Pauline Siew Phin Chai v Tan Sri Dr. Khoo Kay Peng and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Bodey |
| Judgment Date | 06 April 2017 |
| Neutral Citation | [2017] EWHC 792 (Fam) |
| Docket Number | Case No: FD13D 00747 |
| Court | Family Division |
| Date | 06 April 2017 |
[2017] EWHC 792 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Bodey
Case No: FD13D 00747
Mr. Richard Todd QC and Mr. Nicholas Yates (instructed by Vardags) for the Applicant
Mr. Christopher Wagstaffe QC and Miss Amber Sheridan (instructed by Shakespeare Martineau LLP) for the 1 st Respondent, Tan Sri Dr. Khoo Kay Peng
Mr. Yash Bheeroo (instructed by Ariff Rozhan & Co.) for the 2 nd, 3rd and 4 th Respondents
APPROVED JUDGMENT
INTRODUCTORY
[ This version of the Judgment has been slightly redacted following submissions from Counsel for the Respondent husband].
This titanic litigation at last comes on for final hearing: Pauline Chai's application for financial remedies against her former husband Dr. Khoo Kay Peng. For convenience, I will refer to them in this judgment as "the wife" and "the husband". At hearings in March and May of 2014, Holman J 'implored' the parties to negotiate, saying "… it should be so easy to settle this case". Six months later at the end of judgments on estoppel by foreign judgment, jurisdiction and forum conveniens, I said: "… The combined costs [in this jurisdiction] alone are already about £2.7 million and I urge the parties with all the strength I can muster ….. to redouble their efforts to reach a financial accommodation. Whatever the precise extent of the husband's wealth, there is enough in the kitty for it to be said with confidence that they would be hard pushed to spend it all in their lifetimes, even if they wanted to." I repeated the same sentiment at the end of one of several maintenance pending suit ("MPS") and legal services provision order ("LSPO") hearings in November 2016, when I said: "… There should be a settlement figure now which both parties could live with" and I urged them again to find a compromise solution.
Those words have fallen on stony ground. The husband's formal open offer dated 15 th November 2016 was of £15,000,000 as being a fair settlement on a 'needs' basis. The wife's counter-offer by letter of 29 th November 2016 was that she would accept £520,000,000 as being 50% of an estimated kitty of £1,040,000,000. It is fair to say that that aspirational estimation of the kitty by the wife was based on allegations by her in respect of the many and complex ways in which she believes the husband has 'warehoused' assets and failed to disclose the bulk of his wealth. However, in the interests of retaining this hearing and achieving a decision, she has accepted that she will not pursue the bulk of those allegations. Be that as it may, the chasm between the open offers of November 2016 reflects the polarised positions which the parties have taken up throughout these proceedings, not only in terms of their respective offers but also in respect of virtually every issue which has arisen: as to estoppel by foreign judgment; jurisdiction; forum conveniens; MPS; LSPO for the wife; the choice and instruction of experts; 'freezing' arrangements; enforcement; whether the husband should be debarred on the 'Hadkinson' basis, and so on. So this wasteful and extravagant litigation has continued over the last four years.
A quick run-down the agreed chronology, which itself runs to 45 pages, shows about 35 orders in this jurisdiction, in addition to which there have been numerous orders in Malaysia, where parallel proceedings have been taking place with similar energy and determination. Each party accuses the other of bad faith, dishonesty and tactical manoeuvring. The husband says that the wife has been over-zealous and greedy in her litigation approach, making wild assertions. The wife says that the husband has been obstructive and has failed to give full discovery, thus justifying her wide-angled and combative approach. Both sides have failed to comply with court orders when it has suited them, whilst expressing righteous indignation when the other party has done likewise.
With such a mutually combative and litigious approach costs have accrued accordingly. Although I have capped costs where possible, the court is not able to control how much parties choose to pay their lawyers. The wife's costs of the financial remedy proceedings are £3.78m including VAT and the husband's nearly £2.4m excluding VAT (which, not being resident here, he does not have to pay): total £6.18m. Adding to that the parties' combined costs of the jurisdiction and forum proceedings (below) of £2.72m, the total costs bill is £8.9m, excluding the costs incurred in Malaysia. It is as well for both parties that, save for any problems of enforcement, finality can at last be achieved at this hearing.
The parties have been represented before me as follows: the wife by Mr. Todd QC and Mr. Yates; the husband by Mr. Wagstaffe QC and Miss Sheridan. Three companies which are parties (being companies indirectly owned by the husband) have been represented by Mr. Bheeroo. They have all put in helpful skeleton arguments and schedules, which they have supplemented in oral submissions. They have done their best to keep the temperature down in a case of great underlying acrimony and conflict. Both cross-examinations by leading counsel were skilfully performed and neither of them could have been more persuasive in advancing their respective clients' wholly polarised cases. I have read a vast amount of information contained in four core bundles and now four Lever Arch files of 'LiveNote' transcripts. In addition, there are, I think, six Lever Arch files of appendices to the reports of Andrew Caldwell, the single joint expert ("SJE") instructed to value the husband's commercial and business 'empire'. There are about 64 'library bundles' from which documents have been elevated into 'elevation bundles' as the case has proceeded. I have been blessed with three Lever Arch files of authorities. I have taken oral evidence from the wife; from the parties' adult daughter D (called by the wife); from the husband and from Mr. Caldwell.
I have already mentioned one respect in which the case had outgrown its time allocation for this hearing, namely, as regards the wife's wish to pursue multiple complex and interwoven allegations over many years about the husband's business affairs. But there are other respects too in which the hearing has had to be truncated, in the interests of being able to achieve the finality which both parties strongly want. It was therefore agreed between counsel that their estimated times for cross-examination, submissions and so on would be strictly adhered to and enforced and that many points would therefore have to be left unpursued. I warned at the beginning of the case (Transcript pages 35 to the top of page 38 and again at pages 347 and 348) that there would be an inevitable downside, in that the outcome might have to be rougher and readier and, in some respects, rather more summary than if enough time had been set up for the case, which I said was measurable in my view in many weeks. Both sides accepted that situation, which has indeed pertained.
A further consequence of the tsunami of information before me, coupled with the highly adversarial positions which the parties have adopted, is that it has become difficult to see the wood for the trees. I am conscious of having been drawn into disputes and areas where, if the parties' approaches had been less tendentious, I would not have needed nor wanted to go. To try to keep reasonably focused, I need to be selective about the points which I deal with. I have, however, read and re-read everything (sometimes several times), including the extensive skeleton arguments. I have all the contentious points well in mind and, even if I do not mention them, they have helped me form my thinking.
BACKGROUND
As I have said, there is before me a helpful and thorough agreed chronology, which I adopt. I will just highlight some key dates. Wherever I give references consisting just of numbers in brackets, they refer to the pages of the daily Livenote transcripts of the hearing.
The husband is aged 78, having been born in 1938 and the wife is 70, having been born in 1946. They are both by origin Malaysian and the husband remains of Malaysian domicile and citizenship. The wife now has Australian and Canadian citizenship. They were married in 1970 in Malaysia. At that time the wife moved into the husband's property at 10 Ukay Heights, Ampang, Selangor, Malaysia, which he had bought before the marriage. They lived there together for the next 10 years, during which time their elder two sons, A and B, were born. They are now in their mid-40s.
In 1980, the parties decided for various reasons that the wife would move with A and B, then children under 10, to Australia. She did so whilst the husband continued to live and work in Malaysia, having at about that time been appointed Managing Director and Chief Executive of Malayan United Industries Berhad ("MUI"), of which he is now Chairman and Chief Executive. It has become an international conglomerate, listed on the Malaysian Bursa.
The parties' three younger children, daughters C and D and a son E (all now in their 30s) were born when the wife was living in Australia and the wife brought them up there with visits from time to time by or to see the husband, when the family was reunited for a while.
In 1989, the parties took the decision that the wife and now five children would move to Canada. By this time the youngest two children were aged 6 and 3...
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