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X v X (application for a financial remedies order) [2016] EWHC 1995 (Fam)

Judgment of Mr Justice Bodey considering the following issues, amongst others: whether a discretionary trust of which the husband was the primary beneficiary was a financial ‘resource’ available to him; the quantum of a discount to be applied to the value of the husband’s shares in a company; unmatched financial and domestic contributions by the husband; and whether to make a sharing or needs-based award.

Background
A summary of the background can be found at paragraphs 6 to 30 of the judgment. The parties met in 1996 when in their 20s. By the time of the hearing they were in their mid-40s with 4 children. The children all lived with the husband and were having no contact with the wife. The wife had an historic addiction to alcohol, but had not drunk since January 2013.

The husband had worked for an investment bank but left in 2000 to set up his own company ("the company"). The husband held some of the shares in the company personally, but others were held in two discretionary trusts, of which the husband's father was the settlor.

The parties' assets are summarised at paragraphs 31 to 38 of the judgment. The interest in this case comes in Bodey J's approach to the following issues. First, issues of computation: (i) at what date the company shares should be valued, for the purposes of the judgment; (ii) whether the discretionary trust of which the husband was one of a number of beneficiaries was a 'resource' available to him; and (iii) whether the value of the husband's shares (and the trust's shares) in the company should be subjected to a discount on the basis of the husband's unique importance to the company. Secondly, the husband's arguments on unmatched contribution. Finally, whether the court should make an award based on principles of sharing, or need.

Date of valuing the company shares (paragraphs 44 to 49)
Between the date of the final hearing and the date of the handing down of the judgment, the value of the company's shares had increased by some £15m. It had been flagged up during the trial by both sides that the shares were highly volatile. The usual authorities addressing the date at which the value of assets should be taken did not deal with the period between trial and judgment. The judge concluded that a court should be slow to admit adjustments to values after the hearing and before judgment; a snapshot had to be taken at some point in time and, in this case, the date of the hearing was the appropriate time.

The trusts as a resource (paragraphs 50 to 62)
Both sides had instructed chancery counsel. There had been detailed arguments on the interpretation of the trust documents. The particular question about which the parties were apart was whether the trusts were intended to benefit (i) the husband's father's bloodline, or (ii) just the husband and his bloodline. The judge found in favour of (ii), on an analysis both of the trust documents and the oral evidence of the trustees, the husband and the husband's father (paragraph 57).

However, the question for the court was a simpler one of whether the trust funds were "resources" available to the husband within the context of s.25 MCA 1973. In paragraph 51, the judge had already considered the decisions in Charman v Charman [2006] 2 FLR 422, Whaley v Whaley [2012] 1 FLR 735, and Thomas v Thomas [1995] 2 FLR 668. The fact that the husband was named as the primary beneficiary of both trusts was conclusive, not to mention that the trustees had the unfettered discretion to appoint trust capital to the husband, which power did not extend to any other beneficiaries (paragraph 58). 

The judge found, having heard the trustee in evidence, that it was a fair and reasonable inference that the husband would be assisted from the trust funds, subject to the quantum being available (paragraph 61). On the basis that it was wrong to impose improper pressure on the trustee and there were other beneficiaries, the wife had suggested 50% of the trust capital should be seen as a resource to the husband. The judge accepted this figure (paragraph 62).

Quantum of discount on husband's shares (paragraph 63 to 71)
The parties agreed that the husband held a pivotal position as regards the future prospects of the company and that a discount should be applied to the value of the shares. The wife proposed a discount of 2%, the husband proposed 40%. The judge noted that the authorities on whether a discount should be applied (Charman and Sorrell) were not directly germane, therefore, but he did not wish, "to differ from those experienced judges in this field about how very rarely circumstances will arise in financial remedy cases where an issue as to share valuation discounts should need to be raised or entertained." (paragraph 63)

The judge heard evidence from the husband on this issue, but labelled this as understandably not objective and based on 'doomsday scenarios' in respect of the reaction of the market to the husband selling shares in the company. The judge also heard evidence from the parties' own expert brokers (paragraph 65 to 67). The judge took a broad view of the discount, in the interest of 'simplicity', noting that the arguments were on the whole 'speculative'. The discount applied was 8% (paragraph 68 to 70).

There was some suggestion that the husband could borrow against his shares, as opposed to sell them, so as to raise lump sums to pay the wife and that, as a result, it was not necessary to apply the discount or to take into account notional capital gains tax. The judge dismissed this idea, referencing the decision of Lord Nicholls in White v White [2000] 2 FLR 981. Whilst accepting a possible benefit to the husband, if indeed he did borrow, it avoided the inevitable unfairness to the husband if he had to sell (paragraph 71).

Other issues of computation
The husband had accrued £1.5m of LTIP shares since the parties' separation. They were performance-related from the preceding 3 years. The wife argued that they arose from the husband's employment during the marriage. The husband argued that they did not vest until 3 years after separation. There was force to both arguments, the judge excluded 50% of the value from his calculations (paragraph 72 to 73).

The judge recalibrated the asset schedule, taking into account his decisions on the contested issues. The total pot was £36.945m.

The husband's arguments on contributions
First, the husband sought to argue that his pre-marital assets should be reflected in the outcome. Some of those funds had gone towards purchasing the first matrimonial home and the judge saw no reason to depart from the general rule that such payments, "become so much a part of the parties' shared family economy as to become or be swallowed up by 'matrimonial property'." (paragraph 79)

The husband had pre-marital savings of £500,000 which was a great deal of money in 1999/2000. They had enabled the family to function so that money could be ploughed into the husband's company. It was an unmatched contribution, but it could not be precisely quantified as much time had passed. The judge proposed, "to take it into account in a broad way when considering the appropriate reduction from the yardstick of equality." (paragraph 80 to 81)

Secondly, the husband sought to run a special contribution argument. The company turned over several £billion a year and he had provided evidence from captains of industry bearing witness to the husband's contributions and "genius". The judge addressed the relevant authorities and, although he did not doubt the husband's achievement, this was not a case where the husband had met the test of utterly exceptional special contribution (paragraphs 82 to 85).

Thirdly, the husband argued that his greater contribution to the domestic and child-care arrangements should be taken into consideration. The children had lived with the husband since the parties' separation. He did not allege conduct during the relationship; he accepted that the wife's historic alcoholism was an illness and that diminished contributions relating to the children were not her fault. Therefore, it was fair to disregard the husband's 'greater' contributions in this instance. The judge further made a finding that the wife had played as full a role as she could as a mother and homemaker, except when disabled through alcohol misuse. (paragraph 87 to 89) 

The principle of the award (paragraphs 90 to 99)
The husband's contributions had been unequal, but not so unequal as to make it fair to treat the wife's needs as determinative of the outcome. The judge adopted a sharing approach to the case.

The wife agreed that there should be a departure from equality as a result of the unmatched contribution. The judge would impose a broadly-assessed discount from the yardstick of equality and then carry out a cross-check to ensure the wife's reasonable needs were met. The wife had suggested 37.5% (albeit of a larger kitty) and the judge accepted that as well-judged and fair. £13.854m would meet the wife's housing needs and a Duxbury fund sufficient to meet her income needs in the future.

The judge addressed, finally, the structure and timing of his order. The wife's application for a transfer of property order and for a variation of trust would be stood over pending payment of 2 lump sums (paragraph 100 to 103).

Summary by Thomas Dance, barrister, 1 King's Bench Walk
___________________________________

Neutral Citation Number: [2016] EWHC 1995 (Fam)
Case No: FD14D00382

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice, The Strand,
London, WC2A 2LL

Date: 26th July 2016


Before :

Mr Justice Bodey

- - - - - - - - - - - - - - - - - - - - -

Between :

X
 Applicant
- and - 
X  Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Nigel Dyer QC, Daniel Bentham & Alan Boyle QC (instructed by Withers LLP) for the Applicant
Timothy Bishop QC, Michael Bradley, Barbara Dohmann QC & Flora Robertson
(instructed by Payne Hicks Beach Solicitors) for the Respondent
- - - - - - - - - - - - - - - - - - - - -

ANONYMISED JUDGMENT APPROVED
IMPORTANT:

The Judge hereby gives leave for this Judgment to be reported in this anonymised format.  This is on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be directly or indirectly identified by name or location, or in any other way.  In particular, the anonymity of the children and the adult members of their family must be strictly preserved.  Any breach of these requirements would or may be a contempt of Court and punishable accordingly.


MR JUSTICE BODEY:
A.  INTRODUCTORY.
[This Judgment originally contained a great deal more detail which has now been deleted or made vague in the interests of anonymity].
1.  This is an application by a wife ("the wife") for a financial remedies order against a husband ("the husband").  As always in these cases, the court's objective is to produce a fair outcome.  The application raises a number of disputed primary issues, particularly as to (i) the computation of the size of the wealth ("the kitty") and (ii) the proper approach to the decision as between the so-called "needs" approach and the so-called "sharing" approach.

2.  The two main issues on computation are: (i) whether a discretionary trust of which the husband is one of a number of beneficiaries is a 'resource' available to him; and (ii) whether the value of his shares (and the trust's shares) in a certain company should be subjected to a discount on the basis of his unique importance to the company.  As to the question of the appropriate approach to the overall decision, the husband maintains that his cumulative contributions to the welfare of the family have so exceeded the wife's contributions that any sharing approach to the case would produce an outcome which would amount to less than her needs.  The court should therefore treat this case, he says, as a "needs" case, meeting those need of the wife and leaving the balance in his hands.  The wife strongly contests this proposition.  She says that there is no justification for a departure from the conventional approach of equality as a yardstick, although she does concede that the facts do justify a reduction of her award to 37.5% of the kitty, leaving the husband 62.5% of it.  If, contrary to the husband's primary submission, the court does decide that fairness would best be met by a sharing approach, as distinct from a needs approach, then he prays in aid the following circumstances as justifying a much more generous division in his favour than that submitted for by the wife:

(i) his contributions of pre-marriage wealth;

(ii) his special contribution by way of an exceptional generation of wealth through his own personal 'spark of genius';

(iii) his post-separation endeavours in transforming the company concerned subsequent to the breakdown of the marriage; and

(iv) his exceptional contribution to the welfare of the family by caring for the four children and the home during (he says) most of the marriage as a result of the wife's indisposition through alcohol dependence.

3.  The parties have been represented as follows: for the wife, Nigel Dyer QC with Daniel Bentham and Alan Boyle QC (of the Chancery bar); and for the husband Tim Bishop QC and Michael Bradley, together with Barbara Dohmann QC and Flora Robertson (both of the Chancery bar).  I am grateful to all counsel for their written and oral submissions.  They have succeeded in conducting a case underpinned by bitterness and acrimony in a manner which has led to a helpful cooperative approach.  I have read and re-read most of the four core lever arch files together with a lever arch file of daily transcripts of the evidence and submissions, and the relevant parts of a lever arch file crammed with authorities.  I have heard oral evidence from the following nine witnesses: the husband's father  and the settlor of the two trusts in question; the trustee of the two trusts; the General Counsel, and Company Secretary of the company concerned; one of the brokers to the company concerned; the Chairman of the company; Simon Dunn (the wife's expert on the share discount issue referred to above); Daniel Ryan, (the husband's expert on the share discount issue); the wife; and the husband.

4.  Both parties have fought the good fight with all their might and at great expense with each side's costs being around £1.4 million, a total of £2.8 million.  This has resulted in a voluminous accumulation of information and issues ranging from commerce and business, through to the world of discretionary trusts and down to everyday family domestic arrangements.  Some of the issues raised within all this mass of evidence have been really quite trivial.  In the interests of giving as relatively straightforward a judgment as possible, I have tried to avoid getting too far involved in matters of technicality and/or detail.  To do so would produce a Judgment twice as long even as this is going to be, which would be neither necessary nor proportionate.  The consequence is that I shall take as broad a view of the issues as I feel the subject matter permits.  I shall not attempt to resolve all the many disputes of fact as between the parties (even where so invited by counsel) except where I consider it necessary to do so.  Nor shall I deal expressly with all the numerous arguments deployed by counsel, although I have borne them well in mind.  From the flavour of what I have seen and heard of the parties and from what is sufficiently clear about the finances, I am satisfied that justice can be achieved by a relatively broad approach wheresoever possible. 

5.  I am required by Section 25 of the Matrimonial Causes Act 1973:  "... to have regard to all the circumstances of the case, the first consideration being given to the welfare while a minor of any child of the family" under the age of 18.  In S25(2) there is the familiar list of considerations running from paragraphs (a) to (h) which have guided my thinking.  I do not propose to set out and discuss those subparagraphs under separate headings, but I am satisfied that they are covered in the paragraphs which follow.  The extent of anonymisation of this judgment and the question of what may and may not go into the public domain is for consideration later (probably I fear after the summer).  For the moment I am giving full details in every respect, although I shall be intentionally vague regarding the company's plans.


B.  BACKGROUND.
6.  The husband is now aged 46.  Following university he went to work for an investment bank before leaving to form the company which has become part of his life.  The wife is aged 45.  She left school at 16 before 'O' levels and with no qualifications.  She was working in the fashion industry when she met the husband.  From 1992 to 1999 the husband worked for the investment bank.  He was aged about 22 when he started.  His earnings increased from some £25,000 a year in 1992 to $1.4 million for the year 1999.  In 1996, following the flotation of a company belonging to the husband's father, he, the husband's father, gave the husband $1 million.  The husband did not actually take this until 2002, as set out in paragraph 13 below.

7.  In 1996 the husband and wife started dating.  She gave up her job in fashion in 1997, because she was spending a lot of time visiting the husband in Hong Kong where he had been posted.  In 1998, when the parties were both in their mid to late 20s, they became engaged.  In 1999 the parties were married.  The husband was 29 and the wife 28.  On 1st June 1999 the husband's account with the investment bank contained $1.5 million in cash and stocks.  Following the marriage the wife says she became a full-time mother and home maker, although the extent of this contribution by her is very much disputed as between the parties.

8.  By the end of 1999 the husband and two colleagues at the investment bank, a Mr X and Mr Y, were making plans to set up a business in pursuance of an idea which the husband says he conceived before the parties were married.  At the beginning of 2000 an off-the-shelf company in the Bahamas owned by the husband's father purchased an off-the-shelf company in the UK, which later changed its name to the present company's name.  For the purpose of this anonymised Judgment, I shall call it 'the Company'.

9.  In February 2000 the husband and his two colleagues gave up their employment with the investment bank to concentrate on building up the company.  The husband's father has lived at all material times in the Bahamas.  He persuaded the husband and the husband acquiesced that some of the shares in the company which he, the husband, might otherwise have asked to be taken in his own name, be subscribed for by a trust so as to protect them from over-indulgence. 

There is a substantial dispute about whether this trust was intended by the father to be merely for the husband and the husband's family or whether it was intended to be for the benefit of the husband's father's family, comprising the husband's father, the husband's mother and the husband's father's other children and grandchildren.

10.  In April 2000 the husband's father settled a trust in the BVI which, for the purpose of these proceedings, is being called "Trust A".  The husband's father settled $10,000.  The trustees of the settlement were Mr C and Mr D (the latter a member of the Bahamian and Irish Bars) the sons of an old friend of the husband's father, a local QC.  It was about now that the wife became pregnant with the parties' first child.  The following day, the company which later became the present company, allotted the Trust A trust shares for a four figure sum.  The husband was allotted a similar number of shares, for which he paid himself.  The actual numbers of shares purchased are now irrelevant, but between the husband personally and Trust A, their combined holding represented 34.75% of the company.  Mr X was likewise allotted 34.75%.  Mr Y and a trust of which he is a beneficiary were allotted a combined holding of 23.16%.  There were other subscribers as to the remaining 7.34%, making a total of 100%.

11.  On 3rd July 2000 the husband purchased the family's first matrimonial home, in London.  The price was £1.95 million and the husband secured a mortgage of £820,000.  Broadly speaking, the balance of £1.1 million came from his savings made by him whilst working for the investment bank.  On 5th October 2000 the proper law of Trust A was changed from the BVI to the Bahamas, where both the husband's father and Mr D, the remaining trustee, both live.

12.  Later in 2000 the parties' oldest child was born.  He is now aged 15 and a half.  At the time of his birth the wife was aged 29.  In 2001 the Company changed its name to its current name.

13.  In 2002 the wife gave birth to the parties' twin children.  They are now rising 14 and a half.  They were born premature at a time when the oldest child was only 14 months of age. The first twin was very ill for the early period of life.  In July 2002 the husband sold the first house for £2.7 million and purchased the second London home for £3.3 million.  Together with the proceeds of sale of the first house and a mortgage, he used the $1 million gift (amounting to some £600,000 at that time) which his father had made to him in 1996 as mentioned at paragraph 6 above.

14.  In 2003 the parties' daughter was born.  She is now aged 12 and three quarters.  At the time of her birth, the eldest child was aged 2 years 10 months.  The twins were one and a half.  So the wife had four children under the age of 3.

15.  In 2006 the husband sold the second house for £6.1 million and bought the parties' final matrimonial home for £7.7 million.  Also in 2006, the husband purchased a Dutch company that owned a chalet in Courchevel for 2.85 million euros.  He subsequently refurbished it in about 2010/2011.  It is a most luxurious property.  The parties used it for regular skiing and summer holidays with the children, although it would be rented out for huge sums at peak times for a couple of weeks a year, thus enabling it largely to pay for itself.

16.  From 2007, the wife accepts that her relationship with alcohol 'started to become destructive'.  The husband maintains that it was from much earlier than this, going back to the time of their daughter's birth in 2003.  Between February and March 2008 the wife was in the F Hospital having in-patient treatment for alcohol addiction.  It was during this period that she kept a journal or diary in which she set out her feelings.  That diary has become contentious within these proceedings, and I will come back to it.

17.  In 2008, perceiving a CGT benefit, the husband's father settled a second trust, which has been called in these proceedings "Trust B".  Mr D was and is the sole trustee of it, Mr C having by then already resigned his trusteeship of Trust A.  The next day, Trust A sold all its shares in the Company to Trust B in return for a loan note from Trust B in the sum of £21.6 million, the agreed value of the shares at that time.

18.  In 2009  Mr D, as trustee of Trust B, resolved to lend the husband £875,000 at 2% over base.  Mr D was content to let the interest accrue.  This loan was made possible (the trust's only assets being its shares in the Company) by the fact that a month previously it had sold a tranche of its shares for £1 million.  The loan of 875,000 enabled the husband to pay off a loan or part of the mortgage on the matrimonial home and to purchase £300,000 worth of shares in the Company's Joint Share Ownership Scheme.  In 2010 the share capital of the Company was split 100 for 1.  This is why the number of shares held by the husband personally and by Trust B trust are now measured in terms of millions and not hundreds of thousands.

19.  On 22nd June 2010 the UK budget increased CGT from 18% to 28%.  Shortly before midnight when the budget came into effect, Mr D on behalf of the Trust A settlement distributed to the husband £5 million worth of the £21.65 million loan note referred to above.  This left the amount still owing by Trust B to Trust A trust the sum of £16.65 million.

20.  Later in 2010 the Company was brought to the market by way of an IPO, raising capital from the market in the normal way.  It had been intended that Mr D would sell shares in the ownership of Trust B into the IPO in order to raise and pay the £5 million owed to the husband by virtue of the distribution, dated June 2010 above.  However, this proved problematic for commercial reasons, which do not matter, and the raising of the £5 million was left over for the time being.  In 2011, after the expiration of a "lock-up" period following the IPO, Mr D caused Trust B settlement to sell 2 million of its Company shares, raising £5 million.  On 30th June 2011 he paid £4.5 million of this to the husband in part satisfaction of the £5 million worth of its loan note, which had been assigned to the husband in June 2010.  The full sum of £5 million was paid in various advances between 30th June 2011 and 21st June 2013.  The husband used this £5 million for various [stated] purposes.

21.  In [month stated] 2012 one of the children suffered a blow to the head in an accident at school leading to a head injury.  This was obviously a very traumatic and worrying event for the family.  The wife's case is that she nursed him back to health.  The husband disputes that.  She does accept that the stress and anxiety caused her to go down hill.  She accepts she was drinking and that she found it "impossible to cope".  In September/October 2012 the wife went for in-patient treatment at the P Hospital.  It was whilst she was there that the husband says the marriage came to an end when he told her that he was going to separate from her as he could not take any more.  The wife denies that the marriage ended at that time.  She puts the date of final separation at May 2013.  The reason this is said to matter is that the Company share price was very low indeed in October 2012 but had risen by May 2013.  The issue of the date of separation is said to go to the husband's case on his having transformed the fortunes of the Company following the parties' separation.

22.  In late 2012 the husband was successful in raising [tens of millions of £s] through a Company "share placing".  The result was a much healthier position for the company.

23.  In December 2012 the wife accepts that she slipped back into drinking heavily.  It is her case that the marriage was still continuing at that time with relative normality, including sexual relations, although she does accept that things were very difficult.  The husband's case is that by now the marriage was dead in all but name and, to the extent that the parties did things together, it was more out of kindness on his part towards the wife and from a desire on his part to keep the worst excesses of her behaviour away from the children. 

24.  In 2014 a notable businessman was persuaded by the husband to become the new non-executive Chairman of the Company.  The share price rose to around £1p per share as compared with around 60p per share in September/October 2012.  Also at that time, January 2013, the wife went into rehabilitation in a clinic in Arizona, which the husband found for her, and for which he paid £25,000.  The wife says that she has been wholly abstinent from alcohol since January 2013.

25.  Between February 2013 and July 2013 the husband was in critical negotiations with another company towards securing an important deal with that company.  From about February or March 2013 to June 2013, following a return from the clinic in Arizona to this country (when the husband declined to have the wife back to the family home) the wife was back in rehabilitation in the USA, this time in California.  It was during this time in May 2013 that, according to the wife, the husband told her by telephone that the marriage was over.  By that time the Company share price was at £2.66 per share.  The wife has not seen the children (as they will not now see her) since she returned from that rehabilitation in California in or about June 2013.  Following that return from California the wife had a further period of in-patient treatment here in London.  She then moved into rented accommodation and has been renting a flat in London ever since.

26.  On 10th June 2013 on an ex parte application the husband was granted residence of the children.  They have since lived with him and now with the young woman who has become his partner and whom I shall mention further below.  There have been very heavily contested Children Act proceedings before Her Honour Judge Hughes QC about the mother seeing the children.  Although the judge made strong recommendations that there should be contact at the children's pace, such contact has (putting it neutrally) not been able to be established.

27.  In mid 2013 the all-important deal referred to in paragraph 25 above was completed.  This was highly beneficial to the cash flow and prospects of the Company.  On 24th January 2014 the husband issued a divorce petition based on the wife's alleged unreasonable behaviour.  By that time the share price had risen substantially and it was to rise higher the following month.  A decree nisi divorce was granted in June 2014.  Following that the husband issued a Form A on 24th September 2014, although this hearing has, in fact, proceeded with the wife as Applicant.

28.  On 20th October 2014 Trust A sought repayment from the husband of its loan to him of £850,000 made five years previously on 16th November 2009.  This arose because the husband's father  was in need of funds, he (the father) having lent Trust B settlement $1 million on 23rd November 2012 to enable it to purchase shares in the Company share placing already mentioned in paragraph 22 above.  The husband began repaying and has continued to repay Trust A, the loan to him of £850,000, by instalments.  The current amount owing is £612,000.

29.  In late 2014 the wife obtained part-time employment in the fashion business with the company of an old and close friend of hers.  She was earning at the rate of about £11,000 a year net for a three-day week.  That work, however, ceased in the summer of 2015 when the business required a full-time employee and the wife felt unable to commit herself, given her ongoing regular appointments with her treating psychiatrist, whom she still sees.

30.  In March 2016 various press reports started to appear in the online media in respect of the parties' marriage and in respect of the husband's relationship with his now partner, a young woman who was a model.  This led to some hurtful "trolling" of the husband by the wife using false names, which after initial denial she has now admitted.  I shall need to mention this further at part E below.


C.  THE ASSETS.
31.  At the beginning of the hearing I was helpfully provided with a joint asset schedule dated 14th June 2016 at which time the Company share price stood at £2.16 per share.  In running briefly through the assets here, I shall round the figures up or down based on that schedule with the result that the arithmetic will not precisely tally with the total.

32.  The parties' final matrimonial home in London is worth £11,750,000, which, deducting the mortgage of £8.6 million and costs of sale, gives an equity of £2.7 million.  There are then bank accounts in the husband's name containing an overall negative sum of £181,000.  He has certain investment funds together worth £71,000.  He has a loan facility with HSBC in the sum of £2.5 million and he owes Trust B settlement the sum of £612,000 already mentioned at paragraph 28.

33.  Through a company the husband owns the chalet in Courchevel worth £13.5 million gross.  Deducting a mortgage of £7 million and other taxes and costs of sale, the equity in the chalet comes down to £2.7 million.  Thus far all the figures which I have stated are agreed.

34.  Turning to the husband's Company shares, he has 14.4 million of these personally held worth gross £31.3 million on the schedule.  On the wife's case of a discount of 2% on any realisation and allowing for CGT, the net value is £24.6 million.  On the husband's case of a 40% discount and allowing for CGT, the net value of these shares is £15 million, a difference between the parties of £9.6 million.  The husband also has 727,000-odd personally held Company shares from a Long Term Investment Plan scheme (LTIP) which are valued at £1.576 million gross.  On the wife's case, with a discount of 2%, their value comes down to £1.544 million.  On the husband's case, with a 40% discount, those shares come down to £945,000.  However, he excludes them altogether, because he says that they reflect his post-separation work.  He also has 10 million-odd Joint Share Ownership Scheme shares which he purchased in 2009, as referred to at paragraph 18 above.  They vested in four tranches, the latter two tranches being after the parties separated, and they involve a 'hurdle' price.  On the wife's case, with a 2% discount, they are worth £1.06 million.  On the husband's case, a 40% discount would bring their value below the hurdle prices and therefore he excludes them altogether as having no value.

35.  As regards the wife, her assets are very straightforward.  Essentially her liabilities exceed her assets by roughly £2 million.  Those liabilities include loans from her brother-in-law totalling £700,000, a litigation loan of some £575,000 and unpaid costs of some £700,000.

36.  Lastly, there are the two trusts.  As already stated, Trust A holds a promissory note in the sum of £16.6 million due from Trust B.  The latter trust holds 14,290,000 Company shares worth gross £30,900,000 but it owes Trust A the sum of £16,655,000.  It seems to me for the purpose of this divorce settlement and since I am not carrying out some kind of audit here, that the simplest approach is to assume that Trust A trust would just waive the promissory note.  I shall therefore look simply at the shares in Trust B.  Taking their value at £30.9 million, less a discount of 1% on any realisation as per the wife's case, and adding in the loan of £612,000 due from the husband as above, then attributing 50% to the husband (being the amount which the wife asks the court to find is a resource available to him) the wife's figure in the asset schedule for the Company shares held in trust is £14.3 million.  The husband's figure for the same assets is zero because, on his case, the shares held in trust do not constitute a 'resource' available to him.

37.  Drawing all this together, the grand total of the kitty according to the wife is £41.498 million.  The grand total according to the husband is about £15 million.  The difference of about £26.5 million is essentially caused by (i) the differing discounts taken on the Company shares and (ii) more especially by the dispute between the parties as to whether or not the shares in trust are a resource available to the husband.  I shall deal with these issues in part G and recalibrate the asset schedule in part H according to my conclusions.

38.  One last point about the assets is that on 21st June 2010 the husband and his father entered into a forward selling agreement (actually seven such agreements of 2 million Company shares each), whereby the husband sold his personally owned Company shareholding to his father for £100 plus 97% of the market value of the shares on the completion date.  There were other terms which I need not go into.  The completion date was initially 30th June 2013, but it was subsequently extended by agreement to 30th June 2016.  Just before this hearing the completion date was further extended for three years to June 2019.  In his Form E the husband asserted that these contracts rendered him 'not free' to sell his shares (except to his father) before 2016, as it then was.  It seems to me highly unlikely, having seen the husband's father, that he would enforce this arrangement against the husband's wishes.  Even if he did so (and he has said in an e-mail dated 5th July 2016 that he would rescind the contracts if compensated for the 3% loss that he would suffer) it would still leave the husband amply resourced to satisfy the wife's award in these proceedings.


D.  THE OFFERS.
39.  The wife, as I have said, seeks the higher of (a) 37.5% of the overall net assets as computed by the court and (b) the sum of £21.8 million, being the sum at which she puts her needs.  The husband's counter-offer is that, based on the wife's needs as he estimates them, the wife should have £8.6 million.  This is broken down as to £4 million for housing £2.8 million for an income fund and £1.8 million to pay the wife's current costs and debts.  It would be paid as to £4.5 million within three months of the final order and as to the balance (less a small amount for his costs regarding the "trolling" episode explained at paragraph 41(a) below) 18 months thereafter.  Interim income arrangements would continue under his offer as at present.  It is said by the husband that this offer would leave the wife with 'a substantially greater share of the assets than she is entitled to under the sharing principle' and that it would 'amply meet her needs'.


E.  A PEN PICTURE OF THE PARTIES AND SOME SPECIFIC ISSUES REGARDING THE WIFE'S CREDIBILITY.
40.  The witness box is an inhospitable place.  Some rise to the occasion; others are daunted.  Here I consider that each party gave a good account of himself/herself, although neither could resist occasions of point scoring.  It is clear that under a relatively civil exterior there is still great hurt on both sides, although much more so as regards the wife.  Both parties came over as very different in terms of personality and temperament.  The wife is a broad brush person, not one for accuracy in points of detail.  She accepts that her memory has suffered since her extensive use of alcohol.  She comes over as seeing the big picture and tends to talk in hyperbole.  This is evident both in her statement and oral evidence, rendering some of the things she says, strictly speaking, inaccurate and exaggerated.  She is pleased and proud to have been able to remain sober since January 2013 and is heartbroken not to be able to see the children.  She comes over as warm and I suspect normally gregarious.  She is, however, stressed by the pressure of these proceedings and by the battle which (as she sees it) she has had to wage in the process. 

41.  There are three particular points in respect of the wife's credibility which it is convenient to mention here: (a) the first is her "trolling" of the husband as mentioned at paragraph 30 above; (b) the second is to do with her 2008 diary or journal, referred to at paragraph 16 above; and (c) the third arises out of her medical notes at the P Hospital in October 2012.  My findings in respect of these points are as follows. 

(a) As regards the wife's "trolling" of the husband, this was (as she now accepts) extraordinarily inappropriate, hurtful and unnecessary.  The things which she said publicly about the husband and his current girlfriend simply did not need to be said.  She drew in the children, saying that they should know the truth about how she (the wife) had been badly treated by the husband.  I will not repeat the wording, but it was hurtful and sly in that it drummed up public sympathy and it also served to sensationalise the parties' personal affairs.  Worse, the wife got a friend to post similar comments under a different tag name.  There is, however, mitigation for what the wife did.  I have seen the press article which, she says, gave rise to her feelings of hurt and anger.  It speaks of the husband having "dumped" her for a young model with whom he was and is now living and of whom there is a provocative photograph.  It clearly gave the impression that the wife is "second-hand goods" and that she had been supplanted as a mother.  This was something with which the wife will have struggled, given her lifetime's difficulty, which I accept, with her self-esteem.  I find that she was very hurt and upset and that this led to her doing what she did.  What was not excusable, however, was the fact that, when she was challenged as to whether she had posted the "trolls" in response to the press article just mentioned, she lied to her solicitors.  They, on instructions, then denied to the husband's solicitors that it had been her.  It was only when the husband threatened or took proceedings against the relevant newspaper that the wife accepted that she had, in fact, been the person who had posted the trolls concerned.  That discreditable episode clearly goes to the wife's credibility.  I must and will regard her evidence with a strong measure of caution as a consequence. 

(b) As to the second issue regarding the wife's 2008 diary, she makes in it what the husband sees as a number of concessions about her failings, her excessive drinking and her lack of contribution to the marriage.  I have read the entries with care.  It is quite a harrowing read of things written by someone whom alcohol misuse had brought to the depths of despair and self-loathing.  She was plainly vulnerable, frightened, out of her element in hospital F and hating being in rehabilitation.  The husband says she wrote the diary for him to read.  She expresses in it absolute love for him and describes him as her rock and her support.  She says how she is determined to do better for the children, like cooking them meals and doing other everyday things which the staff had been doing in her place.  It is said on the husband's behalf that these concessions are irreconcilable with the wife's currently expressed view that the husband was emotionally unsupportive and did nothing to help with her alcohol problem (even going to the extent of equipping the parties' homes with well-stocked bars and leaving her with access to a huge wine cellar).  Thus it is said that the wife is shown not to be credible.  I do not, however, see this as a credibility point.  Whether one calls the wife's 2008 journal a therapeutic document or merely a record of her then feelings in her then particular circumstances, that is all it was.  It was written in the context of someone at her lowest ebb clinging to her then perhaps idealised perception of the husband.  It is not very remarkable that a wife who has been through all that this wife has been through, and now comes out on the other side into independence, should have come to re-evaluate her feelings and to develop a polarised sense that she did not find emotional support in her relationship.  No doubt she, just like the husband, now recalls the awful parts of their relationship and not the good parts, as tends to be the way of things. 

(c) As to whether the husband spoke in the P Hospital in October 2012 about separating from the wife, she at first denied this.  However, when the notes from the P Hospital were produced under court order, it became clear that he was indeed saying at that time that he intended to separate from her, because the notes record: "…She was told by her husband that he wants a separation and confirmed her worst fears that he has had an affair".  The P Hospital notes have several clear references to this.  The wife accepts what the notes say (she can do little else) but denies that she remembered the conversations until she saw them.  It is put that this dents her credibility further and that in any event the date for the parties' separation is indisputably established by the notes as being October 2012.  Again, I do not see this as a credibility point.  It may well be that the wife's alcoholic consumption has left her without a memory of what happened in the P Hospital until prompted by the medical notes; or it may simply be that she had shut off that which she did not want to hear and had convinced herself that when she came out, the marriage continued as a genuine last ditch attempt to save it.  What the notes do show, however, is that the husband has undoubtedly been correct all along in saying that he told the wife in the P Hospital in October 2012 that the marriage was over.

42.  Turning now to the husband, he came over as a much more precise and careful personality, going to great lengths to establish and prove the points in issue.  He was quite remarkably on top of all the business and other aspects of his evidence, speaking very persuasively and at length in his wish to get his points across.  It is not difficult to imagine that when the gloss began to wear off the marriage, each party became increasingly frustrated: the husband trying to run a successful and very demanding business and having to cope with the consequences of the wife's use of alcohol; she being unable to cope with this illness (which all accept it is) suffering from a spiral of decreasing self-worth and feeling that the husband was preoccupied with his work.


F.  WHEN DID THE PARTIES SEPARATE? 
43.  I do not consider that this issue requires great precision.  On any view the marriage was very much in its death throes by October/November 2012 when the wife was in the P Hospital.  Basically, it never recovered.  I accept, as just mentioned, that in October 2012 the husband told the wife that they must separate and it is clear that she was drinking again within a couple of months of coming out of the P Hospital.  Even though the husband was in e-mail correspondence with her about domestic matters, his answers to her were perfunctory and devoid of any words of endearment.  He did take her to a show in December 2012 and I think he accepts there was some sexual activity, although I do not accept 'daily', as the wife said in evidence.  I do not accept either that there were discussions about going for counselling, which the wife asserted for the first time in her evidence and which the husband strongly denies.  It seems to me that this marriage was effectively over by October 2012 and that to carry it forward as subsisting in any meaningful way until May 2013, as per the wife's case, would not be a justifiable conclusion.


G.  COMPUTATIONAL ISSUES.
44.  (i) The date at which the Company share price should be taken.  An over-arching issue has arisen as to the appropriate date of the Company share price for the schedule of assets.  The schedule placed before me at the hearing, as I have said, used the price of £2.16 per share as at June 2016.  Since this hearing the price has risen to £2.73 per share, increasing the kitty by just under £15 million.  The possibility of this issue arising was flagged up during the hearing as between counsel.  Mr Dyer proposed that I be sent an updated Asset Schedule whilst I was working on this Judgment yesterday.  Mr Bishop expressed profound objection and opposition to that course.

45.  Section 25 of the Matrimonial Causes Act 1973 refers to the resources and liabilities which each party "has" (or is likely to have in the foreseeable future) but understandably it does not tie "has" to any specific stage within the process.  Points as to the date for valuations have arisen in some authorities, including in Cowan v Cowan [2011] 2FLR 192 at paragraphs 132 to 134, where Mance LJ referred to "the date of the exercise of the court's power".  In N v N [2001] 2FLR 69, Coleridge J referred to the date of the hearing as the correct date for the valuation exercise.  There are references in the other authorities with which I have been supplied this morning to "the date of the trial", namely by Mr Mostyn QC in Rossi v Rossi [2007] 1FLR at page 801 and by Roberts J in Cooper-Hohn [2015] 1FLR, 785.  There is also reference to the value being taken "at the hearing date" by Mr Justice Singer in S v S [2007] 1FLR at page 2140.  In the very little time which I have had to look at these cases, however, none of them appear to address the issue which has arisen here, namely a change in value as between hearing and judgment.

46.  Mr Bishop and Mr Bradley (neither of whom can be in attendance for this judgment) have e-mailed me with emphatic opposition to reopening and increasing the share value, describing this as 'a programme of rolling computation', which they say is 'unorthodox and misconceived'.  They have this morning e-mailed my clerk with a page and a half long document headed 'Points on Asset Schedule', with nine points where they say that there have been changes since the hearing which it would be disadvantageous to the husband (and therefore unfair) to omit from any updated Asset Schedule.  The arguments in favour of the wife for including the increased share price value are obvious and do not need to be rehearsed. 

47.  In my judgment, the court should be very slow indeed to admit adjustments after the hearing and before judgment in respect of the valuations used at the hearing.  It is fraught with potential difficulty, as Mr Bishop's response document shows.  There has to come a point in time in these cases when the snapshot of the assets is made.  That is more logically the date of the hearing, when arguments can be addressed on computation in an orderly way, as distinct from the date of Judgment, by which time the judge has to have done all his calculations leading to his conclusions.  Further, if 'extra time' is allowed during which valuation issues remain live, then the outcome of the case becomes fortuitous according to when the judge is able to work on the Judgment, whether or not he or she falls ill in the meantime, and so on.

48.  Here it is common ground that the Company shares are extremely, almost uniquely, volatile.  This would appear from any graph of their trading history, and Mr Dyer himself spoke in his opening of the price having been 'up and down like a yo-yo'.  If the asset schedule were revisited, then quite apart from Mr Bishop's points, one can envisage circumstances where it might be necessary to look into why the share price had risen and whether it was for some sustainable reason or merely for some clearly temporary reason.

49.  Taking into account all these considerations, my clear view is that the asset schedule used for my decision should be that which was in play at the hearing, adjusted only to take account of my decision on the computational issues.  When I consider my decision as to the quantum of the wife's award below, about which incidentally I was pretty clear in my mind the day after the hearing, I am satisfied that the order which I propose is overall a fair one, even though the shares are currently trading higher than at the time of the hearing.  This is not to say that there might never be a case where justice simply required an exceptional approach and a revisiting of the asset schedule between hearing and judgment: for example, a wholly unexpected and massive collapse in the value of a key asset.  That would be an obvious and necessary fail safe against clear injustice.  But any such cases would be in a different category from the predictable ups and downs of the volatile share prices of a commercial company such as that with which this case is concerned. 

50.  (ii) Are the two trusts a resource available to the husband?  I have received extensive submissions on this issue from Chancery leading counsel instructed by each party.  These were prefaced by lengthy Statements of Case relating to the two trusts running to a total of 54 pages and 263 paragraphs.  When all is said and done, however, the question is a simple one: are the assets in the trusts 'resources' available to the husband?  In Charman v Charman [2006] 2FLR, 422 at paragraphs 12 and 13, Wilson LJ said:  "... what does the word 'resource' [in S25 of the Matrimonial Causes Act 1973] mean in this context?  In my view, when properly focused that central question is simply whether, if the husband were to request [the trustee] to advance the whole or part of the capital of the trust to him, the trustee would be likely to do so."  In Whaley v Whaley [2012] 1FLR 735, Lewison J dealt with the same point as follows at paragraphs 112 and 113:  "... a discretionary beneficiary has no proprietary interest in the fund, but under S25 of the Act the court looks at resources, not just at ownership.  Thus whether a beneficiary under a discretionary trust has a proprietary interest is not relevant.  The resource must be one that is 'likely' to be available ... if the husband were to ask the trustee to advance him capital, would the trustee be likely to do so ... the question is not one of control of resources, it is one of access to them.  In deciding that question the court must look at the facts realistically.  The court will not put 'undue pressure' on trustees to exercise their discretion in a particular way, but may frame an order which affords 'judicious encouragement' to provide one spouse with the means to comply with the court's view of the justice of the case: Thomas v Thomas [1995] 2FLR, 668 ... In Thomas Glidewell LJ said what would not be undue pressure, viz if (a) the interests of other beneficiaries would not be appreciably damaged and (b) the court decides that it would be reasonable for the husband to seek to persuade the trustees to release more capital to enable him to make proper financial provision for his former wife."

51.  I have been taken in detail to the terms of the two trusts.  I hope I do no injustice by summarising the main points quite briefly.  Both trusts were settled by the husband's father.  As I have said, he placed the $10,000 into the first trust and $100 into the second trust.  In both trusts the "primary beneficiary" is defined as the husband.  By clause 4(1) of the first trust and Article 4(1) of the second trust the trustee: "... shall pay the income of the trust fund to the primary beneficiary during his lifetime."  As there has not, in fact, been any dividend declared on the Company shares, this provision has not yet been applicable.  Those representing the wife, however, make the point that this is a matter of the husband's personal and/or commercial choice.  Under the terms of the trusts he could require the trustee to invest at least some of the fund for a reasonable income return, to which income he (the husband) would be solely entitled.  On the value of the shares in the 2008 settlement, even when netted down, this would be a considerable annual sum.  I say 'at least some of' the fund in an acknowledgement of the asserted commercial need for the husband's so-called 'alignment' to the Company to be preserved, as is discussed at part G(iii) below.

52.  Then by clause 4(2) of the 2000 trust and Article 4(2) of the 2008 trust, there is provision that the trustee "shall pay" the income of the trust fund to any surviving spouse of the primary beneficiary (the husband) during her lifetime.  Clause 4.3 and Article 4.3 of the two trusts provide importantly that:  "... for so long as the respective interests of the primary beneficiary and his spouse in the income of the trust fund subsist, the trustee may pay or apply the whole or such part or parts of the capital of the trust fund to or for the benefit of the primary beneficiary and his spouse."  Subject to that clause/Article there are trusts over to the primary beneficiary's children and if those children die before obtaining a vested interest, then to their children (who are described specifically as the grandchildren of the primary beneficiary).  Further detailed provisions are then set out, which I do not think I need to rehearse here.

53.  To complicate matters, both trusts contain schedules of beneficiaries which include, amongst others: "... the mother, father and siblings of the primary beneficiary [that is to say the husband's parents and the husband's siblings] and all and any children or grandchildren of those persons [ie including the husband's parents' other grandchildren]."  In the 2000 settlement this schedule of beneficiaries is not linked by cross-reference in any way to the operative provisions of the trust, although in the 2008 trust it is linked under the definitions section.  In neither trust do the persons in the schedules appear as persons whom the trustee is expressly permitted to benefit under the dispositive provisions of clause 4 or Article 4 respectively.

54.  This is unfortunate, as it goes to the heart of the dispute about the nature of the two trusts, which is in turn relevant to Mr D's paying regard to the husband's father's wishes.  That dispute as to the nature of the trusts is as to whether the intention of the husband's father as settlor was to benefit his own blood line (as he and the husband and Mr D maintain); or whether it was merely to benefit the husband's blood line (as the wife argues).  On that point, I have heard and read extensive evidence from the husband's father, Mr D and the husband himself.  I have heard them cross-examined.  The thrust of their evidence is very firmly that the husband's father intended to benefit his extended family, not merely the family of the husband.  There is support for this in the statement of the General Counsel and Company Secretary of the Company.  He states at paragraph 9 of his statement of 4th March 2016, on which he was not challenged:  "... in one of our many discussions regarding the company ... in the months and weeks leading up to the Board meeting in April 2000, I clearly recall [the husband] mentioning that as part of the overall structure his father was planning to set up a trust for the benefit of the father's family as a whole". 

55.  It is clear too that the husband's father must have had some intention that his wider family would be able to benefit from the trusts, as otherwise the schedules of beneficiaries just mentioned would not have existed at all.  He himself drafted the first trust, the 2000 one, based on a draft provided to him by the Company Secretary and having consulted by telephone with his old friend, the Bahamas QC.  But the drafting was ineptly done in that, as I have said, it did not tie in the schedule of beneficiaries at all to the operative or dispositive provisions of the deed.  The 2008 settlement, however, was drafted by a trust specialist, Mr D although under pressure of time.  He says he intended to mirror the 2000 trust as per the husband's father's instructions and wishes, which he (Mr D) states were steadfastly and from the outset to benefit the husband's father's, extended family.  What is clear, though, is that the terms of the 2008 trust no more tie in the schedule of beneficiaries to the dispositive powers of the deed than did the 2000 trust.  This became described by Mr D in the witness box as an error on his part (ie an error in not reflecting better in the drafting the stated wishes of settlor as to the so-called 'dynastic' nature of the trust).  He, Mr D, spoke of possible rectification of the 2008 deed, which implies a mistake.  Mr Boyle makes the point that this is difficult to reconcile with an e-mail from Mr D to the husband's father dated 2nd December 2013 confirming the terms of the trusts as being for the husband and his (the husband's) line (ie with no reference to the husband's father's line) to which e-mail there was, according to Mr D, no response in protest from the husband's father's.

56.  All this is somewhat bewildering.  There was no mention in the extensive pre-trial materials (including 'pleadings') to there having been a mistake in the preparation of the 2008 trust deed and there were one or two distinct indications in the oral evidence of both the husband's father and Mr D suggesting that the wishes of the husband's father had indeed been to benefit the husband's family only (see daily transcript for 29th June 2016, pages 129-132 and for 30th June 2016, pages 72 and 73).  However, it was not put to the husband's father or Mr D in cross-examination that they have been colluding to put forward a false case about the width of the husband's father's wishes (so as to help the husband's case by maximising the number of potential beneficiaries whom Mr D has to take into account).  Both the husband's father and Mr D came over as apparently credible witnesses in what they told me from the witness box.  The husband's father's wishes are, as I say, also borne out by the albeit ineptly drafted references to the wider range of beneficiaries contained in the schedules to the deeds (ie going down the husband's father's blood line) and by the unchallenged evidence of the General Counsel of the Company mentioned at paragraph 54 above.  So I am satisfied, on the balance of probabilities, that the husband's father's wishes were and have always been as stated, albeit that this finding does not sit comfortably with the wording of the two deeds, especially the 2008 one, which was professionally drafted.  I imagine that the explanation for these disjunctions between (a) the wording of the deeds and (b) the evidence of the husband's father's wishes and intentions lies in the informality with which these arrangements have been treated thus far in practice.  There is ample evidence, and this is not to suggest anything improper, of the very informal ways in which the husband's father and Mr D have historically dealt with the trusts, which clearly supports such a proposition.

57.  I am in no doubt in any event that Mr D would regard himself as bound to take account of the wishes of the husband's father in practice when deciding what to do if the husband asked him (Mr D) for an advance of capital from the trust funds.  Furthermore, whatever may or may not be the proper strict construction of the deeds, the trustee's powers within them are so very wide, (as per the schedule put in by Ms Dohmann QC) as to amount to giving the trustee more or less all the rights and powers of absolute ownership.  Therefore, regardless of the present operative and dispositive parts of the deed, Mr D could, in his absolute discretion, vary the trusts and add or exclude beneficiaries as he felt necessary to give effect to the husband's father's stated wishes and intentions.

58.  After all this is said and done, the question remains the simple one set out at the beginning of this section: are the trust funds resources available to the husband?  It has to be answered on the balance of probabilities.  Here I find the plain words of both trusts compelling.  In reality one needs to look no further than them.  They describe the husband as the "primary beneficiary".  They give him and his surviving spouse the income on the fund for their lives and, during the subsistence of those rights, they give the trustee an absolute discretion to apply the capital of the fund to the husband as the primary beneficiary and his spouse.  No other beneficiaries are given the express right to be considered for such advancement of capital.  It is abundantly clear and I find that whatever wishes the husband's father may have had concerning his own wider family, the foremost intention was for his son, the husband, to be the primary beneficiary, which to my mind means exactly what it says.  This wording of the deed is in itself quite sufficient, applying the authorities above, to justify a finding that if the husband approached Mr D for a reasonable advance of capital, then Mr D would (having taken account of all relevant circumstances at that time) probably accede to such a request. 

59.  I am fortified in this view by having had the benefit of seeing and hearing Mr D give evidence.  He was called by the husband.  Evidence was led from him by Ms Dohman (a) in support of his (Mr D 's) statement before this court and (b) in respect of the various letters written on his behalf by his solicitors Messrs Harcus Sinclair in 2015.  Within those letters are representations that, if the husband requested capital, "... this would not be advanced, given the trustees own only the illiquid Company stock" (letter of 2nd April 2015); and that Mr D "... sees no reason ... why he would raise cash and advance it to [the husband] if the husband made such a request" (letter 26th May 2015).  These representations tally with the husband's own pleaded case at paragraph 115 of Ms Dohman's Statement of Case that:  "... it is highly unlikely that the husband will obtain a further benefit from either settlement."

60.  Presented with this case as advanced prior to the hearing and in view of Mr D's having voluntarily attended to give evidence, Mr Boyle asked a series of questions starting at page 73 of the daily transcript for 30th June 2016, designed to explore further Mr D's possible views if the husband were to request financial assistance.  This sequence carried through to page 84 and included Mr D stressing the extent to which he would give great weight to the husband's father's views and wishes.  I reverted to this question of 'likelihood' at page 104 et seq of the daily transcript, because I wanted to get the best idea I could as to how Mr D might in future react to a request from the husband and because I wanted to give him every opportunity to rebut the flagged up submission of the wife that the trust funds are a resource to the husband.

61.  I entirely accept Ms Dohman's point that the discretion of a trustee cannot be fettered in any way by the court.  Nor can he now commit himself, nor be expected to do so, as to any particular course of action at any future point in time.  That is trite law, and to demonstrate it she referred me to RBS (Cayman) Limited v W [2010] FSD, 186, a decision of Henderson J in the Grand Court of the Cayman Islands, particularly paragraphs 39 to 42.  On the other hand, the proper approach to 'resources' as set out above does require the court to make an assessment of likelihood.  A trustee who had been stood in the witness box backed by his views as to the future set out in his solicitor's letters could well have cause to feel aggrieved if, without having been given the chance to explain and stand by those views, findings were made by the court to the contrary that he would be likely to advance capital.  Obviously the questions addressed to Mr D were entirely hypothetical.  Obviously everything would depend on all the circumstances at the time of the husband's assumed request: the amount which he, the husband, was seeking; the needs at the time of all the other beneficiaries; the wishes originally and at the time of the husband's father as settlor; the amount and nature of the trust fund and how it had been built up; the distribution(s) already made to the husband; the likely future needs of other beneficiaries under the husband's bloodline and under the husband's father's bloodline, and so on.  All that is a given.  But a fair and reasonable inference from the totality of Mr D's answers in his oral evidence is, in my view, quite obviously that all things being equal, he would be likely (without being bound) to assist the husband from the trust funds, subject to the quantum being reasonable in all the then circumstances.  Nor is this in any way counter intuitive.  There is an affectionate father/son relationship between the husband's father and the husband.  The husband's father told me that he is (rightly) proud of his son and of what his son has achieved in the Company.  Obviously it is not the work and achievement of the husband's father which has built up the value of the trust funds, but the work and achievement of the husband.  The husband's father accepts that his monetary contribution (ie his only contribution) to the funds was "minimal".  So there is no reasonable reason why the husband's father or Mr D should stand in the way of a reasonable capital advance to the husband, subject to the various considerations which I have outlined.  Accordingly, I am wholly satisfied that the 'likelihood' test is made out and that in principle the trust funds are a resource to the husband.

62.  The question then is how much of the funds represent such a resource?  The court needs to be circumspect.  It would clearly be wrong to impose any improper degree of pressure on Mr D.  He has the interests of the other beneficiaries broadly stated to consider.  He is quite clear that this includes the husband's father's family.  In my judgment, the submission of Mr Dyer and Mr Bentham is well-judged that 50% of the funds in the trusts would be advanced to the husband if he requested it and therefore represents a 'resource' of his.  Further, I see every likelihood that, if so requested, Mr D would waive repayment of the £612,000 referred to at paragraph 32 above owed by the husband to Trust B trust from back in 2009, which he (Mr D) permitted to remain outstanding until October 2014, when repayment started during the course of these proceedings.  This would leave ample funds for the other beneficiaries.  The fact that, in reality, it might turn out that more would be advanced to the husband in Mr D's discretion is the husband's good fortune and is not something which I can or should properly take into account as a 'given' nor as a resource of the husband's.

63.  (iii) The quantum of discount on the husband's shares.  On this issue I have heard evidence from the husband, the broker referred to in paragraph 3 above, Simon Dunn and Daniel Ryan.  It is agreed between Mr Ryan (for the husband) and Mr Dunn (for the wife) that a discount is necessary on the facts of this case in order to reflect the pivotal position which the husband is seen to hold as regards the future prospects of the Company.  Accordingly the authorities relied on by the wife of Sorrell v Sorrell [2006] 1FLR, 497 (Mr Justice Bennett) and Charman V Charman Number 2 [2007] 1FLR, 593, at paragraph 89 (Mr Justice Coleridge) are not directly germane to the issue before me, as it is purely one of quantum.  I would not, however, want to differ from those experienced judges in this field about how very rarely circumstances will arise in financial remedy cases where an issue as to share valuation discounts should need to be raised or entertained.

64.  I mean no disrespect to the husband when I say that I do not propose to attach any significant weight to his very firmly held views about the size of the discount, because he is inevitably not objective.  His e-mail to the broker of 31st October 2014 asking the broker's opinions on discount was clearly predicated (as the husband must have realised) on extreme hypothetical scenarios most likely to give rise to the maximum discounts, "doomsday scenarios", to adopt Mr Dyer's expression.  When the husband was asked by the wife's solicitors if he had asked the broker to consider a sale of less than 100% of his holding or staged realisations, the husband's rather abrupt one-word response was "No".  The other three witnesses are, however, objective but the numerous contentious factors within their evidence point individually and cumulatively in wholly conflicting directions.

65.  Considerations relied on by the broker and Mr Ryan as going to increase the quantum of the appropriate discount may be summarised as follows: the extraordinary historical volatility of the Company's shares, which is clearly established on the evidence; the fact that the real value of the company is regarded as being in its future prospects, in respect of which the husband is clearly seen by the market as utterly pivotal; the fact that the majority of the shares are held by very few investment funds; the vulnerability of the Company's  shares to being 'shorted'; the likely perception of investors that any reduction of the husband's 'alignment' with the company for any reason could signal a lessening of his commitment, which would in turn, as it is put, "spook the market"; and the fact that although an explanation could be given to investors of the need to raise money to satisfy a court order, it would nevertheless be unlikely to persuade them of the husband's genuine continuing commitment.

66.  Factors relied on by Mr Dunn as pulling in the opposite direction and suggesting a lower discount may be summarised as follows: the fact that the husband is held in high esteem by essentially very loyal investors; the fact that he is clearly a very persuasive speaker and would be influential in explaining to investors (a) his obligation under court order to raise money and (b) his complete continuing commitment to the company; the fact that the financial press has carried numerous articles already about the likely need for the husband to realise some of his stake in the Company to fund a divorce settlement (as to which Mr Dyer and Mr Bentham have produced a schedule showing no negative impact on the sale price); and the fact that discounts applicable to the shares of a number of other divorcing Chief Executive Officers in the past have generally been modest (contrary arguments being that the factual matrixes of those examples relied on by Mr Dunn were assertedly very different from the factual matrix here).  There is then the argument advanced by the wife that investor knowledge of the forward selling contracts whereby the husband sold his shares to his father (referred to in part C above), was so handled as not to produce any detriment to the share price. Last, there is the wife's point that the various investors in the Company to whom Mr Ryan spoke in preparing his report were unintentionally encouraged by him (by the nature, sequence and very fact of his questions) to think in terms of a possible sale of all the husband's shares and therefore of his likely departure from the company.  This is said to have been likely to have made them unduly 'windy'.  It is clearly not in the big investors' interests that the husband's alignment should be lessened in any way or for any reason.  It is said on behalf of the wife that this point impacts on the view of all the investors to whom Mr Ryan and also the broker have spoken: namely that their starting point in answering questions would have been a wish not to see the husband's commitment to the company reduced for any reason, as to which possibility they would have been quick to express anxiety.

67.  I am satisfied that each of the broker, Mr Ryan and Mr Dunn has been trying his respective best to assist the court.  Each has relevant experience in different ways, although looking at their respective CVs and track records of practical work, the broker's and Mr Dunn's are very distinctly more 'hands-on' and practical than Mr Ryan's.  The range of opinions is extensive, extending from quite modest discounts per Mr Dunn to as much as 50% per Mr Ryan.  Those opinions are, on any view, an attempt to estimate the unpredictable, because the outcome in practice of any transaction involving the husband's shares would depend on market factors and forces at the time.  I refer, for example, to the then trend of the shares, the tenor of the then recent press reports, the state of contractual prospects with third parties, the general political and commercial situation at that time, and so forth.  All such considerations would be fact-dependent.  So would the subsequent question of whether the price would or would not pick up again reasonably soon after any transaction, as has occurred in several of the examples relied on by Mr Dunn.

68.  There has been discussion of a stepped approach in the evidence (and particularly in Mr Dunn's report) as regards the quantum of the discount, based on different predicated scenarios: (a) a sale by the husband of some or all of his personally owned shares; (b) a transfer of some of those shares to the wife; and/or (c) the same possible transactions in respect of the shares owned by the trust.  With respect to the efforts of all concerned, I consider that the exercise has, with the best of intentions, become over-sophisticated, given that it is all speculative.  In the interests of simplicity I propose to take a broad view of the discount and to treat it generically, whichever precise transaction might nominally be performed.  I regard this as proportionate and reasonable (parting company with the differential estimates of Mr Dunn on this point), because this whole exercise is not only (as I say) speculative, but also very likely only notional, since the husband has made clear his probable intention to borrow funds towards meeting the wife's award.  The most important point of all, to my mind, is the market's likely reaction to any transaction perceived as reducing the husband's alignment to the company.  Such reaction would, as I see it, probably be relatively similar whether the husband dealt with his own shares (by sale or by transfer to the wife) or whether the trust did so.  Either way the husband's name would feature within the identity of the seller/transferor.  I would be surprised if the hard bitten professional investors of whom I have heard spoken would imagine that the trustee of Trust B  would trade its shares without the husband's knowledge and approval (even if they did not know that he is the primary beneficiary).

69.  I take full account of all the things said to Mr Ryan and the broker by the shareholders, whose expressed concerns about alignment they report.  I recognise that it is not the court's own view of what would be a reasonable response from investors which matters, but the court's view of the likely response of the market.  That said, I have seen good first-hand evidence from the witness box at this hearing of just how persuasive and convincing the husband can be, and I attach weight to what I see as the likelihood that in speaking in advance of an unwanted proposed transaction, investors would have tended towards discouraging that event.  In my judgment the opinions formed by the broker and Mr Ryan are likely to have been affected on the issue of discount by way of their discussions with investors unduly worried about questions seeming to imply the seeds of a possible departure by the husband from the Company.  As regards the broker's opinions on discount, I note that they find their origins in his e-mail to the husband of 6th November 2014 and his statement of 1st March 2016.  In the latter of these documents, he predicates only the husband's announcement as being that any sale was "for personal reasons".  Although he did discuss in his oral evidence the reason for realisations being the need to satisfy a divorce settlement, I accept Mr Dyer's submissions (a) that there is a world of difference between "personal reasons" (which could cover practically anything) and a sensitively handled announcement of the need to satisfy a court order; and (b) that the broker's thoughts about the discount issue were probably caused to be more pessimistic than they need have been by reason of the way he approached the issue from the word go.

70.  In all the circumstances, where there are differences of expert approach and opinion I tend more towards the views of Mr Dunn; although, as I have said (and in the light of all the competing evidence I have heard) I do not propose to follow them to the letter; nor do I propose, repeating myself, to adopt his attempts to differentiate with precision between different possible transactions.  Doing the best I can, I propose to resolve this vexed computational issue on the basis that the overall discount on the shares held either by the husband directly or in the trust, and whether sold or transferred to the wife in specie, should be taken notionally at 8%.  I consider that this admittedly broad brush approach does adequate justice to the numerous points and counter points which I have heard and considered on this topic.

71.  In my judgment, this discount needs to be factored into the schedule of assets regardless of whether or not the Company shares actually come to be sold or transferred so as to meet the wife's award; even, for example, if the husband ends up borrowing against his shares.  In so saying, I accept the argument of Mr Bishop that, for the reasonably foreseeable future, the shares cannot be turned into cash (except by borrowing against them) without this likely discount and that the husband should be regarded as free to sell his shares if in the event he decides he wishes to do so.  It is similar, therefore (although obviously not identical) to the necessary costs involved in realising property, such as costs of sale and CGT.  My decision in K v L [2010] 2FLR, 1467 at paragraphs 57 to 60, of which Mr Dyer has kindly reminded me, where I did not deduct CGT on a portion of certain shares held off-shore, was a decision on different facts to do with bringing them onshore at some time in the future, as to which the owner would have had a free choice not tied to meeting a court order.  In White v White [2000] 2FLR, 981 Lord Nicholls stated that such items as costs of sale and CGT should normally be deducted so as to compare like with like; and deduction is conventional in practice in litigation of this type in this Division.  To ignore such a probable share price discount would run the risk of possible unfairness to the husband, even if future events were to occur as predicated by Mr Dyer (eg a takeover or merger), which could mean he have never has to suffer any or as much discount.  Clearly this may as things turn out be beneficial to the husband and correspondingly disadvantageous to the wife; but then not everything which has to be borne in mind about the unpredictable future can be taken into account with absolute precision at the time when the particular decision has to be taken. 

72.  (iv) Other minor computational issues.  The husband's 720,000 or so LTIP shares (paragraph 34 above): the wife includes these in the schedule of assets in the sum of £1.5 million; whereas the husband excludes them entirely as being the product of his post-separation endeavours.  They were awarded to him in July 2013 after the parties' separation.  They were not actually vested in him until March 2016.  They are performance-related based on company results in the three years 2013-2016.  Mr Dyer describes them as very proximate to the marriage and as arising from the husband's employment during the marriage, not being from some new venture.  There is force in both arguments.  The shares were only available to the husband because of his employment and position at the Company built up during the marriage; but they were earned at a time when there was no longer any actual or notional marriage partnership support.  In my view, broad justice would be done if 50% of the value of these shares were excluded from the schedule of assets.

73.  The husband's 10 million-odd Joint Share Ownership Scheme shares: I have explained how these work at part C above.  It is common ground that they were bought by the husband during the subsistence of the marriage and that they are 'matrimonial property' subject to the size of the share discount.  The wife's asserted discount of 2% in the schedule produces a value of £1.06 million.  The husband's asserted discount of 40% is said to mean that they are worth nothing, as they do not get over their respective share price hurdles.  However, I see in the General Counsel's note headed 'Summary Description of 2010 Joint Share Ownership Shares' that one way in which a member of the scheme can realise his interest is for the Employee Benefit Trust to sell the desired number of shares and then distribute to the scheme member the proceeds insofar as they exceed the share price hurdle.  I doubt that this would therefore 'spook the market' and I cannot readily see why any discount is called for.  I therefore propose to leave the JSOS shares in the schedule of assets at the wife's figure of £1.06 million.


H.  RECALIBRATION OF THE ASSET SCHEDULE TO TAKE ACCOUNT OF THESE DECISIONS ON THE COMPUTATIONAL ISSUES.
74.  I now need to factor into the asset schedule the decisions I have reached on the contested issues at part G above.  I shall use as a starting point Mr Dyer's column in the schedule of assets and make the necessary adjustments to it.  I shall round off the figures for convenience.

75.  As to the husband's 14.4 million personally owned shares valued in the schedule at £31.3 million: applying a notional discount of 8% and recalculating the CGT, the adjusted value of these shares becomes about £23.1 million.  This is a reduction of £1.508 million as compared with Mr Dyer's net figure in the schedule for these shares of £24.6 million.

76.  As to the 14.2 million shares held in Trust B valued in the schedule at £30.9 million, applying a notional discount again of 8%, treating 50% of the fund as a resource to the husband and redoing the CGT, the adjusted value becomes £11.4 million.  This is a reduction of £2.907 million as compared with Mr Dyer's net figure in the schedule for these shares of £14.309 million.

77.  In addition, Mr Dyer's presentation in the schedule needs to have extracted from it the sum of £750,000 (50% of £1.5m) as per paragraph 72 above in respect of the value of the husband's LTIP shares.

78.  The total of these deductions from Mr Dyer's presentation is £5.165 million (being £1.508 million plus £2.907 million plus £750,000).  That reduces the overall total of Mr Dyer's presentation in the asset schedule, which was in the sum of £41.498 million, to £36.333 million.  Finally, I need to add back into Mr Dyer's preparation the husband's debt to Trust B of £612,000, which I have held (at the bottom of paragraph 62 above) that Mr D would be likely not to enforce if so requested.  That produces a final adjusted broad figure for the assets of £36.945 million.  Whilst I acknowledge that the methodology may have imperfections and that it may not be as precisely calculated as might be possible, I consider that this is quite sufficient for me to reach a fair decision as between the parties to this application.


I.  THE HUSBAND'S ALLEGEDLY UNMATCHED CONTRIBUTIONS.
79.  Contributions of pre-marital wealth.  The husband contributed into the first matrimonial home, about £1.1 million of savings made by him whilst working for the investment bank.  He later contributed £600,000 into the second matrimonial home, being the gift which he had received from his father before marriage.  It is generally accepted nowadays that payments like these into the matrimonial home become so much a part of the parties' shared family economy as to become or be swallowed up by 'matrimonial property'.  This is not an invariable rule and there are exceptions, for example, in FB v BS [2015] EWHC 2797 FAM, a decision of Moor J on different facts.  But I can see no reason in this case to depart from the generally accepted approach as just mentioned.

80.  Other pre-marriage savings made by the husband went on the general support of the family in the early period of the Company's  life, when he was not taking a salary so as to enable the company to get started.  I have not found it easy to work out exactly how much this was and it is bedevilled by the fact that some monies awarded to him by the investment bank in the year 1999 represented work done before the marriage and some represented work done after the marriage.  That said, the wife asserts at paragraph 6 of her statement at 1F/73 that there was pre-marriage cohabitation in New York (although she does not date it), which the husband did not challenge in either his written or oral evidence.  Based on the two schedules prepared by junior counsel headed "1999 values of the husband's pre-marital assets" I propose to take a broadly assessed figure of a further £500,000 or so net (being on top of the monies injected into the first and second matrimonial homes) as being the sum brought into the marriage by the husband which helped to support the family in the early period of the Company's  life.  By 2000 standards that was a great deal of money.  The question is whether it amounts to an unmatched contribution to the welfare of the family which should be reflected somehow in the outcome?  Normally money spent, and therefore not reflected in any surviving asset, on general living expenses would be very unlikely to qualify as a contribution of pre-marital wealth to which regard should be paid.  However, here it is said by the husband that the family would have been unable to manage or manage nearly so well financially without this resource and/or that, without it, no or less monies would have been able to be ploughed into the Company.  I consider there is force in this argument on the particular facts here.  Some reflection should be given to this sizeable unmatched contribution, even though it was a long time ago and even though the beneficial product of the contribution is not susceptible to precise monetary quantification.  I propose to take it into account in a broad way when considering the appropriate reduction from the yardstick of equality.

81.  The husband seeks to rely further on valuable benefits of some £1.1 million net at 1999 values which he had to forfeit on leaving the investment bank to set up the Company.  These, he maintains, should be updated to 2016 values and regarded as a sort of contribution to the marriage.  Mr Dyer characterises the point as "a special sacrifice" argument and calls it "entirely crass".  It strikes me as more of a plea for compensation for loss; but in any event it is, in my view, misconceived.  The husband simply had a commercial choice and he made it.  The fact that he lost out on other accrued pre-marriage rights in the process of creating wealth in the Company is no justification for a reduction in the wife's award 16 years later following the breakdown the marriage.

82.  The husband's claim to have made a special contribution by virtue of his assertion that he had the idea for the Company and exceptional skill and drive, causing it to be where it is now.  The Company turns over [£billion] per annum and has a market capital of between £1 billion and £2 billion.  There is a strong body of evidence before me from captains of industry bearing witness to the husband's huge contribution to the great success of the company.  These are to be found at bundle 1F, 39 to 49 and elsewhere in the bundle.  I will merely extract a few phrases to give the flavour of them: that he is "a business genius and a world class entrepreneur, a truly inspirational individual"; that he has "an overarching vision and the tenacity to achieve it ... a genius"; and that he has been the "driving force" behind the Company with "a combination of pure intelligence and vision".  Mr Y, one of the husband's founding partners, refers to the business as the husband's idea and describes him as "... as close to genius as I have ever come across".  The notable businessman referred to at paragraph 24 above supports this, saying that there no one else of the husband's calibre in the retail world in the UK.

83.  That said, the requirement that the special skill of a party claiming to have made a special contribution should have been utterly exceptional has been well-established and applied ever since Lambert v Lambert [2003] 1FLR, 139.  Otherwise the risk is of 'discriminating' against the homemaker.  In Miller v McFarlane [2006] 1FLR, 1186, Lord Nicholls said at paragraph 68:  "... the wholly exceptional nature of the earnings must be, to borrow a phrase more familiar in a different context, obvious and gross.  Mr Justice Bodey encapsulated it neatly when sitting as a judge of the Court of Appeal in Lambert.  He described the characteristics or circumstances which would bring about a departure from equality: '... those characteristics or circumstances clearly have to be of a wholly exceptional nature such that it would very obviously be inconsistent with the objective of achieving fairness (ie it would create an unfair outcome) for them to be ignored'."  Mr Justice Holman refined this at paragraphs 124-144 of his judgment in Gray v Work [2015] EWHC, 834, although I understand that the Court of Appeal has given the husband leave to appeal on the issue of special contribution, with a hearing fixed for February 2017.  Both parties want the decision in the instant case as soon as possible and I have not been asked to stand it over to await the outcome of that appeal.

84.  Mr Dyer relies on information in the public domain about companies in the United States and indeed in this country which by the 1990s were actively in the same business.  He produces considerable documentary evidence which quite clearly establishes this.  The husband explained in his evidence how his idea, amongst many other ideas of his, had been to come up with [a different way of operating]; together with huge innovations as to the Company's technology and logistics.  He is now in the process of seeking to reach global agreements for the licensing of the Company's valuable intellectual property, thereby expanding the Company's  range of activity much further, if all goes well.  I do not need to go into all the various details which appear extensively in the husband's written evidence and in the transcripts of his oral evidence.

85.  I have considered all the material on this point with care.  No-one would detract from the husband's huge achievement in respect of the Company and anyone would pay tribute to his business acumen, vision, drive, leadership, energy, problem solving, tenacity, guts, dynamism and downright hard work.  He was recently awarded the OBE for services to the economy.  However, I am persuaded in the end that what the husband did with great efficiency was to see and seize the opportunity to adapt and improve what was already happening less efficiently and less successfully before the Company was started.  He picked up the ball and ran with it.  In doing so, he had two co-founders and, although the thrust of the evidence is that he was the driving force, he does accept that Mr Y was a very important player on the public relations front.  There was not the so-called spark of innovative genius required to move up into the small and select band of businessmen like Mr Sorrell, Mr Charman or Mr Cooper-Hohn, who have established cases of special contributions.  Their created fortunes have, incidentally, been far, far greater than the net wealth created in this case, as set out at part H above.  Accordingly I accept Mr Dyer's submissions that this is not a case where a special contribution has been established as a factor justifying departure from the yardstick of equality.

86.  The husband's case on post-separation endeavour.  I have touched on this in respect of the date of the breakdown of the marriage.  At that time, namely the end of 2012, the evidence is clear that the Company's future was in the balance.  The share price was down and the Company stock was the most 'shorted' in the FTSE, with the greatest number of 'sell' recommendations.  The husband had to work with great skill and very hard along with others to turn its fortunes round.  He was successful in doing so, particularly amongst other things by the Premium Share offer, which he had to push through against opposition; by persuading [the notable businessman] to join the board; and by the all-important deal with [another company].  Mr Dyer submits that this was all part of the continuum of the husband's work for the Company.  It was 'just what chief executives do'.  To my mind, however, that is not the point.  The point of this aspect of the case is that the crucial work performed by the husband then and since that time was and has been work carried out when the marital partnership no longer existed.  Insofar as there was support from the wife within that relationship (which the husband says there was not) it had, on any view, come to an end at about the time when the Company was looking at potential failure.  I take the view that the husband's post-separation work and endeavours do, therefore, amount to a significant unmatched contribution to the welfare of the family.  But for that contribution the Company may have gone under and the standard of living of the children have been compromised.  I accept arguments exist that he was 'trading with' the wife's unascertained financial share in the assets, but I find in the circumstances of this case that I can and should take the husband's argument into account in assessing the degree of reduction from equality.  So, I shall take this aspect of the husband's contribution into account in a broad way, since it is not capable of computation with any precision.

87.  The husband's case on domestic and child care contributions.  I accept that the husband has played a substantial role since the end of 2012 in the care of the children, with help from staff necessarily, and will continue to do so for the foreseeable future.  I will come back in a moment to the factual issues between the parties about the period 2003 to 2012.  The question is as to whether it would be fair for these contributions by the husband to be taken into account in giving him a greater share of the kitty.  It must be noted that he is not alleging the wife's 'conduct' and that he accepts her previous alcoholism as having been an illness.  It is clear from seeing and hearing her that she has worked hard in respect of this alcohol problem and has made a good recovery since January 2013.  She would now be seeing the children (perhaps even caring for them again) but for the damage to their relationship which her alcohol-induced behaviours caused and but for the acrimonious parental relationship which still pertains.  These diminished contributions relating to the children are not, therefore, matters of fault on the wife's behalf.  This is even though they have resulted in greater contributions by the husband, which he is incidentally pleased and proud to be making.  In such circumstances, these contributions by him are not contributions which it would be unfair to disregard or (to put it more simply) they are contributions which it is fair to disregard, given the wife's inability to make any equivalent contributions of her own unless and until the children come round to seeing her again.

88.  In these circumstances, since the same thinking applies throughout the marriage when the wife was suffering with alcoholism, it is strictly unnecessary to decide factual disputes as to whether and to what extent she was making motherly and domestic contributions from 2003 onward.  However, I need to state my views shortly on the factual disputes, remembering the necessary caution about the wife's credibility as discussed at part E above.  Having seen and heard both parties, I am satisfied that during the marriage the wife played as full a role as she could as mother and homemaker, except for when disabled through alcohol misuse.  Whenever she spoke of the children whom she bore, it was with obvious maternal love and concern for them and with a sense of pain that she is currently unable to see them.  Her evidence had a ring of truth in respect of her cooking for them, helping them, arranging their doctors' and dentists' appointments, taking them for holidays when the husband was working, and so on.  It is clear from the independent evidence referred to above about the extent of the husband's work in the business that there were times when he was working all night away from home.  I accept the wife's evidence that he was mostly not home until after the children had gone to bed.  She clearly stood by him in the early days of the Company, which he himself describes in his statement at 1/F/3 as "a leap into the unknown".  I accept her evidence as to how she helped [the particular child] after his accident with table tennis, crazy golf and just sitting with him for hours in circumstances when his accident made caring for him very difficult.  I am not shaken from this view by the content of the wife's diary in 2008, referred to above, written when she was full of self-loathing and self-reproach.  I further accept her evidence that she did not drink during the morning except on rare occasions.

89.  All in all, therefore, I reject the suggestion that the husband's contributions throughout the marriage in respect of domestic and child care activity were such as to amount to an unmatched contribution which should be taken into account as regards the outcome of this financial hearing.  I find overall that the wife made as good a contribution to the marriage as she could, notwithstanding the sad outcome for her (and in the long-term for the children) arising from the detrimental relationship consequences of her alcohol problems and her destructive consequential behaviours.  This conclusion is distinct from and not intended to detract from my finding about the husband's unmatched contributions in transforming the company's fortunes after the marriage had come to an end, as set out at part I(iii) above.


J.  DISCUSSION AND CONCLUSION.
90.  Whilst accepting that the contributions were unequal in the ways indicated above, I cannot see they were so unequal or of such a nature as to make it fair (as submitted for by the husband) to treat the wife's needs as determinative of the outcome, leaving the rest of the wealth in his hands.  I therefore propose to adopt a sharing approach to the case with a broadly assessed discount from the yardstick of equal sharing, but I shall thereafter check whether such an approach suffices to meet the wife's reasonable needs.  Any discount from that yardstick of equality runs the risk of being called 'arbitrary'; but as Lord Justice Wilson remarked in Jones v Jones, [2011] 1FLR, 1723, this is not the case.  It is the exercise of a discretion based on a full consideration of the evidence with a view to achieving the court's target of a fair outcome.  It is the product of an application of all the factors within S25 to the overall circumstances of the particular case.  It is, in reality, the only possible approach here, once a needs-based approach is rejected, given that the product of the husband's unmatched contributions from his pre-marital wealth and from his post-separation endeavours are incapable of precise arithmetical calculation.  The wife's own case recognises this by her acceptance that a fair outcome would be for her to receive 37.5% of the kitty, although she had in mind a rather larger kitty.

91.  At part H above I have reworked the asset schedule to take account of my decisions on the computational issues between the parties, reaching a working figure for the kitty of £36.945 million.  What percentage of this, being a percentage less than 50%, should be awarded to the wife to reflect the husband's contribution arguments at part I above?  I consider that the reduction down to 37.5% proposed by Mr Dyer and Mr Bentham is well-judged and should lead to a fair outcome as between the parties, subject only to the cross-check of the wife's needs.  The proportion of the kitty as found, represented by 37.5% is: £13.854 million.

92.  Is that sum of £13.854 million sufficient to satisfy the wife's reasonable needs?  It is trite law that the Applicant will receive the higher of the possible outcomes produced by the sharing approach and the needs approach: Charman v Charman number 4 [2007] 1FLR, 1246 at paragraph 73, per Sir Mark Potter.  The wife's needs schedule was updated at the beginning of the hearing and now stands at £21.8 million.  This is made up in round figures of £8.8 million for a house in London, £3.5 million for a property abroad, £512,000 for chattels, £2 million to meet liabilities and £6.8 million as a 'Duxbury' fund.  That Duxbury fund is calculated to provide £266,000 per annum net for life for the wife with a 20% income stepdown when she reaches the age of 65.  If this needs Schedule is a reasonable representation of the wife's needs, then it should replace the wife's sharing claim (as it is greater).  It would mean that, having paid that sum of £21.8 million to meet the wife's needs, the husband would be left with £15.1 million from the kitty.  In all the circumstances of this case that would clearly not be a fair outcome.

93.  I have heard extensive contentious evidence on most aspects of the wife's needs and I have been presented with the usual array of competing comparables and schedules.  I have read and re-read this material, considering it with care.  Although I accept that the husband is in the former matrimonial home, worth £11.7 million gross, which might seem compelling as indicative of the standard of living, he has huge borrowings on it and its equity is only £2.7 million.  (The same may be said for the chalet in France.)  He needs a large property with accommodation for staff because he is responsible for the four children of the family.  Looking at the wife's needs for accommodation, it is clear that the husband's properties in the schedule annexed to Mr Bishop's opening presentation would meet most of her requirements.  The cost of those properties is averagely around £4 million, some of them being in areas of London where the wife originally said she wanted to be.  Her preference for Primrose Hill appears to have occurred very much more recently and puts the price of her proposed properties up to averagely around the £8 million relied on in her needs schedule.  However, there is one property on her list in Primrose Hill at a price of £5 million.  I have reviewed the particulars of various of these competing properties, noting that all the prices are, of course, asking prices.  Having done so, I consider that a reasonable price for accommodation would be £6 million, to include Stamp Duty Land Tax and furnishings.  The wife could purchase mortgage-free or she could obtain a mortgage if she wanted to go more up-market.

94.  The wife also needs to clear her debts of £2 million.  This means that having done so and having purchased a London property, she would have accounted for some £8 million of her award.  That would leave the wife with £5.854 million out of £13.854 million to do with as she wished; for example, to purchase or put towards a foreign property for herself and to provide for a Duxbury type fund for her future income.  It is entirely up to her how to organise her finances and decide what she wants to do once she knows how much she has available.  If she went for a foreign property it could be at, say, £1.85 million: or as an alternative, she could buy somewhere more expensive with a loan and rent it out so that it pays its way, like the husband does with the French chalet.  Taking for the sake of argument £1.85 million for a holiday home abroad, she would be left with £4 million to buy a decent car, pay moving expenses (etc) and then be left with, say £3.8 million to invest for income.

95.  As I have said, the wife's claimed need for income is put by her at £266,000 per annum.  I have considered the competing schedules and documents regarding her budget.  The parties are some £130,000 per annum apart in respect of it, because the husband proposes about £138,000 pounds per annum.  Looking at the helpful composite schedule prepared by Mr Bentham, it may be that the husband's suggested figures have been unduly low in some respects.  Equally, however, I consider that the wife is aspiring too highly in other respects, for example £120,000 per annum under the combined headings 'personal expenses' and 'recreational'.  The husband's own budget at 1/E/68 is superficially and predictably high, but actually relatively modest if one strips out all the expenses attributable to the four children, together with the very substantial annual sum for the domestic staff whom he needs to help with the children; and when one bears in mind that substantial loan repayments are necessary if the children are to have the benefit of continuing to live in the former matrimonial home.  His income is difficult to state with precision or certainty.  In a good year he says he would hope to gross £1 million but in a less good year he may achieve something more in the region of £570,000 gross. 

96.  I have not overlooked the husband's extravagances mentioned in the evidence and relied on by the wife, particularly the Bar Mitzvahs and Bat Mitzvah for the four children, which were extremely expensive, somewhere not far short of £500,000, a jacket for the wife's 40th birthday at a cost of some £18,000 and his purchase of his McLaren car for £190,000 odd.  In addition, I take the wife's point that, following a fire at the matrimonial home, he is currently proposing to extend the property as part of the repairs, which will require him to find over £1 million above the amount which he will recover from the fire insurance.  I recognise that of course these are expensive luxuries; but they have to be seen in the light of his very high borrowings which he services (and will have to continue to service after this order) by way of his own hard work, doubling up as the children's breadwinner and, as things stand, as their sole parent.

97.  Taking everything into account, I consider that the husband's suggested figure for the wife's income needs is nearer the mark than the wife's proposal.  I find that a budget of £150,000 a year net would be reasonable.  Mr Bishop says that she could also reasonably be expected to obtain some sort of work.  The wife is a personable lady of 45, who worked successfully in the world of fashion, admittedly for a friend, for a period of time up to the summer of 2015.  She was then earning at the rate of £11,000 per annum net for a three-day week.  Her job was as style director, which as explained by her involved styling and controlling photo shoots for market campaigns, choosing photographers, choosing art directors, models and make-up artists.  The job included designing and buying.  It involved her in 'major decisions' relating to fashion collections.  She said in her statement that she was happy to be working and productive, stating that she had been successful in fashion and beauty PR before the marriage.  In 2015 she described her working as aiding her recovery.  She told me she did not think she could get paid work now, but that she would like to do some charitable work.  I accept that the wife would not be able to walk straight into employment, but I am sympathetic to the husband's case that there is probably something which she could find within the world of fashion or elsewhere which she would enjoy and which would augment her investment income should she wish to do so.  I would not particularly disagree with Mr Bishop's suggestion of perhaps £15,000 to £20,000 per annum gross after a period of time for her to get her act together following this hearing.  However, I stress that her financial circumstances will not be such that she has to go out to work for a salary if she does not want to do so.

98.  The sum of £3.8 million predicated above as a possible fund for income, depending on how the wife chooses to deal with her award, would produce the suggested income of around £150,000 per annum net for her life without any step down when she gets older.  This is not a bespoke estimation, merely being taken from the 2016/2017 Duxbury tables, but it suffices for this purpose.

99.  My conclusion following this broad survey of the wife's needs is that they would be reasonably met in all the circumstances of this case from the sharing award which she primarily seeks.  The outcome will therefore be that she is to receive 37.5% of the kitty as calculated above, equating to the sum of £13.854 million.  Standing back and doing my best to see the wood for the trees, I regard that as a fair outcome.  I turn finally to consider how this should be structured and paid.


K.  STRUCTURE AND TIMING.
100.  The husband has throughout been strongly against any transfer of shares in the Company in specie to the wife in part satisfaction of her award.  He regards her as still angry and bitter, as to which he prays in aid the "trolling" episode, and he does not want her as a shareholder.  The wife has been described by her solicitors in a letter dated 27th June 2016 as 'neutral about the structure of her award', although Mr Dyer has explored in evidence the merits of a transfer of shares as regards the question of discount.  He submitted in his final speech that there would be no reason why the wife should be expected to wait 18 months for a second instalment of the lump sum, as per the husband's offer, when she is quite prepared to accept a so-called Wells v Wells sharing outcome comprising a transfer of some shares.

101.  By contrast, in his final speech, Mr Bishop told me:  "... put bluntly, she needs cash: he needs the shares", and he supported this proposition by pointing to the fact that the wife's open offer contains a 'needs' long-stop baseline (if I may be forgiven the mixed metaphor) expressed as a lump sum.  He explained clearly at page 71 of the daily transcripts for 6th July 2016 why precisely it is that the husband strongly opposes any transfer of shares.

102.  Clearly there is no way of knowing whether the wife would do better or worse with shares in specie.  My view is that a lump sum award is generally the tidier option and it takes the risk out of it for the wife in circumstances where volatile shares could go up or down.  She was, after all, 'neutral' only a month ago.  I do accept, however, that she should not be expected to wait too long.  The husband's ability to realise shares is not unfettered, by reason of market trading regulations.  However he has a number of strings to his bow, particularly by way of commercial borrowing of an estimated £11 million (albeit in two tranches, the second being after 12 to 18 months) and he can, and I imagine will, turn to the trusts for an advancement or loan.  Mr D as trustee is not so circumscribed as the husband is regarding share realisations or other share transactions.

103.  Therefore, I propose to order a straight lump sum payment in the wife's favour of £13.854 million to be paid, I suggest, as to £7 million by 26th October 2016, which is three months away, and as to the balance of £6.854 million, by I suggest 20th January 2017, being in six months' time.  In the interim the existing arrangements should continue with such sensible and necessary adjustments as I trust the parties will be able to agree when the first instalment has been paid.  In case there are difficulties in raising cash, I propose that the wife's application for a transfer of property order in relation to shares be stood over and I record that she also has in reserve her application for a variation of trust order.

104.  I recognise the risk that the share price may have continued to rise between now and the making of the payments.  If it does, it should be seen as the husband's good fortune and I earnestly hope that the wife will (as, having seen her, I think she will) accept this in good heart, not letting it upset her.  She has the certainty and security of cash, in circumstances where the share price could go up or down.  A downward movement would, of course, disadvantage the husband and he too would have to accept that as being the way things can happen.  Last, and for the avoidance of doubt, this order is on the basis that it encompasses all arguments about costs between the parties, save any arguments there may be (of which I am unaware) in respect of the child arrangement or other proceedings.  The order is intended to take account of any costs claim the husband may have had in connection with his costs, put at some £50,000-odd, caused by the wife's 'trolling" and, for that matter, any claim she might have had in mind the other way.  In this way, it is my hope that the parties will be able to draw a line in the sand as regard their financial disagreements.