Stodgell v Stodgell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice Lloyd,Lord Justice Thorpe |
| Judgment Date | 12 February 2009 |
| Neutral Citation | [2009] EWCA Civ 243 |
| Docket Number | Case No: B4/2008/2159 (B4/2008/2159) (B4/2008/1506) |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 2009 |
[2009] EWCA Civ 243
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT AND FAMILY DIVISION
MR JUSTICE HOLMAN
MR JUSTICE CHARLES
Before: Lord Justice Thorpe
Lord Justice Lloyd
and
Lord Justice Hughes
Case No: B4/2008/2159
B4/2008/1506
(B4/2008/2159)
(B4/2008/1506)
Mr C Haines (instructed By Messrs Hartnell Chanot & Partners) Appeared On Behalf Of The Appellant.
Ms K Musgrant And Ms S Cassidy (instructed By The Revenue And Customs Prosecution Office) Appeared On Behalf Of The Respondent.
Lord Justice Hughes:
There were listed before us two related applications for leave to appeal. They arose in the context of matrimonial claims for ancillary relief against a husband and father who had been convicted and made the subject of a confiscation order. The principal application before us is the wife's. She seeks to challenge the decision of Holman J that her application for ancillary relief cannot proceed until the confiscation order has been discharged, at which point it would be possible to see whether there are any other assets which she can attack. In the months before Holman J's decision a number of orders had been made by different judges permitting the drawing of money from funds of the husband which had been frozen under a restraint order. As I at least understand it, most of those had been made without objection by the Revenue. Resistance was lodged, however, to the last in that series of orders made by Charles J on 6 June 2008, and an application for permission to appeal his order is listed also before us. However, we have determined to deal first with the substantive application of the wife.
The husband and wife began to live together in either 1993 or 1994 and married in 1997. The family consisted in addition to the spouses of a son of the wife by an earlier relationship, F, who is now either 20 or 21, and the parties' joint son, R, born on 27 August 1997 and now 11. The marriage broke down in about 2003 although both spouses remained initially in the former matrimonial home in Torquay. The wife petitioned for divorce in May 2004. The decree nisi was pronounced in July 2004. She left the house under order in May 2005.
The husband traded throughout the marriage as an art dealer. He had been fraudulently evading income tax for several years. The Revenue investigation went back to 1988. He was given the opportunity to remedy his situation by making a certificate of full disclosure and if that declaration had been honest he might well have escaped prosecution. However, it was not. He was charged in 2006 with criminal offences of cheating the Revenue and making false statements. The restraint order which I have mentioned was made at or about that time. He eventually pleaded guilty on 18 June 2007 to seven counts of cheating the Revenue and two of making false declarations, and he was sentenced in September 2007 to three years' imprisonment. Subsequently on 20 November 2007 the Crown Court made a confiscation order in the sum of £900,453 and some pence, with 12 months to pay and a term of three years' imprisonment set in default. There had been in the meantime a receivership order in relation to his assets.
That confiscation order was founded upon a determination of benefit in that sum, £900,000 odd. That was made up of unpaid tax of £531,000 odd together with interest and penalties totalling £368,000 odd. At that time it appeared that the husband's assets were not less than the £900,000 of benefit, so this was not a confiscation order limited, as often they are, to a sum less than the benefit and confined by the recoverable assets. That confiscation order is not and never has been appealed. Different statutory confiscation regimes have been in existence from time to time. The present order was made under the provisions of the Criminal Justice Act 1988.
The valuation of the husband's assets was historically complex. There was a dispute between him and one Sheikh Jafali over the beneficial ownership of £250,000 in a bank. There were disputed valuations of various pieces of artwork. Further, the wife asserts that the husband had hidden assets. In the Crown Court, the Crown at that stage asserted hidden assets of about £74,000. But if any such existed they were irrelevant to the confiscation proceedings in the Crown Court, because identifiable assets at that stage appeared to exceed the benefit of £900,000. Accordingly there was no question for any determination to be made in the Crown Court in relation to hidden assets.
By the time of the hearing before Holman J, the Sheikh's claim to beneficial ownership of the bank deposit of £250,000 had been upheld in the High Court. After a careful analysis of the evidence and the hearing, which had taken in all five days, Holman J assessed the husband's assets in the sum of £883,000. There is no possibility of challenge to that finding, although, as events have turned out, it is common ground before us that the assets are in fact not quite as large as that and probably nearer to something like £750,000.
Nothing has yet been paid under the confiscation order and that means that the available assets are insufficient to meet it. The wife does not assert any proprietary interest in either the former matrimonial home or any other of the husband's assets. Her application is for ancillary relief pursuant to sections 21 to 25 of the Matrimonial Causes Act 1973. Thus, it is an application for a discretionary order requiring the husband to make financial provision for her. For present purposes what is really in issue is a claim to a lump sum. As a matter of history, at the time of the judgment of Holman J the wife was contending that she should have the care of the younger son, R, and that her housing needs were the greater for that reason. As it has turned out a residence order has been made to the husband, but for the purposes of his judgment Holman J approached the...
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