Li Quan (Petitioner) v William Stuart Bray and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coleridge,Sir Paul Coleridge,Mr. Justice Coleridge |
| Judgment Date | 27 October 2014 |
| Neutral Citation | [2014] EWHC 3340 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD12D083916 |
| Date | 27 October 2014 |
[2014] EWHC 3340 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Coleridge/ Sir Paul Coleridge
Case No: FD12D083916
Mr. Richard Todd QC and Ms. Lily Mottahedan (instructed by Messrs. Vardags) for the Petitioner
William Stuart Bray appeared in person
Mr. Richard Harrison QC, Mr. David Eaton TurnerandMs. Samantha Ridley (instructed by Lewis Silkin Llp) for Save China's Tigers
Hearing dates: 9–20 December 2013 and 19 June–8 July 2014
This judgment is being handed down in private on 27 October 2014. It consists of 28 pages (plus two annexures of 18 pages) and has been signed and dated by the judge. The judge hereby gives leave for it to be reported from 27 October 2014.
/
Tigers are an endangered species and the Chinese Tiger (panthera tigris amoyensis), in particular, no longer exists in the wild at all. Li Quan (the wife), who was born in China, has, since at least 1999, been passionate about not only saving the Chinese tiger from disappearing from the planet altogether but also breeding them for reintroduction into wild reserves in China. To that end she has invested huge amounts of time and energy and some money.
The wife met Stuart Bray (the husband) in 1990 and he too, over time, became infected with the same passion for the cause of saving the Chinese tiger. And he too has invested even greater sums of money in the venture (loosely and frequently described as the Chinese Tiger Project) and a great deal of his time and energy. The Government of the People's Republic of China are (via their government agencies) completely behind their work and have signed an agreement (The Framework Agreement) in 2002 which forms the basis of the ongoing cooperation between the husband and wife, the fourth Respondent (Save China's Tigers; SCT UK) and China. The other contracting party to the Framework Agreement apart from the Chinese government is a trust established in Mauritius called Chinese Tigers South Africa Trust (CTSAT) which was executed on 18 November 2002, a week before the signing of the Framework Agreement.
The husband and wife lived together from 1997 (they married in 2001). In 2000 the wife established Save China's Tigers in the UK which secured UK Charity Commission registration the following year. Between that time and July 2012 the husband and wife worked tirelessly and more or less cooperatively on this patently bold, imaginative, charitable and laudable venture. The wife's expertise in the field of tiger conservation and her Chinese contacts and cultural background combined with the husband's profound understanding of and experience in complicated international finance and financial structures undoubtedly produced a dynamic partnership. Over time a number of their friends and colleagues became involved and to an extent enthused by and in the project.
Tragically for all involved the personal relationship of the wife and husband deteriorated over time. Part of the problem seems to have been disagreements over the future policy and precise presentation of the project.
In July 2012 the wife was removed as director of SCT UK and on 15 August she filed a divorce petition. At the time of the breakdown of the marriage the wife's governing preoccupation was to ensure the survival of the Chinese tiger project and the preservation for that purpose of the funds and assets which had thus far been provided for that purpose. That was the focus of her concern when she went to her first lawyers in July 2012.
However by the time her claim for financial relief was first listed before me for a First Appointment on 27 November 2012 the suggestion that the funds within the charity might have more than one purpose was beginning to surface.
Her leading counsel on that day said …
"It is an unusual case. I will not pretend it is not. We have all seen, on many occasions, trusts – sometimes in Liechtenstein, sometimes in Jersey, sometimes elsewhere – where the primary, or perhaps the only, beneficiary is ostensibly a charity. The thing that makes this case different is that in this case there is no doubt that funds have been deployed to charitable purposes. It is not as though we can say that this is a pool from which this family has lived with no intention of ultimately benefitting the charity. The question is though, "Is this, as it were, a genuine philanthropic irrevocable disposition by Mr Bray or is there, in fact, a complex web through which he can [and, if he can, we say in due course he will] extract funds back for himself?"
Gradually since that time her case in this respect has solidified so that on 17 July 2013 she filed an application by way of amendment to her Form A seeking a variation of a post nuptial settlement viz "variation of the post nuptial settlement – Chinese Tigers South Africa Trust". The core of her case from that time has been that CTSAT was established not only to advance the cause of the chinese tiger but also to provide financial benefit and support for the husband and wife personally over the long term. That assertion has been hotly disputed by the husband since it first surfaced.
As the character and purpose of CTSAT had thus become the central issue in this most unusual financial relief application, the use of the OS v DS procedure to determine, as a preliminary issue, whether it is a post nuptial settlement (and so capable of variation under the MCA 1973 s24 by this court) and if not the extent to which it is, if at all, a "resource" in the more broad sense (under s25) available to the husband to meet the wife's claim (apart from also paying for its charitable activities) is both an apt process and a priority for determination.
It is especially important because CTSAT has assets which are worth tens of millions of dollars or pounds (the precise figure is far from agreed but on the most optimistic view not more than £25m) but there are now almost no assets, relatively speaking, outside it. Accordingly the determination of this preliminary issue necessarily has a profound impact on the wife's claim.
On 3 rd October 2013 by way of a refining of the OS v DS hearing I made the following order:
"the hearing on 9th December 2013 shall be utilized to enquire into:
(i) The circumstances under which the China Tiger trusts were set up;
(ii) The purpose of those trusts;
(iii) Whether those trusts are nuptial settlements;
(iv) The availability of funds within those trusts to the parties;
(v) Whether the funds within those trusts can only be utilized for tiger conservation"
On the same day a number of other parties were joined to the proceedings including SCT UK and CTSAT. The wife and SCT UK have been represented at this hearing by leading and junior counsel. The husband has not been but he has received assistance both indirectly (and I suspect directly) from both SCT UK's solicitors and counsel. His case is in every important respect identical to that of the UK charity of which he is understandably fiercely protective.
This preliminary hearing which began last December (10 days in all) and continued for a further 14 days from 19 June 2014 has lasted a total 25 days including reading time. There are no less than 33 lever files of statements and documents. At the hearing I heard oral evidence from the wife, the husband and 8 other witnesses including two Mauritian lawyers. The oral evidence has been simultaneously transcribed by "livenote" which has been helpful given the importance of the oral evidence and the gap between the two halves of the hearing.
It goes without saying that I have also been provided with very lengthy opening and closing notes from the represented parties. They are of the highest quality. The husband has also supplied me with more succinct notes. All have been of immense help to me. Furthermore, following the delivery of this judgment in draft in late July, the wife's team served a very lengthy further written argument pursuant to the so-called Barrell jurisdiction. In due course both the husband and SCT UK responded. I will deal with that specific "application" at the conclusion of the judgment.
At the start of the hearing Mr Richard Harrison QC (for SCT UK), complained with some justification that, in the absence of pleadings and given that he had not been a party to the earlier case management directions leading to the hearing, even at that late stage he did not have a clear idea precisely what the wife's case was in support of her assertion that CTSAT (and its related corporate vehicles) was a post nuptial settlement. As I sympathised with his complaint I ordered the wife to set out her case concisely.
This she did and on 12 December a document entitled "W's Case on the CTSAT Nuptial settlement" was lodged and served.
It is convenient to include it in full here:
"1. The Wife asserts that the CTSAT arrangement is a nuptial settlement. It follows that all parts of that Group are within and part of that nuptial settlement.
2. It was always intended by the parties that it should benefit one or both of them. To this end the Trust was created with powers to:
(a) enable the parties to be expressly added as objects of the power (although this has proved to be unnecessary)
(b) Create sub-entities (such as other limited companies) which the parties would then benefit from.
(c) Give a direct benefit to the parties by, for example, paying for services for the parties which were not commercial arm's length transactions.
(d) Be and create other vehicles whereby...
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