Mrs D v Mr D
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 02 March 2015 |
| Neutral Citation | [2015] EWHC 1393 (Fam) |
| Court | Family Division |
| Date | 02 March 2015 |
| Docket Number | Case No: FD12D04430 |
[2015] EWHC 1393 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Roberts
Case No: FD12D04430
Nigel Dyer QC and Juliet Chapman (instructed by Withers LLP) for the Applicant Wife
Robert Peel QC (instructed by Radcliffes Le Brasseur) for the Respondent Husband
Hearing dates: 2–3–15 to 6–3–15
A. Introduction
This is an application for financial remedy orders issued by Mrs D in September 2012. The Respondent is her former husband, Mr D. The final dissolution of their marriage has not yet been confirmed by Decree absolute but it is common ground that their marriage came to an end in 2012 when he moved out of the main family home into a separate cottage within the grounds. I propose to refer to the parties in this judgment as 'husband' (H) and 'wife' (W). I intend no disrespect to either in so doing.
This was a long marriage which endured for the best part of 20 years. The parties married at the beginning of January 1995 having by then lived together for some two years. It was a second marriage for H and a third marriage for W. By then, he had two children from his first marriage, a son and a daughter, who are now respectively 44 and 43 years old. H has dual citizenship. Both are now UK tax resident but non-domiciled. H is now 71 years old and, on his case, nearing the end of his productive working life with retirement beckoning. W is almost 11 years younger. She will celebrate her 60 th birthday in a few days' time.
Three children were born during the course of the marriage. The eldest child is currently studying at university and thereafter will spend a further five years studying post-qualification. The second oldest child is in his final year at school. From September 2015, he hopes to attend university. The youngest child is a pupil at boarding school and is studying for her GCSEs. Her current plan is to read history at Oxford or Cambridge with a view to a law conversion course thereafter. Everything which I have heard and read about these children persuades me that they are bright, intellectually accomplished young people who have a shining future ahead; they are a credit to each of their parents.
W issued her petition seeking dissolution of the marriage on 19 September 2012. Decree nisi was pronounced in January 2013. The financial proceedings were transferred to the High Court to be heard by a Judge of the Family Division by order of District Judge Malik at the First Appointment in January 2013. On 12 March 2014, Parker J dealt with a Financial Dispute Resolution appointment which did not result in settlement. As part of a raft of directions made on that date, she listed the matter for a final hearing with a time estimate of 7 days. For reasons to which I shall come, W was ordered to pay H's costs of that hearing, such order not to be enforced until the conclusion of the proceedings with which I have been dealing. Open offers were exchanged, albeit that W's response to H's proposal took almost 8 months to materialise. Final directions were made by me at a pre-trial review in January this year. Thus it was that on Tuesday of last week, 3 March 2015, I commenced hearing this case.
Mr Nigel Dyer QC and Miss Juliet Chapman appeared for W instructed by Withers LLP. Mr Robert Peel QC appeared for H. His instructions come from Radcliffes Le Brasseur. I should say at the outset that I am grateful to all three counsel in this case for the care which has so obviously been taken in the detailed preparation of their written and oral submissions. They have assisted me enormously in my analysis of the evidence and in the conclusions which I have reached on the basis of that evidence.
Throughout the currency of this litigation, there has been an ongoing dialogue between the parties' respective solicitors in relation to financial disclosure. Both parties made their initial presentations in Forms E in January 2013. Since then, H has responded to three lengthy questionnaires served by W. Her current solicitors, Withers LLP, were instructed at the end of October 2014. They inherited a case where a significant quantity of documents had already been disclosed. From the foot of that disclosure, they compiled W's third questionnaire and, in January this year, took out an application in the Royal Court in Jersey for the production of bank statements relating to various corporate entities owned by a Jersey Trust which H had set up in June 2004, some nine years into the marriage. The detailed open offer which flowed from their recent instruction by W at the end of November last year was stated to be subject to a specific caveat in relation to 'some significant outstanding disclosure issues which need to be resolved before a full and final agreement can be concluded'[ 2/D9].
On 18 February 2015, less than two weeks before the start of this hearing, the parties exchanged section 25 statements in which each set out in some detail their final positions. H complains that this was the first time he had been presented with a clear formulation of W's case in relation to his alleged non-disclosure. Mr Peel has described it on his behalf as a straightforward 'ambush'. Because the exchange of narrative statements was simultaneous rather than sequential, he did not have the opportunity to respond in any detail to that case. However, in the time available, he was able to obtain statements from various third parties whom W alleged were, or might be, involved in holding assets on his behalf or otherwise assisting him to obscure the true state of his finances from the gaze of the court. I gave leave for those statements to be admitted in evidence. Mr Dyer did not wish to cross-examine any of those witnesses save for one, Peter Tanfield, a long standing business associate of H's. He, it appears, was travelling in Africa and was not responding to emails or telephone messages which might have enabled us to set up a video link in order to receive his evidence.
Thus, by the time we reached the final day of evidence, the only witnesses from whom I had heard were W, H and their accountant, Mr Adam Collins. I also had the benefit of reading the contents of three bundles of documents, including the detailed narrative statements relied upon by each of the parties. Within the bundles I had two reports prepared by the single joint expert, Mr Paul Smethurst. He had been instructed by the parties to value the business and trust assets. His figures have been accepted and incorporated into a very helpful schedule of assets which is by and large agreed as a reconciliation of the wealth available to these parties. Excluding the value of some future run-offs from a number of commercial mandates (to which I shall come) and the issue of whether or not H has now revealed the full extent of his assets, there is just over £5.5 million which falls for division in this case.
Aside from some minor issues of computation, there is broad agreement between the parties as to how the assets should be divided in terms of the value to be delivered to each at the end of this marriage. The spectre which hovers still over these proceedings is W's suspicion (if not actual belief) that H has yet to make full and final disclosure of the means at his disposal. These suspicions are based upon a number of unexplained transactions which are underpinned to a significant extent by the opportunities which she says are available to him to disguise transactions or 'park' funds with his business associates. In these circumstances, much of the oral evidence and cross-examination which I heard over a number of days was devoted to H's response to her non-disclosure case. I shall need to make detailed findings about his evidence in due course. As to where it takes the case, Mr Dyer accepts that he cannot point to the existence of any specific funds or assets but invites me to reflect any adverse findings of fact which I might make by awarding W a 75% interest in the net proceeds which will be generated from a forthcoming sale of the former matrimonial home. That additional uplift, over and above her joint legal and beneficial interest in the property, represents a sum of just under £522,000. That figure (or the formulation of the departure from equality which he was seeking on behalf of his client) did not emerge until closing submissions but it is said to represent, on the case advanced by W, a fair reflection of outcome. Whether that figure can properly be said to reflect a 50% share of what is likely to remain hidden is something to which I shall come in due course once I have reviewed the evidence. In his final submissions to me, Mr Dyer quite properly accepted that he was not in a position to quantify the extent of the so-called 'hidden' assets in this case. The uplift of 25% over and above what would otherwise be W's entitlement from the sale of the family home was, in the circumstances, a fair reflection of any conclusion which the court might reach if I were to find that H had lied in his repeated denials that everything was now 'on the table' in terms of his financial disclosure obligations.
In order to set in some context the non-disclosure case advanced by W, I turn now to set out the background to this family's life and the manner in which H and W operated their financial affairs during the course of the marriage.
B. Background
The genesis of the current business structure
Having been born in Eire, H spent his early years growing up in Africa. When he left school, he worked for a short time as a clerk in an accountant's office. He discovered an aptitude for figures and was persuaded to take up articles and further study. He qualified as an accountant at the age of 24, securing the highest mark of any student in the country in...
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