Prest v Prest and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Rimer,Lord Justice Patten |
| Judgment Date | 20 April 2012 |
| Neutral Citation | [2012] EWCA Civ 655,[2012] EWCA Civ 325 |
| Docket Number | Case No: B6/2011/3170A + B,Case Nos: B4/2011/3168, B4/2011/3169, B4/2011/3170, B4/2011/3171 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 April 2012 |
[2012] EWCA Civ 325
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE MOYLAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Rimer
and
Lord Justice Patten
Case Nos: B4/2011/3168, B4/2011/3169, B4/2011/3170, B4/2011/3171
Mr Tim Amos QC (instructed by Jeffrey Green Russell) appeared on behalf of the Appellant companies.
Mr Martin Pointer QC and Ms Katharine Davidson QC (instructed by Alexiou Fisher Phillipps) appeared on behalf of the Appellant husband.
Moylan J had the unenviable task of deciding very complex ancillary relief proceedings between Yasmin and Michael Prest. A number of companies were joined as interveners because they all seemed to be trading vehicles operated by the husband. The case would have been difficult enough had there been the cooperation from the parties to which the court was entitled, but that cooperation was sadly lacking not only on the part of the husband but also on the part of the companies. The judge, having heard all oral evidence adduced, delivered a reserved judgment on 4 October, no doubt requiring him to sacrifice many hours of his long vacation. It runs to some 230 paragraphs.
The court reassembled on 16 November, when the judge delivered a short judgment settling the form of order. Both the husband and the companies, dissatisfied with the outcome, applied for permission to appeal, and on 15 December I simply ordered that there should be an oral hearing without notice so that some of the complexity could be explained to us by leading counsel, who had appeared for the husband below, Mr Martin Pointer QC, and also counsel for the companies. Mr Wagstaffe QC, who appeared below and who settled the skeleton argument on behalf of the companies, has today been replaced by Mr Tim Amos QC.
There is a real point of substance which this court must decide, and that is which of the two streams of first instance authority we should validate on the perennial question in ancillary relief proceedings, when and in what circumstances does the judge pierce the corporate veil? So that is the fifth of the seven identified issues in Mr Pointer's skeleton argument, and we give permission for any ground that falls under that head, the veil of incorporation issue.
The husband in the court below ran the argument that Nigerian customary law regulated not only his management and distribution of personal property but also of shares in his main trading company, an argument rejected by Moylan J. Mr Pointer asserts that the judge was dismissive of contemporaneous Nigerian proceedings which considered this same issue, and that since 4 October the Nigerian court has delivered a judgment which confirms the husband's London case that Nigerian customary law extends to the shareholding in the Petrodel Upstream company.
So we give permission for the Nigerian customary law point to be argued, and we give leave to the husband to adduce fresh evidence, namely the relevant Nigerian judgment.
There is a small point, but not insignificant, as to whether the form of order drawn by the judge on 16 November is permissible, given earlier decisions which suggest that it is not open to the court to make at the same time a lump sum order and a transfer of property order, if the sole purpose of the latter order is to ensure the implementation of the first. So permission is given for that issue to be pursued.
I would refuse permission to appeal the judge's finding on the value of Petrodel. That finding depends entirely on his assessment of witnesses who gave oral evidence and on documents that survive from an earlier period. Equally, I would refuse the application for permission to appeal the wife's budget. That is essentially an exercise for the discretionary assessment of the trial judge.
Another argument has been advanced to whether we should grant permission to appeal the judge's conclusion that the husband was the beneficial owner of the former matrimonial home in Warwick Avenue, as the consequence of him having paid the original purchase price with his own money, thereby creating a resulting trust in his favour. The argument has been that this was not a case pleaded in points of claim that had been directed by Baron J, and that it first emerged in the assertion of the wife in her statement of 15 May 2011, some four weeks before trial. There is a veiled submission that the husband was ambushed by this assertion, that the judge should not have invested in it, and that the husband should now be given leave to adduce fresh evidence which he has obtained by researching material contemporaneous to the...
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