J v J
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 2010 |
| Neutral Citation | [2010] EWHC 2654 (Fam) |
| Docket Number | Case No: FD07DOOO36 |
| Court | Family Division |
| Date | 21 January 2010 |
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Before: MR JUSTICE CHARLES
Case No: FD07DOOO36
Martin Pointer QC and Geoffrey Kingscote (instructed by Mishcon de Reya) for the Applicant
Lucy Stone QC and Marcus Lazarides (instructed by LMP) for the Respondent
Hearing dates: 22 to 26 and 29 and 30 June and 6 to 8 July 2009 Draft judgment circulated 28 October 2009
Charles J:
Opening remarks
I have divided this judgment into Parts:
i) Part 1, opening remarks and introduction (paragraphs 1 to 16).
ii) Part 2, the headline disputes of fact and findings of fact (paragraphs 17 to 285).
iii) Part 3, the law (paragraphs 286 to 423).
iv) Part 4, conclusions (paragraphs 424 to 474).
v) Part 5, general comment for consideration by the profession (paragraphs 475 to 484)
vi) Part 6, chronology.
I apologise to the reader for its length not least because, as will appear in Part 4, I have concluded that the core facts and magnetic factors to be taken into account can be stated reasonably succinctly. The length of this judgment flows from the way in which the factual disputes were prepared and presented and the general points that I have decided to make in that context (Part 2). But also, as appears from Part 3, the case has raised points of principle that are not directly covered by existing authority.
For convenience I shall refer to the parties as the wife and the husband.
This has been a hard fought claim for ancillary relief in which there was a number of disputes of fact advanced that raised credibility issues. The procedure adopted in respect of such issues, and the general preparation of the case, followed the rules and a fairly standard path in proceedings of this type.
It follows that the comments and criticisms I make of the product of that path are criticisms of the path, and thus an approach to the preparation and presentation of “big money” cases that is generally adopted, rather than to the individuals involved in this case, who it seems to me have adopted an approach that accords with that adopted by many others who specialise in this field of litigation. This is not surprising because the solicitors and counsel involved are experienced and respected practitioners in the field.
In my view, the product of this fairly standard path was that a number of the factual stepping stones or building blocks in the rival arguments were not constructively or adequately addressed. So, in my view, this case provides an example of endemic failures of the approach generally adopted in respect of the trial of “big money” cases to properly identify issues, and the evidence required in respect of them. I make some general closing remarks at the end of this judgment for consideration by the profession (Part 5).
Introduction
The parties were married in June 1996 shortly after they had met for the first time. For both of them it was their second marriage. At the date of the marriage the husband was 44 and the wife almost 30. The marriage finally broke down and the parties separated at the end of January 200So they were together as a married couple for 9 and a half years.
The husband has two adult children from his first marriage. The wife has a daughter from her first marriage. She was born in 1994, and is now 15. At the time of the marriage she was 2 years old.
There are cross applications for ancillary relief. In his affidavit of 11 October 2007 the husband asserted that both claims should be dismissed. The wife pursues her claim (which was issued later) and seeks a substantial award. She has therefore been treated as the Applicant and the husband has made her an open offer. So his stance is no longer, and for some time has not been, that both claims should be dismissed.
Chronology
I refer the reader to the chronology in Part 6. In the main it reflects common ground between the parties. But, where it does not do so, it reflects my findings or, as appears therefrom, assertions made by the parties. It also provides a framework for the consideration of the issues and assertions referred to in it.
The date fixed for the hearing, with a 10 day estimate, was 16 March 2009. The respective open positions of the parties (then and now) are dated 3 March 2009 (wife) and 10 March 2009 (husband). They are a long way apart. The wife's open position is that she seeks a lump sum which will result in a division of the total assets as to 60% to the husband and 40% to the wife on the basis of a clean break and that costs be dealt with by the court. The lump sum (subject to refinement by reference to updating disclosure and add backs) was estimated at £10 million. The husband's open position was that he would pay the wife £2,896,448 representing one half of the net increase in the value of his company between the date of the marriage and the date of separation, less the amount paid to the wife on account of her lump sum, and that there be no order as to costs. The offer was based on Mr A's valuations.
When the case came on for hearing in March 2009 (with its 10 day estimate) I gave the parties the opportunity to demonstrate to me that the case was ready for trial. Having heard them I gave an ex tempore judgment to the effect that in my view the case was not then ready for trial on a central dispute of fact, namely that the wife had undisclosed substantial assets or ready access to such assets. I therefore adjourned the trial on 17 March 2009. It was, and remains, my view that there had been significant failures to take proper steps to prepare the case. Fortunately a date in June 2009 was found for the trial. I rejected what to my mind was an inappropriate approach by both counsel that the case should be re-fixed for their convenience.
I ordered further disclosure in respect of that central dispute. It seemed (and still seems) to me that this disclosure was an obvious and vital element of any properly prepared and argued determination of that issue and I therefore fail to understand how the parties had not made provision for it prior to the first hearing. The point that the District Judge had limited disclosure of such material to dates after the breakdown of the marriage does not prevent the parties recognising that the issues raised in this case merit wider disclosure and it being provided by agreement, or further order. The terms of my order were agreed between the parties who took the opportunity to include provisions for disclosure in addition to the disclosure triggered by my decision.
In an attempt to focus the minds of the parties on basic aspects of the preparation of a case for trial, namely the identification of (a) the issues, (b) the facts that were agreed and (c) the facts that were in dispute, and thus the evidence that was needed to prove them, I also gave directions that:
“———each party do file and serve a statement setting out:
a the findings of fact that the party will ask the court to make;
b the facts upon which those findings should be made;
c other areas that will be the subject of examination in evidence”
I acknowledge that this could have been better drafted but, as explained in court, my purpose in making this direction was to provide a procedure through which the parties identified the findings that each of them was inviting me to take into account as factors in the s. 25 exercise and the subsidiary facts (stepping stones or building blocks) they were inviting me to find to establish those findings.
This is an essential part of the preparation and presentation of any case because it identifies the issues (of fact and law), and the evidence (oral and documentary) that needs to be given and tested.
The compliance with this direction, and thereby or otherwise, the fulfilment of its underlying purpose fell short of what I had intended and hoped for. To my mind, the results of this included the following:
i) considerable periods of time were wasted in cross examination by both sides,
ii) during the evidence and submissions it was difficult to follow the need for, and purpose of, some of the lines of questioning, by reference to what was in dispute, or likely to be in dispute, in connection with its subject matter. In particular this was the case in respect of the development of the husband's business and the reasons for the growth in its profitability and its increase in value post separation,
iii) a failure by the husband to put fully and properly to the wife his alternative assertions as to the source of the substantial payments made and applied in the purchase of her houses. For example, his case (and thus its stepping stones or building blocks) that notwithstanding her father's will the payments came from funds to which she was entitled, was not put to the wife with any clarity,
iv) the wife was not challenged by reference to underlying background documents, or some other material apart from bare allegation by the husband, on selected and identified examples of expenditure by her on items that the husband asserted he did not fund to found submissions that her assertions as to the amount of such expenditure were low and that the true full cost was funded by her from her own resources, or resources to which she had ready access,
v) the experts were not given any updating information and had not been asked to comment on points that were put to them in the witness box concerning their valuations, and
vi) important information was sought and obtained very late in the day.
It was also correctly common ground that the affidavit evidence contained a number of passages (which in some cases were quite lengthy) that were simply irrelevant.
The headline disputes of fact and findings of fact
(1) The wife's wealth or access to wealth
The husband maintained that...
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