Nichola Anne Joy v Clive Douglas Christopher Joy-Morancho and Others (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Sir Peter Singer |
| Judgment Date | 15 April 2014 |
| Neutral Citation | [2014] EWHC 3769 (Fam) |
| Date | 15 April 2014 |
| Court | Family Division |
| Docket Number | Case No: FD11D03744 |
[2014] EWHC 3769 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Peter Singer
Case No: FD11D03744
and
Mr Stewart Leech QC and Mr Morgan Sirikanda (instructed by Sears Tooth Solicitors) for the Petitioner Wife
Mr Martin Pointer QC and Mr Nicholas Wilkinson (instructed by DWFM Beckman) for the First Respondent Husband
Mr Ben Patten QC (instructed on behalf of DWFM Beckman) for the Second Respondent
Hearing dates: 25 to 27 and 31 March and 15 April 2014
This judgment relates to the interlocutory applications in this case, following on from the judgment I handed down on 5 March 2014. The issues upon which the parties concentrated were H's application to vary the maintenance pending suit and legal services orders and to remit the arrears which have accrued thereunder; and the application envisaged in my last judgment and by the order which flowed from it, by W to set aside H's disposition by way of charge of the Bentley motorcar to his solicitors DWFM Beckman ('Beckmans') to secure his costs liabilities outstanding and forthcoming to that firm.
At the commencement of the hearing on Tuesday 25 March and without opposition I joined Beckmans as a party, and from the next morning they were represented in court by Mr Patten QC. W was represented as before by Mr Leech QC and Mr Sirikanda. Mr Pointer QC and Mr Wilkinson acted for H. Over 3 days, after opening submissions I heard evidence from H, and from Ms Moussaoui ('SDM') who, although initially consulted in about May 2013, has throughout been the partner at Beckmans acting for H in these financial remedy proceedings since that firm came on the record on 17 July 2013. On Monday 31 March I heard a full day of submissions.
This judgment is prepared under considerable pressure, having regard to the fact that the FDR hearing is listed for next Monday 7 April. I have given much consideration to what orders I can conscientiously make and what conclusions it would be safe and fair for me to reach at this still interlocutory stage of these proceedings. I have reached a clear conclusion in my mind as to the outcome and believe that it can be relatively briefly stated. It follows that there is a very considerable amount of detail which was considered in depth in the course of submissions upon which I will not at this stage comment except in the most general terms. It is impracticable for the parties to reassemble in advance of the 7 April hearing to consider the consequences of this decision and where it leaves them, and so this case will continue to be in a state of considerable flux for some weeks yet, at best. For due to follow on 15 and 16 April there is listed before me a fixture when the intended agenda items for consideration (assuming that the FDR is unsuccessful) are whether and what maintenance pending suit and legal services orders should be made in favour of W for the period until the conclusion of the final hearing, set down for 10 days from 27 October 2014. Other issues may vie for inclusion on those 2 days: but thus, it seems, in this case has it ever been.
Matters which have arisen since 5 March 2014
On 7 March 2014 H instituted appellate procedures challenging both the jurisdiction and the exercise of my discretion which had led to the order for delivery up of the Bentley to W's agents in France and for its removal to a place in this country where it might be held securely pending determination of the question of its sale. On 11 March 2014 Patten LJ on an ex parte stay application adjourned H's application for permission to appeal to an oral hearing (with appeal to follow if granted), and meanwhile stayed the order for delivery up of the vehicle. This hearing, it now appears, would be unlikely to take place before May.
The Swiss proceedings at the instance of RFG have resulted in a letter dated 19 March to H's Swiss lawyer suggesting he agree to arbitration of the claim in Zürich.
On the evening of Friday 21 March H was served at his home in France with orders made by the court in Aix and a saisie conservatoire was imposed on the Bentley, his Piper aeroplane, and H's shares in the SCI which owns the château. SDM has taken advice on behalf of Beckmans from lawyers in France as a result of which she expresses herself to be confident that the firm's charge will take precedence over RFG's claim. She expressed no view as to a timetable for putting that to the test. H for his part metaphorically shrugged his shoulders and said that challenging the saisie was a matter for Beckmans rather than for him.
Last Friday morning, 28 March, at an inter partes hearing convened at the request of W's advisers Patten LJ 1 removed the stay he had imposed on the implementation of the order for delivery up, but directed that that should not take place until seven days after the French court lifts the saisie, if such be its decision.
It is common ground for the purposes of this application (notwithstanding a modest dispute in relation to one payment not agreed to have been made) that as at 2 April 2014 the arrears under the maintenance pending suit order amount to €76,900, and under the legal services order to £90,000. No payments have in fact been made since the beginning of August 2013 over and above the discharge of W's rent and the €3600 per month child maintenance ordered by the French court.
On 5 March Mr Leech told me that W's indebtedness to Sears Tooth stood at £80,000. By 10 April they were in excess of £150,000. The fees outstanding to Beckmans, £103,000 in mid-December, will by now amount to a very significantly larger sum.
A document which has emerged since the 5 March 2014 judgment
On 21 March W's solicitors sent to Beckmans a copy they had discovered via an internet search of a judgment of Bannister J in the Commercial Division of the Eastern Caribbean Supreme Court handed down on 8 November 2013 after, it would seem, an earlier hearing on 16 October. The application, ex parte by RFG in the matter of the New Huerto Trust, was for the court to sanction a proposed variation of the identity of the beneficiaries and of the terms of the settlement to exclude H and to make consequential variations. In a full judgment Bannister J gave his reasons for declining to sanction the exercise of the deed in the terms, or substantially in the terms of the draft. But his judgment concluded with these sentences: "If the Trustee considers that the reasoning in this judgment is fallacious, there is nothing to prevent it from executing a deed in the form of the draft and arguing for its effectiveness as against any party concerned to attack it. If it succeeds, no harm will have been done by this Court's refusal of sanction."
In fact the deed whereby H was excluded permanently as a beneficiary of the Trust is in the same terms as that disapproved by the BVI court. The notes of the 3 December meeting prepared by RFG and disclosed in these proceedings are heavily redacted to exclude a page and a half of what are said to be excerpts read at that meeting to H and SDM from "a written advice" from the context presumably from leading Chancery Counsel consulted by the Trustees who had (according to the notes and thus presumably according to what was read out) advised that the Trustees could indeed exercise the relevant powers of appointment to exclude H.
In their evidence both H and SDM denied all knowledge of those proceedings and that judgment of which they said they first heard via that letter from Sears Tooth. Were they therefore both subjected to what would be tantamount to a deception practised by RFG (Mr Bennett presiding) in disclosing to them advice which would be inconsistent with the judicial decision reached in the court of the Trust's governing jurisdiction? There could, I suppose, be a possibility that RFG had obtained since the 8 November judgment the opinion of such a silk disagreeing with Bannister J's decision. Or is there in fact some underlying and secret arrangement whereby in due course H might, for instance, rely upon the Bannister J judgment to challenge in that same court and thereby have his exclusion declared invalid, and be restored as a discretionary beneficiary to this Trust? Or might the Protector, Mr Smith, be in a position some day to replace RFG as Trustees by some more benevolent towards H, if in fact RFG are as determined as they present themselves to be in pursuing him for over US $7 million?
I should make it plain at once that no one suggests that SDM is or would be a party to what would amount to a conspiracy to deceive this court as to the true position so as to do down W. But the reason I raise such speculations at this stage is to explain why I am at this stage unable to answer definitively if at all what possibly may be the critical question at the final hearing, namely whether H's exile from and pursuit by the Trust and the Trustees is real, or reversible and intended one day to be reversed. What I can do at this stage is to say that I am certainly not prepared, for my part, to exclude an ultimate finding that this has been and remains a carefully orchestrated put-up job performed by RFG with H's foreknowledge and consent, or at least his maybe relatively passive acquiescence.
Some observations on H's evidence
The elements of H's evidence and of the way in which he has deployed his case, from first to last (within which I include the ill-fated domicile débâcle), have not thus far helped him to begin to persuade me that he is not driven by hostility towards W and does not harbour amongst his motives a desire to vanquish her financially. Nor am I yet prepared to conclude that many of the...
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Nichola Anne Joy v Clive Douglas Christopher Joy-morancho (First Respondent) Nautilus Fiduciary (Asia) Ltd (the trustee of The New Huertotrust) (Third Respondent) LCAL Anthology Inc. (Fourth Respondent)
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