginning of this short hearing.”
So matters ended on 30th October, and on 8 th November the letter directed by paragraph 15 was written and it was supported by some documentation that demonstrated payments out from an account in Andorra. The husband had, through the lips of Mr Marks on 30th October, accepted that there was such an account in his daughter's name over which he had powers of withdrawal, and he had accepted that there was some account in Monaco which had been used in order to defray charges relating to the use of a yacht. So it hardly seems to me that the delivery of the letter of 8th November opened any major areas for judicial investigation: but that is only a superficial view and a profounder view will have to be taken by the judge who takes the case on 13th February.
The appellant's notice challenging the case management of Bennett J was filed on 14 th November, and on 19 th November...
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