Worlock v Worlock
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE STUART-SMITH,LORD JUSTICE MANN |
| Judgment Date | 29 January 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0129-1 |
| Docket Number | 91/0033 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 1991 |
[1991] EWCA Civ J0129-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(HIS HONOUR JUDGE MCNAUGHT)
Royal Courts of Justice
The President
(Sir Stephen Brown)
Lord Justice Stuart-Smith
Lord Justice Mann
91/0033
MR MARK EVANS, instructed by Messrs Richard Welsh & Co. (Clifton, Bristol), appeared for the Appellant (Petitioner).
MR P. FOCKE, Q.C., and MR P.R. BARCLAY, instructed by Messrs Sheppards (Kingswood, Bristol), appeared for the Respondent (Respondent).
This matter comes before the court firstly as an application to extend the time for setting down the appeal of the petitioner from the judgment of His Honour Judge McNaught on 19th March 1990. There was a delay, which has not been satisfactorily explained, between the giving of the notice of appeal itself which was in time, and the setting down of the appeal. Counsel has gallantly sought to accept some part of the blame for some of the delay, but it is quite plain that despite prompting the matter was not set down in time. An application was made to the Registrar of the Court of Appeal for an extension of time. He referred it to this court to consider on the occasion listed for the hearing of the appeal itself.
The court has it in mind that when considering an application to extend time, and effectively therefore an application for leave to appeal, the merits of the matter before the court are relevant. Accordingly, the court decided that it would hear the two matters together—in other words, it would hear the merits of the substantive appeal and would rule at the conclusion of the hearing upon the application to extend time, taking into account the merits or otherwise of the substantive appeal.
The applicant is the former wife of Mr Colin Victor Worlock. The parties were married in 1972, but in 1977 difficulties arose in their marriage and they eventually separated in 1982. Divorce proceedings were commenced and on 15th February 1983 a decree nisi was pronounced on the respondent husband's answer. Orders were made in relation to the children of the family; an order was made for their joint custody in favour of both parties, with care and control of the daughter to the petitioner wife and care and control of the son to the respondent.
An application was made shortly thereafter for financial provision by the wife and the matter proceeded with detailed requests for information made by the wife to the husband's advisers. It involved substantial rule 77 applications and the matter eventually came before the registrar for a substantive hearing on 18th December 1984. At that hearing both the husband and the wife were represented by solicitors and they had available to them, as witnesses, the accountants who had advised each party respectively.
When the matter came before Mr Registrar Frenkel in chambers the matter was opened to him on behalf of the wife and evidence was then called. This consisted firstly of the accountants on both sides. The court has a note of the evidence given by the accountants.
During the mid-day adjournment it appears that discussions took place between the professional advisers of the parties, and after the adjournment the matter was compromised. The wife and the husband agreed to an order for financial provision being made in favour of the wife. Although it is not recorded as a consent order, there is no doubt that the order was made with the consent of both parties. The order provided for the sale of the former matrimonial home, and the provision of eighty per cent of the proceeds of the sale to the wife, as a lump sum, with an order for periodical payments in the sum of £4,000 for one year and thereafter nominal payments. It was, in effect, intended to be and was understood by the parties to be a "clean-break" order.
It is quite plain that in the period leading up to the substantive hearing there had been extensive exchanges between the solicitors representing the parties, and searching enquiries made on behalf of the wife as to the husband's means and resources. The position which was revealed in the course of those exchanges and investigations was that the husband and his brother were directors of a building company called C. & K. (Kingswood) Builders Ltd, which had been incorporated in 1973.
There was, however, in the background a substantial building company which had been founded, as I understand it, by the husband's grandfather. After the grandfather the husband's father carried on the building company which was known as Worlock Builders. It appears to have been a thriving and successful building company.
After the father's death in 1976 the company was carried on by his widow, the mother of the two sons (one of them being the husband respondent in these divorce proceedings).
The evidence, which was given to the learned registrar by the accountants, supported in detail by their reports, was to the effect that although the brothers were directors of the Worlock Building company they were not shareholders, the financial control of the company remaining firmly in the hands of their mother, advised by the accountant, Mr Walter Michael Scott, and her solicitor. It appeared that "the boys", as they were referred to, were not to be entrusted with any substantial capital, and the registrar's note (to be found at page 68 of the bundle before the court) records:
"After Mr. Worlock's death there were meetings of Mrs. Worlock, Norcott and myself [Norcott was, as I understand it, the solicitor]. Norcott never considered the wife. We tried to avoid large sums of money to be in the hands of the children. This would be contrary to my advice. The main purpose of the secondary company was to give boys income without them having any control over the company's capital."
The secondary company referred to was the company called C. & K. (Builders) Ltd to which I have referred.
It appears to be clear from all the documents in the case, and in particular from the reports of the accountants as presented to their respective clients and which have been made available, that C. & K. (Builders) Co. Ltd in which the two sons were interested carried out building work at the instance of Worlock (Builders) Ltd, but that the substantial capital in the form of land, and other resources, remained in the building company which had been carried on by the father and the grandfather before him and then after the father's death in 1976 controlled by the mother of the respondent and his brother.
The position at the time of the registrar's hearing was indicated in the evidence of the wife's accountant, a Mr Wormald, who gave evidence and was cross-examined. The registrar's note of his evidence and cross-examination is to this effect:
"I do not say that Mr. Worlock [that is the respondent] had direct capital interest but he has an expectation in the builders company. This will depend on how his mother has framed her will. I have assumed that the brothers manage the company. I think it unlikely that the mother would control the company on her own. Mr. Worlock holds no shares in the builders company and he is in a minority on the board. Amounts to no more than hope of inheritance upon the death of his mother."
That reflected the conclusion in Mr Wormald's report, to be found at page 208 of the bundle, when he advised his clients: "In addition there is no doubt an expectation to obtain a more direct interest in the company Worlock (Builders) Ltd." That is additional to the present capital consisting of the house and motor car and the interest in C. & K. (Builders) Ltd which Mr Worlock, the respondent, had at the time. Mr Wormald's report continued:
"The history of this company shows that in practice Mr. Worlock has obtained a substantial income derived in effect from Worlock (Builders) Ltd. and that he is, with his brother, able to control the operations of this company and should in the future, derive substantial benefit in terms of both capital and income."
It therefore appears that at the time of the proceedings before the learned registrar it was appreciated by the wife that there was the possibility of an expectation coming to fruition in the future in Worlock (Builders) Ltd, but that no current interest was held by the respondent husband in the share capital of that company.
The sequence of material events thereafter is that in 1988 it came to the wife's knowledge that Worlock (Builders) Ltd had a holding of land which had assumed a very substantial capital value by reason of planning consents. She came into possession of a financial report which had apparently been made available to the husband as to the asset value of Worlock (Builders) Ltd. That indicated that the value of Worlock (Builders) Ltd in 1988 was to be assessed in millions rather than thousands of pounds. Figures have been canvassed, but it is not possible to be precise about it. It is sufficient to say that it is a very substantial amount, running into millions of pounds.
The wife then considered that she had been misled at the time of the original hearing before the registrar, and she sought leave to appeal against the order of the registrar in 1984, which had been made with the consent of both the parties. She applied through her solicitors to set aside that order on the grounds of misrepresentation and non-disclosure by the husband, and also for leave to appeal against it out of time. That matter came before Judge McNaught on 19th March 1990 when he considered the matter in the light of the evidence presented to him. He dismissed the wife's application for leave to appeal...
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