WM v HM
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 09 May 2017 |
| Neutral Citation | [2017] EWFC 25 |
| Docket Number | Case No: BV15D07863 |
| Court | Family Court |
| Date | 09 May 2017 |
[2017] EWFC 25
IN THE FAMILY COURT
Royal Courts of Justice Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: BV15D07863
Martin Pointer QC, Rebecca Carew PoleandKyra Cornwall (instructed by Boodle Hatfield) for the Applicant
Lewis Marks QC and Katie Cowton (instructed by RadcliffesLeBrasseur) for the Respondent
Hearing dates: 28 February – 3 March 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge directs that this anonymised version of the judgment may be published. No report may identify the parties.
I shall refer in this judgment to the applicant as "the wife" and to the respondent as "the husband".
This was a long marriage and the overall assets are substantial. I find the assets to be worth, net of latent taxes, £182 million. The husband argues that there should be a departure from equality for two reasons. First, he says that in 1986 he brought great value into his newly formed relationship with the wife. Second, he says that since 1986 he has made contributions of such a special nature that they outweigh those made by the wife.
In preparing this judgment I have borne in mind the wise words of Lord Justice Lewison in Fage UK Ltd & Anor v Chobani UK Ltd [2014] EWCA Civ 5 at para 115:
"It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted."
Reference may also be made to Re F (Children) [2016] EWCA Civ 546, paras 22 – 23, which is to the same effect.
Virtually all the facts are agreed and are well known to the parties. It is not necessary to spell them out in detail. I only need to recite the bare minimum by way of background to make this judgment intelligible to the neutral reader.
The husband was born in 1949 and is now aged 68. The wife was born in 1962 and is now aged 54. In 1985 they began their relationship. At that time the wife was a worker on the shop floor of the husband's factory. The husband had been married twice before; the wife once. On 30 April 1986, they commenced cohabitation. They have two children: a son born in 1987 who is now aged 30; and a daughter who was born in 1989 and who is now aged 27. They married on 23 September 1989 shortly after the birth of their daughter. They separated in May 2015 and divorce proceedings then ensued. So, this was a 29-year partnership.
On 24 July 1978, the business which is now X Group plc ("XG") was incorporated and started trading. At first, the business was an equal partnership between the husband and a friend; that friend was bought out in April 1989. No science was brought to bear in the buy-out negotiations. The business manufactures and supplies materials, predominantly, but not exclusively, for installation in ceilings. In 1978 the husband and his friend found a factory in a town in the South of England from where they manufactured the fittings. The business has gone from strength to strength and is now a vitally important source of local employment – there are over 500 employees who depend on the continuance of the business. It is the biggest employer in the town. The shares in XG are held 99% to the husband and 1% to the wife.
With the increasing prosperity of the business the parties' personal fortune has increased substantially. They have been able to buy a number of properties of exceptional quality in London, Hampshire, Somerset, Devon and Austria. They have enjoyed a very high lifestyle. All of this is agreed and does not need to be spelt out further.
The single joint expert, Mr Simpson of Saffery Champness, has valued the business as lying between £185 million and £227.5 million, on the basis that the husband would participate in a reasonable period of hand-over to the purchaser (which the husband in oral evidence accepted he would do). Mr Simpson's methodology was not controversial. Unsurprisingly, Mr Pointer QC argues that the top figure should be taken while Mr Marks QC argues for the bottom figure. Mr Pointer QC made some good points in cross-examination, and in argument, as to why a figure, if not at the very top of the bracket, then certainly in its upper reaches, should be taken. Mr Simpson accepted that the price that would be paid by the notional or hypothetical purchaser would be in the "middle to upper end" of the bracket. Having considered the matter carefully, bearing in mind that a lot of value hangs on my decision, I have concluded that the price that would now be paid by the notional or hypothetical purchaser would be at the 85 th centile of the bracket. I therefore conclude that the round figure to be taken for the present value of the company is £221 million (£221,125,000 to be numerically exact).
As noted above, XG was incorporated on 24 July 1978 and the parties began their relationship on a permanent basis on 30 April 1986. I heard final submissions in the case on 3 March 2017. I have found that the company is now worth £221,125,000. What present value should fairly be attributed to it on 30 April 1986?
I have recently had to consider the same issue in a judgment which has the neutral citation number [2017] EWHC 147 (Fam). I have not given leave for that decision to be reported as the case is incapable of camouflage and were its details to be reported there may be adverse economic consequences. However, a copy of the decision was given to the lawyers on each side in this case on strict terms of confidentiality. Apart from the passages of general application from it which I quote below the terms of confidentiality of that decision are firmly maintained.
In that decision, I stated at [38 – 39]:
"38. I am firmly of the view that the correct approach to give effect to the sharing principle is to try to calculate the scale of the matrimonial property and then normally to share that equally leaving the non-matrimonial property untouched. This is logically pure, morally sound, easy to understand, and limits individual judicial caprice. I recognise that not everyone agrees with this approach. For example, the Hong Kong Court of Appeal in AVT v VNT (CACV 234/2014) at para 69 described it as "not helpful at all" apparently because it encroaches on the exercise of a wide discretion. Even so, I continue to oppose the school of thought that plucks a random percentage out of the air where the pool of assets is a mixture of matrimonial and non-matrimonial property.
39. The (equal) sharing (of matrimonial property) principle is not a Procrustean bed. Cases have shown how it has been modified (some might say manipulated) to achieve an overall intuitively fair result. Thus it has been described as a tool and not a rule. So, by way of example, Mrs Miller did not receive half of the value of Mr Miller's New Star shares, as the House of Lords felt that he had brought into the marriage some intangible unquantifiable knowhow which contributed to the later establishment of the business during the marriage. Similarly, Mrs Robertson did not receive half of the increase in value of Mr Robertson's ASOS shares, Mr Justice Holman considering that the numerically quantified figure for the value of those shares at the start just did not fairly reflect what Mr Robertson really brought into the marriage. Equivalently, Mr Jones succeeded in persuading Lord Justice Wilson to adopt a very creative, arguably artificial, inflation of the actual starting figure for the value of his business in order to shrink the amount of the matrimonial property. But in all of these cases there was fidelity to the basic principle, more or less."
I then in [40] dealt with some factual aspects specific to that case, and continued at [41 – 44]:
"41. I agree with Mr Justice Moylan in SK v WL [2010] EWHC 3768 (Fam) that it is not merely legitimate but is realistic and right to use hindsight when making in family proceedings a historic valuation. Mr Chamberlayne QC rightly says that in any event the pass has been sold in this regard when we uprate a historic figure with passive growth. For passive growth is obviously a post valuation event.
42. It must be remembered that in this respect the court is exercising a pure discretion and whilst the case of Jones v Jones [2011] EWCA Civ 41, [2012] Fam 1 supplies a valuable guideline (that is to say it indicates the direction of travel), it is not supplying a tramline (that is to say a predetermined destination). And, as I have already stated, Jones v Jones is a good exemplar of the exercise of discretion in that the doubling of the initial figure £2 million to £4 million seems to be based more on instinctive feelings of fairness rather than being referable to any particular piece of evidence.
43. I wholly disagree with Mr Pointer QC's submission that Mr Justice Holman incorrectly decided the case of Robertson v Robertson [2016] EWHC 613 (Fam). On the contrary, I regard it as a paradigm example of a wise and careful...
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