Mubarak v Mubarik (Variation of settlement)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLMAN |
| Judgment Date | 12 January 2007 |
| Neutral Citation | [2007] EWHC 220 (Fam) |
| Docket Number | Case No: FD98D05332 |
| Court | Family Division |
| Date | 12 January 2007 |
[2007] EWHC 220 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holman
Case No: FD98D05332
Miss Laura Harris appeared on behalf of the petitioner/wife
Mr Charles Howard QC and Mr Richard Harrison appeared on behalf of the first respondent/husband
The second respondents, Craven Trust Company, were not present or represented
The third respondents, Salem Mubarak and Noor Mubarak, appeared in person
Mr David Williams appeared on behalf of the fourth and fifth respondent, instructed by their litigation friend
Hearing dates; 5 th, 6 th, 7 th, 8 th, 11 th, 12 th, 14 th & 15 th December 2006 and 12 th January 2007
APPROVED JUDGMENT
I have been very grateful to all the advocates, not forgetting Mr Richard Harrison, and to their instructing solicitors for their help during a very well argued and very hard fought hearing. I also thank the adult children, Mr Salem Mubarak and Miss Noor Mubarak, who have appeared in person and attended during parts of the hearing (and who are both present as I speak today), for their courtesy and intelligent clarity. I temper my thanks to the advocates with the qualification that although there is much detail in this case, I do feel that at times there has been over concentration on detail and reliance on make-weight points. There is a real risk in this case of losing sight of the woods for the trees.
This case has now become very well known and continuous litigation of great intensity now spans over seven years. It has been before at least thirty different judges in England. There are, in the present bundle, no less than twenty transcribed judgments (and there have been others). Five of those judgments are now reported, or about to be reported, in law reports.
To date, the husband has incurred costs and disbursements (including VAT) of £2,030,000. Some of those costs relate to issues concerning the children. Of that total, £1,580,000 has been incurred since the conclusion of the main hearing of ancillary relief in December 1999; and of that £1,580,000 he has paid £1,355,000 and owes £225,000.
The wife has incurred total costs, in England, of £1,968,000. In her case, the amount that has been incurred since the conclusion of the final hearing is less clear since I do not know what portion of the costs of Sears Tooth, who acted around that time, precedes, and what portion follows the final hearing. But at least£1,250,000 is since the final hearing.
In her case, the amount already paid and the amount still owed is also shrouded in confusion. She apparently owed altogether about £777,970 to her first three solicitors. They collectively obtained and sold her jewellery and the proceeds were credited to the costs, but no-one now present before me seems to know how much those proceeds were and what she may still owe those firms. What is certain is that she owes her present solicitors, Messrs Dean and Dean, over one million pounds, having so far paid them precisely £14,960.
I record the deeply regrettable fact that this morning I have been told that the patience, or ability, of Dean and Dean to further extend credit to Mrs Mubarak is now exhausted and that, at the conclusion of this hearing today, they must, and will, withdraw from the case. I have the utmost sympathy with and understanding of their position It illustrates the terrible consequence of the war that has taken place in this case.
In addition to these sums, the wife has also incurred a further £19,260 litigating in Bermuda, in her attempts to enforce the order there. So a grand total of the costs incurred by the wife is at least £1,987,000.
In the case of both the husband and the wife, the figures were based on an estimate of five days in court for the present hearing. It has actually taken nine days (including today) so the final bills will already actually be higher.
There is an estimated net balance of costs owed by the husband to the wife of the order of £1,500,000 (subject to detailed assessment). That figure, of course, does not take account of any costs orders I may make at the conclusion of this hearing.
Now, the four children of the family are parties and the estimated costs of the younger, minor, children are already £30,750, if assessed at public funding rates; or £54,380, if assessed on a privately funded basis, following any order for costs made against the other parties. At the moment, the costs of the minor children are funded by the English tax payer. That is exquisitely ironical since the parties, although resident here for tax purposes and liable to English taxation, manage to avoid paying any tax at all; a matter which the husband told me about with an evident sense of satisfaction.
A current total for all the costs of the husband and the wife and the children is thus, now, at or close to £4,100,000. Other entities, including the family trust and some of the companies owned by it, have also participated from time to time in the struggle and have incurred costs, but I do not know how much. I have not counted the total amount of court time, or days in court which this case has now occupied. But it must be very great and it is disproportionate to the importance of any one family and is unfair to other, often more needy, court users, such as families whose children (unlike these) have been removed from them.
In October 2004, in the Court of Appeal, Lord Justice Thorpe said, now at bundle C page 185:—
"It is in reality a very simple case in which the wife has first established her right to financial independence, and second, established the quantification of that right in a sum approaching five million pounds. That is the reality. It is a reality which has manifestly not been accepted by the respondent, and it is manifest that he has been prepared to go to any lengths since in order to avoid the reality."
Lord Justice Thorpe described the, then, overall costs bill (then 2.25 million pounds, now nearly double that amount) as "a perfectly shocking figure"; and said, at bundle C, page 186, that the parties had engaged on litigation which he could "only characterise as insane".
I do not believe that "the reality" to which Lord Justice Thorpe referred is any different now from then. I believe that the ruthless determination of the husband "to go to any lengths to avoid the reality" has persisted. And if the words "perfectly shocking" and "insane" were appropriate and justifiable in October 2004, I can only wonder at the appropriate description, two years, a further£1,850,000 and a large number of court days later. All these considerations may have relevance when, and if, I have to exercise discretions, but I stress that they do not in any way impact upon, or affect my consideration of the several points of law which I have to determine.
The background facts
I will summarise the essential factual background as briefly as I can. Fuller details may be found in earlier judgments, and in particular, that of Mr Justice Bodey in December 1999. Although there was a decree absolute as long ago as 10 December 1999, I will, for convenience, call Mr Iqbal Mubarik "the husband", and Mrs Aaliya Mubarak "the wife". They were both brought up in prosperous families in the Kashmir area of India, and each remains a citizen of India and India alone. The husband was born in November 1958 and is now aged 48. The wife was born in December 1959 and is now aged 47. They first met in 1977 and theirs was a love affair and their marriage one of their own choosing. Not only was it not arranged by their parents, but the wife's family, at least, strongly disapproved of it. The husband's own father was a successful jeweller and the husband followed in the same business or trade. In 1980 he moved to Kuwait and set up a jewellery business there. They married in August 1983. He was 24, she was 23. She moved to live with him in Kuwait. Their eldest child, Salem was born in July 1984. He is now 22. In 1986 the husband set up a further business manufacturing and trading in jewellery in Hong Kong, and the young family moved to live there for the next eleven years. In 1988 a company owned by the husband, Checkers Ltd, bought a house in Hong Kong which became the matrimonial home. Noor was born in July 1988 and is now 18 and thus adult. Osman was born on 19 October 1991 and is now aged 15. The business continued to expand. In 1993 the husband formed another company which opened a shop in Paris; and in September 1993 he decided also to trade from a shop in London. He incorporated a British company, Dianoor Jewels Ltd, which acquired the lease of premises in New Bond Street. Thereafter, the husband (necessarily and quite appropriately) spent a considerable amount of time staying in London and attending to his new business here. The wife and children remained in Hong Kong. In March 1994 the husband incorporated a holding company, 21 st Century Holdings Ltd, in Bermuda. This came to, and still does, own all the shares in the relevant subsidiary companies of the business. There is one exception, of relevance to some of the discretionary issues I may have to decide, that a business partner owns 35% of the shares in the Paris company. The initial shareholders in 21 st Century Holdings were the husband as to about 98% and the wife the remaining about 2%.
The wife says that there was some deterioration in the marriage from as early as late 1994. The husband disagrees, but after hearing oral evidence from each of them on this topic I see no reason...
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