Family Law Hub

Joy v Joy [2015] EWHC 455 (Fam)

An interim application within long running financial remedy proceedings. H's arrears in respect of MPS and legal services provision for W stood at €60,000 and £90,000 respectively. W's objective at this hearing was to seek to secure the delivery of H's Bentley to her agents with the intention that it be transported to England to be marketed and sold, and the net proceeds of sale be held pending determination of her enforcement application. Sir Peter Singer directed that the Bentley be placed in the custody of W’s agents to be transported to England and kept here pending the outcome of applications relating to previous MPS and legal services orders.

  • Neutral Citation Number: [2015] EWHC 455 (Fam)

    Case No: FD11D03744



    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 5 March 2014

    Before :

    Sir Peter Singer

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    Between :

    Nichola Anne Joy (Applicant)

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    Clive Douglas Christopher Joy (Respondent)

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    Mr Stewart Leech QC and Mr Morgan Sirikanda (instructed by Sears Tooth Solicitors) for the Petitioner Wife

    Martin Pointer QC and Miss Kyra Cornwall (instructed by DWFM Beckman) for the Respondent Husband

    Hearing dates: 5 and 6 February and 5 March 2014

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    Sir Peter Singer:

    1. Over 5 and 6 February 2014 I heard interlocutory applications relating to the financial remedies sought by Mrs Joy (W). She was represented then as on previous occasions by Mr Stewart Leech QC and Mr Morgan Sirikanda. Mr Joy (H) was represented as before by Mr Martin Pointer QC, supported on this occasion by Miss Kyra Cornwall.

    2. That hearing was fixed as the return date for consideration inter partes whether without notice orders made by Mr Justice Cobb on 23 January should be continued or varied or allowed to lapse. As well as substantive freezing orders with which we have been primarily concerned, he effectively adjourned over W's request for leave to restore some applications I adjourned last year (for enforcement of maintenance pending suit and legal services provision, and for orders precluding H from participating further in the financial proceedings). In the period following his order H has applied to discharge the order of Mr Justice Cobb and to vary/discharge the provisions of maintenance orders previously made by me.

    3. The principal concern and objective on W's side was to seek to secure the position in relation to a 1928 4.5 litre racing Bentley registered in H's name, currently located in the south of France, and said by H to be worth £472,000. W maintains (though as far as I know this is as yet unsupported surmise) that the car may be worth up to £1 million. She asks that the vehicle be collected by agents on her behalf, transported to England and here sold so that its value remains available potentially to meet the orders I have already made and those which might hereafter be made by way of financial remedy.

    4. To put these issues into context it is necessary for me to describe a good deal of a convoluted and complex history, which I will attempt to do as succinctly as is possible. But before I recite salient aspects of the recent procedural history and the sequence of developments which have emerged I will attempt a thumbnail of the nature and range of the dispute.

    5. After some years of living together (W says since 2001, H maintains only since 2003) followed by their marriage in February 2006 the parties separated in December 2011. Their home was primarily in Bequia but since about August 2010 in the South of France. They have 3 sons ranging in age from 8 to 3. H now occupies the château which was their final matrimonial home, W lives nearby in rented accommodation, and the children spend time with them both as directed by extensive litigation concerning them which has taken place in the French courts. There was an extremely complex and expensive jurisdictional issue that I heard over about five days at the end of 2012 and in May 2013 which came to an end when H abandoned his case that he was domiciled in Spain. That, if it had been found to be the case, would have deprived the English courts of jurisdiction to hear the divorce proceedings and to embark upon ordering financial remedies. Decree nisi has since been pronounced. H in the course of those proceedings demonstrated a very significant lack of integrity and honesty in relation to their subject matter. The overall costs of that exercise were estimated to be of the order of £600,000. Since then financial issues have consumed the parties' and the court's time and much further expense.

    6. The substance of this family's wealth derives from H's business activities commenced and continued during the period of cohabitation and marriage. The bulk of it was placed in a BVI Trust ("the Trust") by H in December 2002. The Trust has as its trustee a Hong Kong based management company Royal Fiduciary Group ("RFG") of which Tim Bennett is a director. He has for long been one of H's tax and trust advisers and was much engaged in the discussions which over many years have attended H's flexible and fluid presentations of his domicile position in various quarters, not least in last year's proceedings. In May 2013 H estimated the value of the Trust assets to be £70m, subject potentially to over £21m of contingent liabilities in respect of borrowing facilities at that point enjoyed by H.

    7. H remained a potential beneficiary (with their children) of the Trust until the move to France. Fiscal considerations then dictated that he (and indeed the 3 children) should be excluded from benefit, initially for a fixed (although revocable) period until 2017. The family's very substantial living costs were met in very small part by modest monthly payments into a French banking account. (In May 2013, for instance, H with his then legal advisers at court calculated his monthly expenditure requirements at £115,000 or thereabouts, including £40,000 in relation to the maintenance and other expenditure incurred in the upkeep of an extensive stable of cars said to be worth of the order of £20m which now he and the Trust contend are all owned by a company within the Trust, bar the Bentley.) The payments into the French account and the overwhelming bulk of other expenditure were met over the years from the funds made available for him to draw upon at an overseas bank, EFG Private Bank ('EFG'). His overdraft at the bank (some £18m at the critical date at the end of last year) was secured by the back-to-back deposit of Trust funds and assets, with a stipulated limit of CHF25m (increased from CHF20m on 20 January 2012, when H and RFG apparently remained confident that his case on domicile would succeed and the threat of English financial remedy proceedings vanish). His drawings, as between himself and the Trust, were treated as his debt to the Trust.

    8. In the immediate aftermath of the collapse of the domicile case, on 1 May 2013 I made a consent order which (in summary) restrained H and others with whom he is connected (including Mr Bennett) from diminishing his worldwide assets below £35m, while allowing him to withdraw £145,000 monthly (to include payments to be made to W and the children, and up to £30,000 for his legal fees). On 12 June 2013 I ordered him to pay €14,700 per month to W for herself and the children for their general maintenance and rent (to include a French maintenance order in favour of the children for €3600 monthly), and provided moreover that he should pay £15,000 monthly for 8 months (a total of £120,000) to enable her to engage legal services. The intention was that this would enable W to fund her case through to FDR. W owns no assets of significance and does not have any income of her own. On the information that is available H's ability to meet these payments depended upon the continuation of his arrangements with the Trust and EFG.

    9. When in early July H served his Form E it annexed no documentation in relation to the Trust. In relation to its historical and current assets, and in relation to all but some very recent documentation, that remains the position. H asserts that he has no such documentation in his possession, power or control. It was not until receipt of H's answers to questionnaire in mid-January 2014 that W's advisers learned that the Trustees of the BVI settlement had (on an application to which only RFG were party) obtained from the High Court in that jurisdiction an order absolving them of any obligation to provide H with any documentation in relation to the Trust, and moreover determining that H "has no present entitlement, either in possession or reversion, to any asset of the Trust; and … has no right to require that any such entitlement be conferred upon him."

    10. By the date of the next hearing before me, 12 November 2013, H had not met the requirements of the 12 June order. He paid from the beginning of September onwards only €3600 (thus remaining compliant with the French child maintenance order) and the rent; and after two £15,000 instalments none whatsoever in relation to the legal services order. That has remained the position, and at the beginning of February his outstanding liabilities in relation to both elements of the June 2013 order amounted to some €60,000 and to £90,000. It is in relation to that order and those arrears that H seeks relief by way of discharge, suspension, variation and remission: in relation to which he filed a statement on the eve of the February 2014 hearing, and in relation to which W seeks enforcement and a Hadkinson-style order debarring H from defending her claims for financial remedies. The dates now (provisionally) fixed for me to consider those applications are 7 or 6 days commencing 25 or 26 March. An FDR is to take place before a High Court judge on 7 April. There is a further 2-day hearing fixed for 15 and 16 April, in the last days of the Family Division, for me to consider whether and if so what legal services provision should be made for W from FDR to trial. I am to conduct a PTR on 26 September and then a 10 day final hearing on 27 October.

    11. I take it to be both logical and the settled practice (as established for instance in Corbett v Corbett [2003] EWCA Civ 559, [2003] 2 FLR 385) before embarking on enforcement of an order susceptible of variation to determine whether or not to vary, suspend and/or remit: and I will bear that very much in mind when considering whether and if so how far to go down the arrears enforcement route which W urges me to take.

    12. Let me now recount developments leading up to and since the 12 November hearing.

    13. On 19 September 2013 a firm of Guernsey lawyers acting for EFG notified H that the bank regarded the Trustee RFG as being in default of a guarantee of the facility afforded to H in that "RFT have now informed DFG that you were, in fact, excluded as a discretionary beneficiary of the Trust by way of a Deed of Appointment dated 31 August 2010, and that the effect of that Deed is that you are currently not a beneficiary of the Trust and have not been since 31 August 2010." Under a provision of the Declaration of Trust quoted in the letter, and as EFG pointed out, RFT had no power to make trust property available other than to a beneficiary.

    14. Each party castigates the other for the steps the other took, each counter-asserts, which precipitated the Notice of Event of Default. Nothing to my mind for present purposes turns on this, but the Guernsey lawyers' letter may hold the key. It is true that a month later that firm again wrote to H to confirm that EFG had withdrawn the Notice and reactivated the facility "following confirmations provided by RFG." At the present time one can only speculate upon the nature of those confirmations.

    15. Third thoughts however soon prevailed, and on 28 October 2013 the Guernsey lawyers wrote on behalf of EFG that "as advised in our second letter of 18 October 2013 the freezing order made on 1 May 2013 by the High Court of Justice of England and Wales (as further extended on 12 June 2013) has placed the Facility into default… You were advised in that letter that EFG fully reserved its rights in respect of such Event of Default," that H's facility to make further drawings had ceased, and all amounts were immediately repayable and demanded forthwith. (I am sure I will be corrected if I am wrong, but I am not aware that that "second letter of 18 October 2013" has yet been disclosed in these proceedings.)

    16. In the letter of 31 October 2013 with which they sent W's then solicitors Withers a copy of that latest letter from Guernsey H's solicitors wrote that he was enquiring with EFG to ascertain whether an order discharging the injunction would be sufficient to convince the banks to continue the facility. In a later letter of 8 November 2013, in effect on the eve of the next hearing, they relayed that "there have been informal discussions between our client and Mr Stocker of EFG to see if the loan facility can be revived. As a result of the default Mr Stocker does not presently have the authority to restore the facility, however, he has indicated that if the injunction is discharged the bank is likely to reverse its call on the loan and allow drawings to continue to be made." Mr Stocker is H's relationship manager of long standing at EFG and at previous of his bankers. It was H's case at the 11 November hearing that the position remained as stated in that letter, and that no further elucidation or confirmation had been or could that day be obtained. So, I make it clear, H at no point in the course of that hearing represented it as guaranteed that the previous arrangements would be reinstated. Thus it is that the order whereby I substituted H's undertakings for the freezing injunction is based "on the assumption that EFG will reinstate the loan facility."

    17. Despite what H says were his best endeavours, EFG determined not to reinstate the facility but rather to enforce the bank's security. Trust funds and assets to the value of some £12m were as a result realised and taken by the bank. Withers were notified of this by letter dated 26 November 2013. H maintains there he was able to salvage only about €80,000 from the wreckage at EFG, and transferred those funds to his French banking account. His position was that he would continue so long as he could to pay the €3600 monthly representing the amount of the French child maintenance order, and the rent on their home. The letter concluded that he "is now taking steps to find liquidity and will revisit the issue of maintenance again at that point. Unless your client agrees this interim position our client will have no other option than to make an application for a variation of the MPS order."

    18. Two days later by a further letter Withers and W were informed of steps taken by the trustees on 26 November 2013, who by deed of that date had excluded H from being a beneficiary of the Trust on a permanent and irreversible basis. I have had no indication that the power to take those steps was not open to them. In a letter to each of the same date RFG explained amongst other things that EFG's actions in recouping trust assets to set off against H's liabilities "have unfortunately led to serious loss to the Trust in the amount of approximately US $18.9m. Further, as the Trustees understand it, the extinguishment of your personal liabilities without recourse to any of your own non-cash assets has in effect improved your own personal asset position by approximately US $7.06m. We will have to proceed to implement our back-to-back security charge over those assets immediately."

    19. On 3 December 2013 H and Sofia Moussaoui the partner at DWFM Beckman who acts for him attended a meeting convened in Hong Kong with representatives of RFG (who included Mr Bennett) and with Mr Richard Smith a Dubai-based friend of H who is the Protector of the Trust. Withers were sent a copy of RFG's note of that meeting on 16 December 2013, together with a copy of a further letter to H from RFG dated 6 December. The letter, and indeed the meeting notes, reflect the same stance as to the Trust's loss and H's enrichment ''by approximately US $7.06m, represented by the following free assets in France (and in Switzerland)" [and there then follows a list which for relevant present purposes includes "your'' Bentley car and a Piper Archer aircraft, of which more later].

    20. That letter also enclosed a copy of what is described as "a formal counter-indemnity letter whereby you undertook to reimburse the Trust any and all amounts that may at any time in the future be paid to EFG by virtue of their enforcement of the Trust's guarantee of the Facility" and stated that RFG "will be instructing lawyers in both France and in Switzerland to seek immediate saisie conservatoire and to commence formal recovery ('poursuite') proceedings." The indemnity enclosed bears the date 30 August 2010 which I observe is the day before the date of the deed of appointment (referred to in the preamble to the November 2013 exclusion deed) whereby the Trustees are said to have "revocably declared and appointed that the Settlor [H] (as "Class A Beneficiary") ceased to be eligible to receive benefits from the Trust for the period of seven years from [31 August 2010]." The counter-indemnity thus plausibly (as it currently seems to me) could be seen to fit into the rearrangements made to avoid exposure on the family's move to France to French wealth tax, the impôt de solidarité sur la fortune.

    21. In a statement made on the eve of the 5 February hearing H states that RFG had already instituted proceedings against him in Switzerland, with a first hearing to take place on 11 February 2014. So far as I am aware no further information relating to that claim was made available to W or the court at the hearing before me. H owns land at Zermatt specifically referred to by RFG as within the Trust's sights in their bid to recoup personal assets from H. My understanding gleaned from earlier hearings is that contracts for the sale of that land had in effect been exchanged with a delayed completion date not before the end of this calendar year. In May last year H then valued the net proceeds of sale at over £1.7m.

    22. By letter dated 16 December 2013 H's solicitors announced to Withers that he "is taking steps to liquidate assets." That however, they clarified, did not extend to enforcing a loan in his favour in relation to the château. The loan there referred to is an amount of about €2.6m which H has made available to the SCI (a property-holding company incorporated under French law) in which the property is vested. He has but a 10% interest in that entity, the minor children between them being entitled to the other 90%. I do observe in passing that, if as that letter and his most recent statement suggest, H is down to his last few Euros and has liabilities in relation to the Zermatt land alone of some CHF 90,000, then it is hard to see how he will be able for long to afford life at the château without recourse to extraneous resources.

    23. In I think mid-December Withers ceased to act and in due course Sears Tooth agreed to act for W. I was informed that they have so far received no payment on account of the £80,000 in costs which she has incurred with them, and that in addition she has an outstanding liability of €74,000 to her French lawyers. She is in no position to put Sears Tooth in funds either as to accrued or as to future fees and has no acceptable security to offer them. It was made plain to me that this firm's continuing willingness to represent W depends on the outcome of these applications.

    24. As will be seen H, on the face of it equally indigent in cash flow terms, suffers no equivalent impediment in present circumstances. H has a substantial indebtedness and increasing costs liability to DWFM Beckman. I was told that during the course of a consultation with Mr Pointer on 27 November 2013 there was discussion and, at least, agreement in principle that H would enter into what Mr Pointer designated a chattel mortgage of the Bentley in the firm's favour, to secure his costs to date and his continuing costs of these proceedings. (It was, if I understood correctly, at first suggested that the oral agreement then reached was in and of itself effective to create such a charge, but I believe that stance may have been abandoned.) I must deal in some detail with the surrounding circumstances, and will do so in the context of the history of what has been disclosed, and not disclosed, in relation to the Bentley in the course of these proceedings.

    25. To a statement he made on 6 June 2013 in relation to maintenance pending suit and legal fees applications H exhibited a letter from Mr Stocker of EFG which referred to his purchase of the Bentley from Stanley Mann Racing for £395,000 in October 2009. The EFG letter is dated 12 December 2011 and contained an offer of a £175,000 loan facility "to assist with the ancillary costs related to your separation/potential divorce from [W]." The loan was to be secured by the deposit with the bank of the vehicle's registration certificate. This it would seem is the only motor vehicle of significant value which remains in H's personal ownership.

    26. The Bentley had however been omitted from the list of his assets worth more than £100,000 to which H deposed on 31 May 2013, although in that document he showed as owned by the Trust via a company LCAL Anthology Inc "motor cars" to the value of just under £21m. (It subsequently emerged, in EFG's note of the 3 December 2013 meeting that "the Trustees will consider what steps they need to take in respect of the vehicles that [H] has registered in his name but which belong beneficially to the Trust by virtue of [my emphasis] the specific pledge letters dated 8 April 2013." That date falls shortly before the resumption part-heard (but with the illuminating advantage of the accountancy files which in the adjournment had been disclosed) of the domicile endeavour abandoned at the beginning of the following month. (It was, I observe, said in the meeting note that copies of the pledge letters were provided at that meeting, H and his solicitor then present confirm that none were.)

    27. It follows that for those pledge letters to have constituted effective disposals in April 2013 those vehicles must at that date have been owned by H. And it may be that the Bentley was not pledged because it was already charged, similarly on the basis that it was H's own so to do, to EFG in relation to the £175,000 loan facility: but this is speculation.

    28. The Bentley was similarly omitted from the Form E which H swore on 7 July 2013. H's solicitors remedied that by letter dated 22 August 2013.

    29. It was, I surmise, in the light of the charge given to EFG in support of that £175,000 loan facility that the Bentley was not included in the freezing orders made in May or June 2013, nor included within the undertakings given by H when the injunctions were discharged on 12 November 2013. Once however EFG had called in the loan and repaid itself from Trust assets the value of the Bentley once more became available to H. That must have been apparent to him and his solicitors when in consultation on 27 November there was discussion about pledging the vehicle to them in relation to legal fees. It was apparent to Withers who next day sent a fax pointing out that "since we assume that your client's Bentley is no longer pledged to EFG and is a free asset, it is incumbent upon him to take all steps to sell the vehicle. We await hearing from you that this is in hand and by way of moving matters forward will have joint conduct of the sale. Although your client has valued the car at £400,000, we have evidence to suggest that it is worth closer to £1m." That the Bentley was "free" was also apparent to RFG as it figures in the list of to-be-pursued assets referred to in correspondence and at the 3 December meeting.

    30. Answer to Withers pertinent point came there none. But by a letter bearing date 13 December 2013 H executed as a deed a document witnessed by Sofia Missaoui which (in summary) charged the Bentley to his solicitors with a sum in excess of £103,000 then recorded as currently due to them, plus fees incurred thereafter. It seems to be the case that the first intimation to W's solicitors of this development came in a letter dated 31 January 2014 from the senior partner of DWFM Beckman. No copy of the deed was provided before 3 February.

    31. On 23 January 2014, however, Cobb J had on W's without notice application ordered the preservation pending the subsequent hearing before me of the Bentley and given directions which would have required H, if served, to make arrangements for the Bentley to be delivered with all relevant documentation to W's agents. That did not happen. On 6 February 2014 I made a holding order pending this reserved judgment and the availability (not as it has transpired until 5 March) of relevant participants. I ordered H not to dispose of deal with or in any other way diminish the value of the vehicle pending the conclusion of that adjourned hearing. Then, as had Cobb J, I ordered that neither H nor any other person with notice of the order was to inform Mr Bennett or Mr Smith or any other Trust officer or representative of the existence of the orders, nor should he invite any of those persons that they or the Trust should take any step to acquire, charge or otherwise deal with the vehicle. Mr Pointer having taken H's instructions was able to reassure me on 6 February that H had abided by that order.

    32. It is in the light of this very unsatisfactory history that W invites me at this stage to take the most jaundiced view possible of H's and the Trust's and possibly also EFG's presentation. She invites me to conclude that what has been produced and presented is a stage-managed and crafted but fictional drama which has the underlying and collusive sub-text that H will when the dust settles return to a position where he has access, direct or indirect, to trust assets and to their value to meet his income and capital needs. She points to the hint in the 3 December meeting notes which suggest that when the time is ripe H may be taken on as an employee of the Trust or one of its businesses and paid a salary. She may have been surprised at the suggestion in those notes that were the children to be educated in England the embargo on their benefits from the Trust might be lifted so that funds could flow in their direction free from the ravages of at least French taxation. She might wonder what scope there may be, at a convenient time, for resettling this Trust in another which might more easily be able to meet H's needs. And she might remember that this ''New'' Trust itself replaced an earlier one to meet contingencies not yet fully made clear, but which prevailed at about the time of H's divorce and financial separation from his first wife.

    33. At the final hearing it may be asserted that the gloom and doom now attending H are mere theatrical devices which some time after the curtain on these proceedings comes down will be confirmed as the improbable constructs which (W maintains) they are. But at this stage I must proceed with caution, bearing in mind that the evidence in the case is not yet complete and in particular that I have heard no oral evidence specifically directed to many of the issues now raised. It remains not beyond the realms of probability to imagine that the contrary case might be made out, that RFG has throughout acted as a trustee should in balanced protection of its potential beneficiaries' interests.

    34. What if any orders should I therefore now make in relation to the Bentley? W's objective as set out in the draft of the order I have been asked to make, so far as relevant to that vehicle, is for its delivery up to W's agents together with all ownership, service history and insurance documentation. This with the intention that it be transported to this country and here be marketed and sold, and the net proceeds of sale held pending this court's order.

    35. W bases her claim to such relief on FPR 2010 Part 20, Chapter 1 of which makes provision for interim remedies. Rule 20.2 so far as material provides:

    (1) The court may grant the following interim remedies –

    (a) an interim injunction;

    (b) an interim declaration;

    (c) an order –

    (i) for the detention, custody or preservation of relevant property;

    (v) for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly; and

    (d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph(c);

    (f) an order (referred to as a 'freezing injunction') –

    (i) restraining a party from removing from the jurisdiction assets located there; or

    (ii) restraining a party from dealing with any assets whether located within the jurisdiction or not;

    (j) an order for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party's right to the fund;

    (m) an order directing any account to be taken or inquiry to be made by the court.

    (2) In paragraph (1)(c) and (g),'relevant property' means property (including land) which is the subject of an application or as to which any question may arise on an application.

    (3) The fact that a particular kind of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy.

    36. Unsurprisingly there is no specific reference to the Bentley in the prayer to W's petition or in the application whereby her financial remedy claims were initiated. In order therefore to decide whether the vehicle qualifies as "relevant property" for the purposes of rule 20.2(2) I must consider whether it is property "as to which any question may arise on an application."

    37. I have to say that I can see no reason in logic or principle why for this purpose the restored application for enforcement of maintenance pending suit and legal services provision orders hitherto made is not "an application" within which questions as to the Bentley may arise. If such an application is not for these purposes a relevant application then I am at somewhat of a loss to imagine what might be.

    38. That application for enforcement has been issued under rule 33.3(2)(b) "for an order for such methods of enforcement as the court may consider appropriate." In the ordinary case a writ or warrant of execution for seizure and sale of personal property is one method of enforcement which might follow, but the fact that that procedure exists does not, to my mind, of itself preclude the potential for an order for sale of the relevant property under rule 20.2(1)(c)(v), if in turn that provision applies to this vehicle.

    39. I emphasise that in this judgment and at this stage I am not proposing to order sale, and that all these considerations are subject to the outcome of H's variation application. But my preliminary view having heard the arguments for and against W's proposition that the Bentley is within the words of that provision is that the power to order sale would in this case arise. One of the "questions which may arise" on the enforcement application is likely, so it seems to me, to be consideration of the impact and the equities as between W and H's solicitors of the 13 December 2013 deed of charge. It is also possible that, when the current position is made known to RFG the Trust will seek to intervene to assert some other interest in the proceeds of the vehicle if sold: that would be consistent with the course of action highlighted in the note of the 3 December meeting and in surrounding correspondence.

    40. In deference to the careful arguments put forward by Mr Pointer I will just very simply at this stage state my interim conclusion as being that the words of the provision "or which for any other good reason it is desirable to sell quickly" are not limited by and therefore do not need to fall within the asserted genus of "relevant property which is of a perishable nature." It is tolerably plain to me that the second scenario in rule 20.2(1)(c)(v) is intended by the draftsman to be a true alternative and is not to be interpreted ejusdem generis with the first.

    41. In this case my present inclination would be to regard the sale of the Bentley in appropriate circumstances as desirable quickly if, for instance, that sale would provide W with some urgent relief from the parlous risk she runs of finding herself unrepresented in these proceedings because of H's asserted inability to comply even in part with past orders without recourse to those proceeds.

    42. Moreover, in this case the purpose of the orders I am making, and in due course of any order for sale and for any payment to W from the proceeds of sale, is and will be to secure and then to enforce subsisting court orders to or towards the extent to which they remain unsatisfied after H's variation application. This is a purpose quite distinct and distinctively different from merely providing a claimant with security for an as yet undetermined claim, as discussed in authorities cited by Mr Pointer UCB Home Loans Corporation Ltd v Grace [2011] EWHC 851, [2011] All ER (D) 228 and Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320.

    43. Mr Pointer drew my attention to the following passage at page 225 of the 2013-14 edition of Financial Remedies Practice (of which I am one of the editors). At paragraph 20.7 of the Commentary this is to be found:

    The list in rule 20.2 is plainly an attempt to set out every conceivable form of interim remedy for which a party may wish to apply, although the draftsman of the original CPR scheme, replicated in the FPR, did not rule out the fertile imagination of an applicant to conjure up an application hitherto unimagined and possibly also unimaginable (although were the court to dream up a new form of relief it would implicitly assume that it had always existed but had lain fallow as part of the court's own inherent jurisdiction). Thus rule 20.2(3) (CPR 25.1(3)) provides that 'the fact that a particular kind of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy'. The provision was apparently inserted in the CPR to make clear that the list was not intended to cut down the court's inherent jurisdiction, or to exclude powers granted by statute (e.g. to appoint a receiver under section 37 of the Senior Courts Act 1981).

    Mr Pointer invites me to conclude that "it necessarily follows that the attempt by W to squeeze the relief she seeks into rule 20.2 by invocation of rule 20.2(3) cannot work." I would like to reserve my position on that proposition, but my tentative view is that one does not need to go as far as 20.2(3) to find a power to order sale which was clearly anticipated even if not conceived by the framers of the rule, and to my mind is by no means unimaginable.

    44. Mr Pointer has launched a sustained attack on what he asserts was a lack of candour in certain aspects of the presentation of W's case made to Cobb J on 23 January. He suggests that the authorities emphasising the high duty of frankness and disclosure should lead me root and branch to dismember his orders. Nothing in my response to this should be taken by a fluid ounce to water down the impact of those authorities. But that is not a tributary down which I need travel, in my judgment. So far as the Bentley is concerned no steps were taken prior to the return date to comply with the order once it came to the attention of his solicitors and H (upon whom effective personal service of the orders was not made). I have concluded that there is jurisdiction for me to make the orders sought on 5 and 6 February to the extent I have outlined. This is not a case nor are these circumstances in which I would deprive W of the interim relief which I regard it as just for her to receive because of irregularities of the nature suggested and relied upon when the without notice application came before Cobb J.

    45. There will no doubt be issues for determination on 5 March with regard to the implementation of the orders relating to the Bentley, and as to the future course of these proceedings. One of the forms of relief which W seeks is that this court should vary the Trust as a nuptial settlement. Mr Leech asks that I should at this stage direct joinder of the children under rule 9.11(1): in terms a mandatory requirement unless the court "is satisfied that the proposed variation does not adversely affect the rights or interests of any child concerned." I believe that it would be premature to take that course at this stage. I am not aware that W has as yet established the evidential basis of the claim for what is presumably variation of an ante-nuptial settlement under section 24(1)(c) of the 1973 Act. I would wish to know more about how she puts this part of her case, and to consider (if as I suggest would be relevant) its prospects before embarking upon what could be the delicate and difficult business of securing participation by the children in these proceedings. Neither parent could in the circumstances act as their Next Friend, and so who could be found willing and able to take on that role and how would such a person be remunerated? Will it be relevant for me to bear in mind, when considering joinder, the uncertainties which must attend securing compliance in the courts of the British Virgin Islands with an English divorce court order directing variation of a trust there domiciled?

    46. There are premonitions of further complexities yet to come. On W's behalf it has been said an application to set aside the chattel mortgage of the Bentley will be launched in reliance on section 37 of the Matrimonial Causes Act 1973. [This has on 5 March been confirmed, and that application will be launched next week so as to give DWMF Beckman as ample opportunity as practicable to decide how to respond to it before, with other issues, I consider it in 3 weeks time.] Mr Pointer relayed to the court his instructing solicitors' position in relation to that which is that they have a valid equitable mortgage; they are confident of the quality of their security; and that they have taken advice in France which they believe confirms that it is effective there. They would wish to challenge the ability of the court to override the benefit to them of their contract. They would not wish the vehicle to be sold at this stage, because their contract with H is to continue to represent him, and a sale would prejudice that if any of the proceeds were directed elsewhere. So whether or not a set-aside application is made DWFM Beckman may seek to be heard on the application for the sale of the Bentley. Furthermore, RFG may yet decide to put in their bid for the vehicle or its proceeds pursuant to the counter-indemnity letter which they hold.

    47. I should in conclusion refer to another aspect of Cobb J's 23 January orders with which I need not deal at this stage. I have mentioned in passing a Piper Archer aircraft owned by H. It is in fact registered in the name of a foreign corporation which customarily holds title to such planes, Aircraft Guaranty Trust. There are good reasons why handover and/or sale of the aircraft could not be enforced at this point because of contractual commitments which bind it. Furthermore H's case is that he wishes to sell it and hopes to carry forward discussions with a prospective purchaser. The holding order agreed after the 6 February hearing provides that H may use the airplane to discharge existing contractual obligations and that he may enter into negotiations with the prospective purchaser in relation to its sale provided (i) no concluded agreement for the sale of airplane is made by him without either W's written consent or further order and (ii) H shall keep W informed of any offers made in respect of the airplane and of the gist of any negotiations for its sale.

    48. On 5 March I heard submissions as to the form of order I should at this stage make pursuant to this judgment. The order has now been agreed as to its form in light of the observations and short reasons whereby I resolved contested issues. In particular I have given directions designed to place the Bentley in the custody of agents on behalf of W for transportation to England and to be kept here to abide the outcome of the next determinations I must make. The sale of the aircraft if any seems likely to be agreed may proceed subject to safeguards and to the retention in a neutral way of any proceeds. I refused H both permission to appeal and a stay pending a proposed appeal but deferred somewhat the date for delivery up of the Bentley so as to enable any renewed stay application to be made to the Court of Appeal.

Judgment, published: 02/03/2015


Items referring to this

  • Further judgment in long running financial remedy proceedings primarily concerning whether H's claims that he could not access assets from a trust were "genuine or a contrived facade". Also includes lengthy consideration of the costs arising. Judgment, 28/08/2015, free

Published: 02/03/2015


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