Floros Charalambous v Martha Joannou Charalambous
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice May,Lady Justice Arden |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1030 |
| Date | 30 July 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/2004/0836 PTA |
[2004] EWCA Civ 1030
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
MR JUSTCE WILSON
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Thorpe
Lord Justice May and
Lady Justice Arden
Case No: B1/2004/0836 PTA
FD02D06673
Mr N Francis QC & Mr C Wagstaffe (instructed by Bolt Burdon & Co) for the Appellant
Mr V Le Grice QC and Mr T Carter (instructed by Phillippou & Co) for the Respondent
Mr M Emanuel (instructed by Hodge Jones & Allen) for the Litigation Friend
Floros Charalambous (the husband) married Martha Charalambous (the wife) on the 17 th June 1984. There are two children of the family, a girl of twelve and a boy of eight, who are separately represented before us by their litigation friend, Helen Sheeran. Before the birth of the second child the husband's mother created a Jersey settlement known as the Hickory Trust.
The financial affairs of this family are shrouded in mist. There were a number of business enterprises, including the operation of care homes for children and an estate agency. There is a document which seems to show that in February 2000 the husband suggested that his assets totalled £43M. However by the 1 st of October 2000 bankruptcy petitions were issued against the husband and wife and in the resulting proceedings it was asserted that on the 1 st November 2000 there was as estimated deficiency of approximately £5M. However the creditors asserted that there were undisclosed assets and interests. In that climate it is not difficult to imply a motive for the deed of appointment and removal dated 8 th January 2001 under the terms of which both husband and wife ceased to be beneficiaries under the Hickory Trust.
The marriage broke down in 2002. Both parties petitioned for divorce in September following a separation in July. Ancillary relief proceedings commenced with the filing of the wife's form A on the 8 th October 2002. Since then there have been continuing ancillary relief proceedings in the Family Division and bankruptcy proceedings in the Chancery Division. I need only refer to the wife's amendment of her form A on 24 th April 2003 to include an application under S.24 of the Matrimonial Causes Act 1973 for the variation of the Hickory Trust as a post-nuptial settlement. The husband challenged the court's jurisdiction under S.24. He denied that the Hickory Trust was a nuptial settlement. Alternatively he relied upon the provision of the settlement conferring exclusive jurisdiction on the Jersey courts and the provision in the settlement establishing Jersey Law as the proper law of the settlement and the provisions of the Recognition of Trusts Act 1987 importing into English Law the provisions of the Hague Convention of 1 st July 1985 on the Law Applicable to Trusts and on their Recognition.
These issues were debated before Wilson J at a three-day hearing commencing on the 1 st March 2004. He handed down his reserved judgment on the 2 nd April 2004. He rejected the husband's various challenges and granted a declaration that the court had jurisdiction to vary the Hickory Trust under S.24 (1) (c) of the 1973 Act. He refused the husband permission to appeal and gave directions for the further conduct of the proceedings.
On the 15 th April 2004 the husband sought permission to appeal and on the 19 th April I ordered an oral hearing on notice with appeal to follow if permission granted. That hearing was expedited to 29 th June 2004 since Wilson J had fixed a five day hearing to commence on 12 th July to be followed by a further five days commencing 11 th October 2004. Whether those hearings will succeed in dispelling all the mist surrounding this families' financial affairs seems to me questionable.
This chronology of the past, present and prospective ancillary relief litigation compels the familiar question: are the legal costs incurred disproportionate to what is in issue? Here both parties assert that they are either insolvent or in straightened circumstances. However the wife's case is that the husband has access to funds which he has not revealed, in breach of his duty in the current proceedings in ancillary relief and insolvency. She asserts that the proceeds of sale of the estate agency will amount to about £250,000 and would be apparently payable to the Hickory Trust. Those proceeds of sale are targeted by the wife's application under S.24 and are protected by an injunction which she has obtained to prevent the liquidator from making any payments other than to third party creditors. In those circumstances this court called for an account of all sums already spent and likely to be spent in the current proceedings. I take first the costs of the litigation friend. Her skeleton argument was received on the 25 th June, one clear working day before the fixture. She did not seek the court's directions as to whether counsel should be briefed and at the end of the day we questioned whether counsel's attendance had been necessary, given that the litigation friend had little or no contribution to make to the legal argument. Mr Emanuel explained that the litigation friend had not been served with much of the relevant court papers and that his decision to attend was in part to understand better what the case was about. Subsequently Mr Emanuel very responsibly waived his fee for the 29 th June. In those circumstances the costs of the litigation friend to date are £7,000. Prospectively the costs of the further hearings in the Family Division are put at approximately £27,500 if the litigation friend's involvement is limited to two days or approximately £42,000 without such limitation.
These are the comparable figures for the wife costs to date £175,000 and to be incurred a further £112,385. Of the costs incurred to date approximately £90,000 are publicly funded.
The comparable figures for the husband are £217,000 to date and to be incurred a further £36,000 (plus VAT) . Of the costs incurred to date approximately £107,000 are publicly funded.
These figures speak for themselves. I hope that the Legal Services Commission will take note.
The judgement of Wilson J in the Family Division is reported at [2004] 2 WLR 1467. I am in no doubt that he was right to grant the declaration which he did. I would however reason that conclusion differently, partly because the respondent's case on appeal is more extensive than it was below. By Respondent's Notice dated 22 nd June 2004 the following additional ground was advanced: -
"As a matter of the conflict of laws, the petitioner's application to vary the Hickory Trust should be determined by reference to the Divorce Law of England and Wales and not by reference to the Recognition of Trusts Act 1987."
This is fleshed out in paragraph 14 of the skeleton argument of Mr Le Grice QC which reads: -
"The proper characterisation of the issue shows that the Court is concerned with the powers of the divorce courts rather than the "validity, construction, effects and administration of a trust." As a result the English conflicts rule on financial relief after divorce prevails."
Before attempting to reason my conclusions it is necessary first to record the relevant statutory material and the crucial provisions of the Hickory Trust. I will then summarise the submissions of Mr Francis QC and Mr Le Grice. Finally I will state my conclusions.
The contending statutes are the Matrimonial Causes Act 1973 and the Recognition of Trusts Act 1987. I need cite only part of S.24 of the Matrimonial Causes Act 19973 as follows: -
"24. – (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say –
(a) an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion;
(b) an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the family or either or any of them;
(c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties of the marriage other than one in the form of a pension arrangement (within the meaning of section 25D below);
(d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement, other than one in the form of a pension arrangement (within the meaning of section 25D below) ."
Subject, however, in the case of an order under paragraph (a) above, to the restrictions imposed by section 29(1) and (3) below on the making of orders for a transfer of property in favour of children who have attained the age of eighteen.
The principal purpose and effect of the Recognition and Trusts Act 1987 is to introduce into our domestic law the Hague Convention on the Law Applicable to Trusts and on their Recognition. Accordingly I need only cite part of S. 1 of the statute as follows: -
...To continue reading
Request your trial
-
Nichola Anne Joy v Clive Douglas Christopher Joy-morancho (First Respondent) Nautilus Fiduciary (Asia) Ltd (the trustee of The New Huertotrust) (Third Respondent) LCAL Anthology Inc. (Fourth Respondent)
...is also varied although that settlement is not within s.192." 109 In the Court of Appeal decision in Charalambous v Charalambous [2004] EWCA Civ 1030, [2004] 2 FLR 1093 Arden LJ at [53] when considering the scope of the word "made" within the statutory context of a "settlement … made on th......
-
Li Quan (Petitioner) v William Stuart Bray and Others
...[1996] AC 375, [1995] 3 WLR 141, [1995] 2 FLR 13, HL. Burnett v Burnett [1936] P 1, [1935] All ER Rep 490. Charalambous v Charalambous[2004] EWCA Civ 1030, [2004] 2 FCR 721, [2004] 2 FLR 1093, sub nom C v C (Ancillary Relief: Nuptial Settlement) [2005] Fam 250, [2005] 2 WLR 241. Lort-Willia......
-
Radmacher (formerly Granatino) v Granatino
...Dicey, Morris and Collins, Conflict of Laws, vol 2, 14 th ed 2006, Rule 91(7), and e.g. C v C (Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030, [2005] Fam 250, at para 104 The United Kingdom has made a policy decision not to participate in the results of the work done by the Eur......
-
Ben Hashem v Al Shayif
...when the provision was recast in 1973. However, and that said, as Thorpe LJ noted in C v C (Ancillary Relief: Nuptial Settlement) [2004] EWCA Civ 1030, [2005] Fam 250, at para [27], “it is common ground that there is no material distinction throughout these 278 228. I should add that the o......