G v G; Green v Green
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE SUMNER,The Hon. Mr Justice Sumner |
| Judgment Date | 27 July 2006 |
| Neutral Citation | [2006] EWHC 2010 (Fam) |
| Docket Number | Case No: WD04D01182 |
| Court | Family Division |
| Date | 27 July 2006 |
[2006] EWHC 2010 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Sumner
Case No: WD04D01182
Mr M. Johnstone (instructed by Bryan & Mercer Solicitors) for the Applicant
Mr J. Copley (instructed by Bottrill & Co. Solicitors) for the Respondent
Mr A. Geadah for the 1 st Intervener
Hearing dates: 22 to 26 May 2006
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 27 July 2006. It consists of 25pages 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.
Introduction
This is an application for ancillary relief made by Mrs Suzanne Green, whom I shall call the wife, against her husband, Mr Philip Green. They were married in October 1997. There were no children. The marriage ended in June 2004 when the husband served a divorce petition on the wife. She started these proceedings in July 2004.
The matter was listed for a final hearing in Watford County Court in August 2005. Because of issues then arising the final hearing was adjourned and the matter transferred to the High Court. I heard the matter from 22 to 26 May 2006 when I reserved judgment.
The issues
The hearing has been dominated by the need to determine the ownership of certain properties. It is agreed that they were purchased by the husband with his parent's money in his name. He says it was pursuant to a power of attorney they granted him in 1999. The wife denies this saying they were gifts to him. It has also concerned the repayment of the mortgage on the matrimonial home with their money in March 2002 which again the wife says was a gift. This is denied by the husband who says the loan has to be repaid.
She also alleges that the husband has been in receipt of cash from his business which he has not declared. That too is disputed. Finally there is the impact of the wife removing cash from the husband before and during the marriage without telling him. The husband says it is so serious that it would be inequitable to disregard it. The removal is agreed by the wife but not its significance. Finally I have to determine the wife's claim for capital and income in the light of my conclusions on these issues.
In order for the hearing to be concluded within the time allocated, with the agreement of the parties, I gave a number of decisions during the hearing without at the time setting out my reasons. Even so the day set aside for judgment writing, itself inadequate in the light of the evidence and more than 15 lever-arch files of documents, was fully utilised by 2 sets of submissions for reasons to which I shall come.
Costs
Whilst such disputes are not uncommon, the effect on costs in this instance has been appalling. In the light of one of my decisions the total assets are less than £600,000. Because of the allegations made, the husband's father Mr Ivan Green became the First Intervener incurring costs of some £37,000. The estate of his late wife Mrs Barbara Green was made a Second Intervener with costs of some £21,000. That is serious enough. However the wife's costs total £117,000 of which £85,000 is unpaid. The husband's costs are about £123,000 with some £4,000 unpaid. The total costs are therefore all but £300,000.
This is totally out of proportion. It has made a consideration of the appropriate order very difficult. I have been addressed bearing in mind the costs so far paid and owing by the parties but not any liability for them. This has presented difficulties. The problems are only increased by the wife's present ill-health and inability to work. There is also the need for the husband to provide a home for his 2 children as well as himself. Sadly the prospect of both parties being reasonably re-housed is now no longer possible.
It raises the question of whether there should be some restraint or intervention before parties are crippled by costs to the extent that has happened here. It has I suspect been driven by the wish of the parties or one or other of them to leave no stone unturned in their search to prove their case. It has led to the prospect that whatever decision I reach may well be ineffective when the time comes to consider any liability for costs. It is a position which I regret.
Representation
The wife has been represented by Mr Johnstone, the husband by Mr Copley, and the first intervener by Mr Geadah. I shall set out a history of the marriage before coming to the particular issues in dispute.
The marriage
The wife is 44 and the husband 45 years of age. They met in 1993 when they were respectively 32 and 33. They had both been married before, the wife twice. The wife has one son, Robert, now 26 years of age. He lived both with his mother and his maternal grandparents when he was growing up.
The husband has 2 children both living with him. They are Claudia who is 18 and in her last year at school and Matthew is 16 with 2 further years of school. Claudia was 5 and Matthew 3 when the parties met. What follows represents my findings of fact unless the context otherwise indicates.
The parties I accept started living together in 1994 in the husband's property in Borehamwood. He ran his own travel business, Elite International Travel Ltd. He had savings, insurance policies and a small pension scheme. The extent of his assets at that time apart from the home has not been investigated but they were likely to have been less than £150,000.
The wife had no assets. She had shortly returned from living in America. She was living with her parents and her son. She was working for a cosmetics company in stores in the West End of London. It is not in dispute that when the parties started living together, the wife gave up her work and helped to look after Claudia and Matthew. This was in particular when the husband was running his business from an office. Since 2002 he has worked from home.
In 1996 at a time of prosperity for the husband's business because of Euro 1996, they moved to an address in Totteridge. This was sold in 1997 when the final matrimonial home at 14 Crofters Road, Northwood, was purchased for £287,000. There was a mortgage for £202,000. The property is now worth £725,000.
The parties married in October 1997. They separated after the presentation of the husband's divorce petition in June 2004, the wife returning to live with her parents where she has remained. She has not obtained employment since then.
Income and capital during the marriage
During the marriage the parties were dependent on the husband's earnings. He is a 75% shareholder in Elite, the wife having a 25% interest which it is agreed will be transferred to the husband. Figures for the last 5 years of trading to October 2005 show that in that time turnover has gone down from £805,000 to £339,000 a year. Losses in the first 2 years were £60,000 and £84,000 with salaries reducing from £92,000 to £19,000 a year between the 2 years. There were profits of £17,000 and £16,000 for the years to October 2003 and 2004 but this fell to £300 for the year to October 2005.
The husband says that the profitability of the company, which is dependent on the incoming tourist trade, has been affected by 9/11, foot and mouth outbreak, the London bombings, the extent to which he has had to concentrate on the affairs of his parents, and the time he has had to spend in defending the wife's claim. Assets have declined from £148,000 to £97,000. Some indication of the adverse trading conditions are indicated by a decline in expenditure from £186,000 5 years ago to £55,000 a year now.
One of the areas of dispute is the extent to which the husband was able to supplement his income from undeclared cash transactions. The wife's case is that his expenditure cannot be explained by a declared salary for each year of £25,000 and the absence of any dividend (originally £10,000 a year) for the last 4 years. The husband's response is that he has been using his available assets to meet the shortfall in his income.
The extent of the husband's other assets than those to which I have referred above are not agreed. But I turn firstly to the main area of dispute, the alleged gifts to the husband. I gave a decision during the hearing that the wife had not proved that sums of money used by the husband to purchase property and to repay a loan were gifts. Had she been correct the husband's assets would have increased by some £1.7m.
The purchase of properties in the husband's name
The wife's case is that 5 properties purchased between 1999 and 2005, all of them save the last in the name of the husband's father, are his. Her case originally was that the money to do this all came from the husband's resources. Disclosure has shown that the money in every case came from his parents, Mr Ivan and the late Mrs Barbara Green. It is her case that they amount to a gift to the husband from his parents. The purchase in his name...
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