username

password

image of 4 Paper Buildings logoAlpha BiolabsCoram ChambersDNA Legal1 Garden CourtGarden Courtsite by Zehuti

Home > Judgments

Bloom v Bloom [2018] EWFC B10

Third judgment of Mr Recorder Cusworth QC in these proceedings following findings of serious fraud made against the husband. The wife successfully applied for (1) publication of the previous judgments in un-anonymised form and (2) forwarding of the judgments to relevant authorities.

1. Publication of un-anonymised judgment

While rare, un-anonymised publication was not governed by a test of exceptionality but a balancing exercise of competing considerations [para. 4]. In particular, the public interest in financial propriety and prosecution of misconduct fell to be weighed against the interest of encouraging full and frank disclosure within proceedings (S v S (Judgment in Chambers: Disclosure) [1997] 2 FLR 774) [para. 5].

Militating in favour of publication were the following factors:

• The husband's failure to comply with the duty of full and frank disclosure (and therefore to avail himself of the allied implied undertaking of confidentiality); in fact he had 'actively undermined and ignored' this duty [para. 13]. Had he complied, he may have argued more convincingly against publication [paras. 9 & 18].

• The fact that the husband's limited admissions in evidence added little or nothing to the evidential picture which had already been built up by the wife; he could not therefore claim any protection against self-incrimination [para. 19].

• The gravity of the husband's conduct, consisting of 'multiple calculated criminal frauds', as reported in the earlier judgments [para. 10].

• The involvement of innocent third parties, with the consequence that the fraud was less readily remedied within the current proceedings (following Y v Z (Disclosure to Police and FCA: publicity) [2014] EWHC (650 Fam); 2 FLR 1311) [para. 11].

• The public nature of much of the evidence against the husband; as such the 'pieces of the puzzle' were largely in the public domain and there was little prospect of the husband's limited disclosure being used for a collateral purpose [paras. 20-21].

• Publication would demonstrate by example that parties cannot easily hide the truth within financial remedy proceedings (following Associated Newspapers v Bannatyne & ors [2015] EWHC 3467 Ch) [para. 22]. Any concern that publication would in fact deter litigants from full disclosure, for fear of wider public exposure, had now been rejected in multiple authorities [para. 15].

2. Dissemination to investigating/regulatory bodies

The judge acknowledged that 'it is only when as a result of the performance of its functions a court is satisfied that an issue arises as to whether material should be disclosed in the overall public interest that it needs to consider, or should consider, that question' (A v A; B v B [2000] 1 FLR 701) [para. 24]. The judge was so satisfied. A v A; B v B further clarified that all the circumstances of the case should be taken into account, with the main factors again being the competing public interests [para. 26].

The husband's conduct in this case was 'serious and damaging' within the context of financial crimes in general, and the frauds were 'calculated, grave and repeated'; he had shown no remorse or regret [para. 29]. A particular aggravating factor was that the husband actively sought to use the court as a tool for the extraction of significant sums from the wife and her family, based upon his fundamentally untrue presentation of his financial affairs [para. 30].

Ultimately it was 'plainly in the public interest that all potential future investors, business associates, pension fund trustees, company shareholders, potential partners and other members of the public – species of all of which categories have already variously suffered at his hands – are protected from his schemes insofar as possible' [para. 31].

The judgments would therefore be published, un-anonymised, and forwarded to the authorities. The wife would further be permitted, if necessary, to disclose the judgments and any other documents for the purpose of defending herself from any unwitting implication in the misconduct of the husband [paras. 31-33].

Summary by Iain Large, barrister, barrister, St John's Chambers,  Bristol.
____________________

 

Case No: ZC15D04042

IN THE FAMILY COURT
SITTING IN THE CENTRAL FAMILY COURT


Central Family Court
First Avenue House, 42-49 High Holborn
London WC1 6NP

Date: 02/02/2018


Before:

MR RECORDER CUSWORTH QC
- - - - - - - - - - - - - - - - - - - - -

Between:

BELA BLOOM
 Applicant
- and - 
BARON ALEX BLOOM Respondent
- and - 
IRINA KONTIPAYLOVA Intervenor
- - - - - - - - - - - - - - - - - - - - -

HARRY OLIVER (instructed by FARRER & Co) for the Applicant
The Respondent appeared in person
ROBERT AVIS
(instructed by CHARLES RUSSELL SPEECHLYS) for the Intervenor

Hearing date: 4th December 2017
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

MR RECORDER CUSWORTH QC
This judgment was handed down in private on 24th January 2018. It consists of 33 paragraphs and has been signed and dated by the judge.

The judge hereby gives leave for it to be reported.

1. This is the third judgment that I have written in these proceedings, and should be read in conjunction with the two earlier judgments dated 2nd May 2017, and 4th December 2017, where I have set out in some detail the factual background to the parties' marriage, their subsequent divorce, the involvement of the wife's parents, and of the truth about the husband's business practices as they became apparent during the course of the substantive hearing between 2nd and 6th October 2017. I shall not repeat those matters here, but they form the factual basis upon which I have built what follows.

2. This further judgment is necessary in circumstances where the wife has sought permission to rely on the contents of my earlier judgments in certain circumstances, and that both earlier judgments should be published, unanonymised; as well as seeking a determination from the court about whether the contents of those judgments should be forwarded to the relevant public authorities. She has been ably represented in this application by Mr Oliver of counsel. The Intervenor, represented by Mr Avis of Counsel, does not oppose the application. The husband, who has appeared in person, resists the application. Because he is not a lawyer, I have carefully considered the legal basis for the case made out by the wife, and set out fully in this judgment the authorities underlying the decision that I have made, which I communicated to the parties after hearing argument on 4th December 2017.

3. Anonymity & Publication The status of the judgment is set out in FPR 2010, as amended by the Family Procedure (Amendment) Rules 2012. Rule 29.12 states

"29.12(1) Except as provided by this rule or by any other rule or Practice Direction, no document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document shall be taken by, or issued to, any person without such permission.'

4. Mr Oliver for the wife accepts that the court has a discretion as to whether or not to permit the disclosure of the judgment; and as to the degree of anonymization, if any; that the discretion to publish un-anonymised, or to send to investigating authorities, is rarely exercised, and that cases where it has been exercised can be properly described as exceptional. The test he says, and I accept, is a balancing exercise of competing considerations to be weighed on the facts of each individual case, and not a test of "exceptionality". 

5. The position was set out by Wilson J in S v S (Judgment in Chambers: Disclosure) [1997] 2 FLR 774:

Under both r 10.15(6) and r 10.20(3) I have a discretion. In the light of the authorities I propose to exercise it by reference to the following considerations.

It is greatly in the public interest that all tax due should be paid and that in serious cases, pour encourager les autres, evaders of tax should be convicted and sentenced. It feels unseemly that a judge to whose notice tax evasion is brought should turn a blind eye to it by not causing it to be reported to the Revenue. In one sense that would almost cheapen the law.

On the other hand it is greatly in the public interest that in proceedings for ancillary relief the parties should make full and frank disclosure of their resources and thus often of aspects of their financial history. Were it to be understood that candour would be likely to lead – in all but the very rare case – to exposure of under-declarations to the Revenue, the pressure wrongfully to dissemble within the proceedings might be irresistible to a far bigger congregation of litigants than is typified by the husband in these proceedings, who of course resolved not to be candid in any event. False presentations by respondents in ancillary proceedings have two repercussions, both seriously contrary to the public interest:

(a) either the judge remains deceived, in which the case the award is likely to be inaptly low, or he perceives the deception, whereupon he may draw necessarily broad inferences of hidden wealth which, depending on their scale, could make the award inaptly high or indeed leave it still inaptly low; and

(b) applicants are seldom minded to compromise their claims on the basis of presentations which they believe to be materially false and their stance, if justified by the court's findings, will often be upheld in relation to costs. Yet the family justice system depends upon the compromise of all but a few applications for ancillary relief.

Between these two opposing public interests must the individual circumstances be weighed.

6. In Allen v Clibbery [2002] EWCA Civ 45 the Court of Appeal explained the basic premise which underlies the confidentiality of documents disclosed in Financial Remedy proceedings. The President, Dame Elizabeth Butler-Sloss, said:

72. In [S v S (above) and A v A; B v B (below)], the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of that information by means of the implied undertaking. In order to achieve compliance with disclosure by the party under the obligation to do so, the party seeking the disclosure is required by the court only to use that information for the purposes of the proceedings. It is the protection provided by the court in cases of compulsion. Ancillary relief applications are appropriately heard in private... The public may not, without leave of the court, hear the evidence given in these applications. It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking, before, during and after the proceedings are completed….

73. The implied undertaking extends… to voluntary disclosure in ancillary relief proceedings, to the information contained in the documents and to affidavits and statements of truth and witness statements. All such information is required for the full and frank exchange of financial information and all the relevant circumstances which may be necessary to enable the court to know, in order to come to a fair conclusion in accordance with the exercise of its statutory jurisdiction...

7. In HMRC v Charman & Charman [2012] 2 FLR 1119 Coleridge J referred to the Court of Appeal's above judgement in Allen v Clibbery (above), and  paraphrased the position overall thus at [21]:

As a general rule documents and other evidence produced in ancillary relief proceedings (now called financial remedy proceedings) are not disclosable to third parties outside the proceedings save that exceptionally and rarely and for very good reason they can be disclosed with the leave of the court. The fact that the evidence may be relevant or useful is not by itself a good enough reason to undermine the rule.

8. Exercising its discretion on the facts of that case, the court declined HMRC's application for a copy of documents emanating from the financial remedy proceedings. In so doing Coleridge J said:

[23] No one would seriously argue with the proposition that it is in the public interest for the right amount of tax to be paid by taxpayers. Furthermore, there is no doubt that the documents sought in this case would be relevant to the proceedings before the First-tier Tribunal Tax Chamber and, for obvious reasons, might well be of assistance to them. But that is not the test I apply.

[24]   Having considered and balanced the competing public interests here, I have no hesitation in finding that there is nothing rare or exceptional about this case which takes it outside the general rule. The husband is entitled to say, with indignation, that he complied fully with the rules of disclosure and the confidentiality/privilege attached to the documents and other evidence produced thereby should not be breached. HMRC have advanced no discernible compelling reason why the general rule should be relaxed in this case.

[25]   I am fortified in this view by the fact that: (a)There is no suggestion that the husband is guilty of tax evasion or criminal conduct in relation to his tax affairs. This is a routine tax assessment; (b)The burden of proof is anyway on the husband in the tax appeal. He must prove his case; (c)The judgments at first instance and on appeal are already available to HMRC.

9. So, there will be husbands who can say that they have complied with their disclosure obligations within financial proceedings, and as a result of that compliance should not be put at risk that the very documents which they have been obliged to disclose to the Financial Remedies Court should now be made public, or sent on to other public authorities. As will be clear from my earlier judgments, however, this is not a husband who can conceivably use his compliance with the rules of disclosure as a shield to this application. And whilst there is no general rule that financial papers evidencing some malfeasance will always be sent on, every case has to be taken on its own merits. This was made clear by Charles J. in A v A; B v B [2000] 1 FLR 701 where he said (obiter) at 737E that

'… the court does not regularly send papers to the prosecuting authorities when a litigant admits that he has lied or is found to have lied to the court. … It seems to me that, with a view to promoting the public interest in a civil court having all relevant material before it, a general practice can be adopted pursuant to which the court does not report the matter to the prosecuting authorities, particularly if the person involved makes full and frank disclosure and apology. There will naturally be exceptions having regard to the nature and circumstances of the case.'

10. Each case is fact specific. This is not a tax case. None of the matters that "fortified" the judge's view against disclosure to the authorities in Charman are applicable here. Here the court is less concerned with tax irregularities than with what Mr Oliver accurately describes as 'multiple calculated criminal frauds'. The gravity of the conduct found in my earlier judgments is an important factor in favour of un-anonymised publication. I also have to bear in mind the fact that these frauds affected innocent third-parties, and were not just a matter between the parties, or between the husband and HMRC.

11. What those circumstances might be where publicity and/or disclosure may be appropriate, was further considered by Bodey J in Y v Z (Disclosure to Police and FCA: publicity) [2014] EWHC 650 (Fam); 2 FLR 1311 where he said this about A v A; B v B at [23]:

"That case was specifically about disclosure to the Inland Revenue of tax evasion, as to which the public interest considerations are different from where the wrongdoing and 'loss' can be reasonably enough remedied within the family proceedings themselves… As Charles J pointed out however that pragmatic approach, which probably accords with the general experience of most who practise in this area, is much less readily applicable where the exposed criminality is 'external' to the case, such as tax evasion or defalcation of a third party's money. In such circumstances as those, he said at 739E, that he generally favoured disclosure to the appropriate authorities. There is thus a discernible and reasonably logical distinction between: (i) those non-disclosures and lies which by their nature can be reasonably well remedied within the family proceedings, which may include by restorative financial orders and/or costs orders, or even by committal or a fine for contempt of court (subject to procedural formalities and to proof to the criminal standard); and (ii) those which by their nature cannot be. In the latter situation, disclosure to outside agencies may generally be seen as more likely in practice than in the former, although no sanctions can ever be ruled out in either case."

12. What Charles J had said in the former case at 739E was this:

'…whilst recognizing the point I have made earlier that all the circumstances of each case should be taken into account, and thus the danger of generalisations, I would go further and state that when a court is satisfied that there has been illegal or unlawful conduct and it has no power similar to that of the criminal court, or the relevant public authority, to deal with such conduct it should generally report the relevant material to the relevant public authority.'

13. The current case is not one in which the husband has properly availed himself of the duty of full and frank disclosure and its allied protection of the implied undertaking. Rather he has actively undermined and ignored that duty by continued dishonesty throughout the proceedings. This case is closer on its facts to that of Lykiardopulo v Lykiardopulo [2011] 1 FLR 1427 where Stanley Burnton LJ said:

76. Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

77. Mr Balcombe submitted that the protection of this confidence is the result of a pact between the litigant and the court. That may be a helpful description of the principle. But if so, the Husband and the Interested Party did not keep to their part of the pact. In matrimonial ancillary proceedings, the obligation of the parties is to disclose the facts regarding their finances. In this case, what was put forward by the Husband and the Interested Party was, in substance, not the facts but fiction…

78. …

79. I start from the premise that, as Article 6 requires, justice should be seen to be done, and in general the judgment of the court should be public unless there is good reason for it not to be published or for the identities of the parties not to be disclosed. Litigants have a right to respect for their private life under Article 8, but that right is qualified and in many, indeed most, cases the interests of justice, and of justice being seen to be done, require facts that would otherwise remain private to be made public in a judgment. The general practice of the Family Division is for judgments in ancillary relief cases not to be published, or if published to be anonymised. That is done out of respect for the private life of the litigants and in order to promote full and frank disclosure, and because the information in question has been provided under compulsion.

80. However, different considerations apply where the information and documents provided by a litigant are false. That litigant has no entitlement to confidentiality in respect of that information or those documents. They do not evidence his private life. In general, there is no good reason why his conduct should not be public. In such a case, the court may order publication of a judgment without anonymisation, not as a sanction or punishment, but because there is no right to confidentiality in relation to that conduct.

14. So, there is no inherent confidence in dishonesty, but that does not mean that there is no discretion in the court even if dishonesty is found. As Bodey J made clear in Y v Z (above), just after citing part of the above passage, at [25]:

Those judgments in the Court of Appeal may be seen to presage the more robust approach to publicity (without anonymisation, if there is good reason for the parties identities to be known) repeatedly encouraged by Sir James Munby P, particularly in Re J (a child contra mundum injunction) 2013 EWHC 2694 (Fam) and in his Guidance on Transparency in the Family Courts at 2014 Fam. Law 222. I do not, however, read the Judgments in Lykiardopulo in the one-dimensional way argued for by the mother, namely that lying equals loss of confidentiality. There is still the balance to be struck which the authorities show to be an essential part of making the necessary decision. Stanley Burnton LJ's reference to 'no entitlement to confidentiality' in my view clearly means no absolute entitlement, since he went on in the next two sentences to talk about the fact that in general there may be a public non-anonymised judgment and that the court may order such a judgment, although (significantly) 'not as a punishment'.

15. The concern that publication without anonymization could lead to future litigants being deterred from disclosing for fear of wider public exposure, and that that in turn might undermine the giving of full and frank disclosure generally, has now been rejected by a number of judges, including Charles J in A v A; B v B and Mostyn J in W v W (Ancillary Relief: Non-Disclosure) [2004] 1 FLR 494. At [130] in that case, Mostyn J expressly endorsed the former's view, and he said at [124]:

"While it is likely that there will always be litigants in the Division who fail to comply with the obligation of full and frank disclosure I believe that the prospect of public condemnation in the event that the default is exposed will act as a deterrent and so reduce the incidence of such misconduct".

16. The same judge went further in Veluppillai v Velluppillai [2016] 2 FLR 681 and also made a wider public policy point at the same time when he said:

[17] In my decisions of L v L (Ancilliary Relief Proceedings: Anonymity) [2015] EWHC 2621 (Fam), [2016] 1 WLR 1259 and Appleton and Gallagher v News Group Newspapers Ltd and PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, I explained that the right to privacy in the hearing of an ancillary relief application would be forfeited on proof of iniquity. There is no doubt the husband's misconduct has been at the extreme end of the spectrum. It is in the public interest for his conduct to be exposed. The public should be aware of the scale of problems that courts administering justice and implementing the rule of law have to face at the hands of unrepresented and malevolent litigants determined to do everything they can to destroy the process.

17. I agree with him.

18. I also have to remember that the husband here is being exposed for what he did not disclose rather than what he did disclose. But, whilst omission may be taken to be a less serious sin than fraudulent commission (ie the forgery of documents for the direct purpose of the proceedings) in some cases, the husband here was, by his omissions, covering up other fraudulent commissions in his business dealings. Had he provided full and frank disclosure, and made a clean breast of matters, it may have been easier for him to argue against publication at the end of this process. As he did not comply with his duty, the balance falls clearly against him.

19. It is also a relevant factor that those limited admissions which the husband was constrained to make in evidence added little or nothing to the evidential picture which had already been built up, by evidence which the wife had and he had not produced of his persistent fraudulent conduct. It is that evidence compiled by the wife's advisors for the purposes of these proceedings, rather than the fact of his acknowledgment in places of the inevitable conclusions to be drawn from it, which makes up the bulk of the factual background contained in my earlier judgments. To that extent the protection available to the Defendant in Regina v K [2009] EWCA Crim 1640 will not avail the husband here. In that case Moore-Bick LJ made clear the distinction between admissions, upon which any later prosecution must rely, and evidence obtained subsequently, consequent upon those admissions. Where the evidence has been obtained independently, and well in advance of any such admission, the position must be stronger still. The judge said:

42. A wilful refusal to comply with an order for disclosure will amount to a contempt of court which may attract the not insignificant sanction of imprisonment. The nature of the compulsion that may be applied to enforce compliance with the obligation to disclose information that is of an incriminating nature is therefore severe. The social purpose for which the Crown seeks to adduce the evidence in criminal proceedings is the suppression of tax evasion. No doubt the protection of the public revenue is an important social objective, but the question is whether the admission of evidence obtained from the accused under threat of imprisonment is a reasonable and proportionate response to that social need. In our view it is not. This is an unusual case in as much as the Crown accepts that without the admissions made by K it has insufficient evidence to maintain a case against him. In many cases information obtained by way of disclosure in ancillary relief proceedings will provide leads that enable the Crown to obtain evidence from other sources that is sufficient to support a prosecution and in such cases there will be no need to rely on evidence obtained from the accused himself. That has not been possible in this case, but even so, we do not think that the need to punish and deter tax evasion is sufficient to justify such an infringement of the right of the accused not to incriminate himself.

20. Another factor which propels me towards an order for publication in this case is the fact that much of the information gathered and relied upon by the wife came from public sources. Specifically, Mr Oliver points me to the following (accurate) list:

a. 'The links to Udachi Ltd all come from Companies House records

b. The details of each individual transaction come from

i. HMLR records and registers

ii. Documents required by ILEX to be published and other public statements of Etaireia

iii. Companies house documents

iv. Public auction records

v. Twitter and Facebook posts'

21. Where much of the information upon which findings ultimately had to be made was publicly available (but only unearthed after significant detective work on the wife's behalf to follow the available leads and piece together an acceptably coherent story), it is more straightforward for this court to find it appropriate to publish and disseminate the judgment: for two reasons. Firstly, the pieces of the puzzle are largely publicly available anyway; and secondly, the fact there is little question of actual disclosure produced by the husband in this case under a compulsion (of which there has been very little) being used by anyone for a collateral purpose. As Mr Oliver puts it: 'The true message that publication and dissemination for investigation of this case would send to future litigants is not "Disclose at Your Peril" but "Non-Disclose at Your Peril"'.

22. I further agree with him that publication in this case would show to others that a party to divorce proceedings cannot easily hide the truth. This is because, when pursued diligently as they have been here, the investigations that the other party can undertake (with the court's inquisitorial assistance at the hearing, and with the tools provided by the Family Procedure Rules), mean that wholesale non-disclosure is simply not going to produce a good result for the responsible party. And further, that a non-discloser when caught may face significant and serious consequences in terms of exposure thereafter.

23. The viability of this public policy consideration was confirmed by HHJ Hodge QC in Associated Newspapers v Bannatyne & ors [2015] EWHC 3467 Ch, where he said that:

38…. In my judgment, the public interest lies in exposing attempts to mislead the court, even if the person making such attempts then repents of what he has done and corrects the situation. There can be no public interest in inhibiting full, frank and honest disclosure to the court; but there is a public interest in encouraging full, frank and honest disclosure, and disclosure which is not full, frank and honest should be publicised.

24. Dissemination to Investigating/Regulatory Bodies: It is accepted that the court does not of itself usually report crimes it uncovers to the authorities. As Charles J put it in A v A; B v B at [741B]:

'In my judgment, it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities, the Revenue, or other public bodies. I also accept the submission that the court is not a "common informer".
The courts have a separate and discrete public function.
Further, in my judgment there is a strong public interest (within the strong public interest in the proper and efficient administration of justice) that the courts should limit themselves to carrying out their functions … and it is only when as a result of the performance of its functions a court is satisfied that an issue arises as to whether material should be disclosed in the overall public interest that it needs to consider, or should consider, that question.'

25. I am satisfied that this consideration has only arisen wholly within the context of this court's performing its function of determining the Financial Remedies application between these parties, and it is in those circumstances that the overall public interest in disclosure now needs to be considered. That the court can refer matters to public authorities is well established. In Solicitor General v JMJ; aka Re Jones (Alleged Contempt of Court) [2014] 1 FLR 852, the President said:

'12. It is well known that, on occasions, judges refer the papers in a case which has been before them to some outside agency with a view to that agency considering whether or not to take any steps arising out of the matters referred by the judge. Sometimes the papers are referred to the police, the Crown Prosecution Service or the Director of Public Prosecutions with a view to the possible commencement of criminal proceedings. Sometimes the referral is to some professional or other regulator. Sometimes the referral is to Her Majesty's Revenue and Customs. Sometimes, as here, the referral is to the Law Officers. No doubt there are other instances. Although the basis upon which such referrals are made has not very often been explored in any depth – the judgment of Charles J in A v A ; B v B [2000] 1 FLR 701 is an exception – there can be no question about the right of the judges to act in his way. Nor, in my judgment, can there be any objection to a judge, as here, referring the papers to the Law Officers with a view to them considering whether or not to bring proceedings for contempt; and, I should make clear, whether the contempt is criminal or, as in the present case, civil'.

26. Amongst his detailed conclusions in A v A: B v B, Charles J included the following, from 744D:

'(2)… the confidentiality of that material …is subject to the limitation, or proviso, that further disclosure or use of the material can be made without the consent of the person who provided it if that further disclosure or use is in the overall public interest.

(3) This has the consequence that a party to ancillary relief proceedings should be aware that if he or she does not claim the privilege against self-incrimination (where it applies) and provides information where there is a public interest in its disclosure to a prosecuting or other public authority because for example it shows or indicates that there has been illegal or unlawful conduct…the court may make or authorize disclosure of that information in the overall public interest…

(7) In assessing where the overall public interest lies in respect of further disclosure of ancillary relief material, all the relevant circumstances of each case should be taken into account, but the main factors will be the competing public interests…

(14) …I accept that there is a strong public interest in both full and frank disclosure being made in ancillary relief proceedings and the compromise of all but a few applications for ancillary relief but…the totality of the points made in this judgment in respect of the public interest against disclosure lead to the conclusion that there is not a compelling argument that there will be a significant increase: (i) of cases in which a party does not make full disclosure with the consequence that the court and the other party is misled, or (ii) of cases which are not compromised, with consequential serious damage to the family justice system, if the court takes the general stance that when they are satisfied that there has been …illegal or unlawful conduct, they will consider whether this should be reported to the Revenue, or the appropriate public authority, and it will not only be in rare cases that such reports are made.'

27. In Marlwood Commerical v Kozeny; [2005] 1 WLR 104 the Court of Appeal effectively endorsed these sentiments, in a case involving the question of whether leave should be given to claimants to produce documents to the Serious Fraud Office, which had been disclosed by the defendants under compulsion, and to which the implied undertaking against collateral use applied. Permission was nonetheless granted. In the course of giving the judgment of the court Rix LJ stated in paragraph 52:

"In such circumstances, and in the absence of any other factors argued to constitute some injustice, it seems to us again that the public interest in the investigation or prosecution of a specific offence of serious or complex fraud should take precedence over the merely general concern of the courts to control the collateral use of compulsorily disclosed documents. If such an offence had been suspected of having been committed in this country, the public interest would be in seeing that it could be investigated here if this is where the relevant documents were…. In such circumstances the public interest in proper disclosure in civil litigation does not require that documents necessary to the investigation or prosecution of serious fraud should be unavailable. Moreover, …the court's exceptional permission for relaxing the rule against collateral use in cases of serious fraud in the international context does not give cause for thinking that proper disclosure in the general run of cases will be undermined."

28. Bodey J in Y v Z (above) provided some guidance about the range of possible species of reprehensible conduct that the court might consider in different cases, and how they might be compared. He concluded his judgment on this issue as follows:

[31] Clearly there are family cases where the process uncovers and the court makes findings about things so serious that a disclosure does have to be made in the public interest: for example, where findings are made as to the perpetration of a child death; or where (say) a party who is a serving policeman is found to be corrupt; or where a party who works with children is proved to be a paedophile. Weighed up within the decision to disclose is always the question of proportionality, as to which every case is different and fact-specific. It was not established here, nor could it have been, that the father had for example been falsifying the accounts of his business, or committing defalcations with his client's money. …This is in no way at all to excuse his conduct, which was inexcusable, greedy and unfair; but it is to put what he did in its context…

[32…No one should however regard this case as a green light for failing to disclose relevant information and/or for lying to the family courts. There is and always has been a probability that anyone who does so will be the subject of sanctions of one sort or another, and of differing types and severity, including in appropriate circumstances disclosure to relevant outside agencies."

29. In this case, whilst the husband's behaviour was not at the very extreme end of the scale referred to by the Judge in that case, it was certainly on a par with 'falsifying accounts' and 'committing defalcations with his client's money'. As far as financial crimes and misdemeanours are concerned, the conduct which I have found the husband to have been responsible for here was both serious and damaging. The frauds were calculated, grave, and repeated. He has not exhibited any apparent remorse, nor did he appear to experience, quite apart from expressing, any element of regret for the way that he has been systematically defrauding people for some years. 
 
30. I also have to take into consideration the fact that all of the above guidance from earlier cases was given in instances where the party in question was not choosing to put themselves in the position of claimant. I agree with Mr Oliver that it is an aggravating factor that this husband sought to use the court as a tool for the extraction of significant sums from the wife and her family, by seeking positive orders for payments in his favour, based upon his fundamentally untrue presentation of his financial affairs. It is plainly in the public interest that all potential future investors, business associates, pension fund trustees, company shareholders, potential partners and other members of the public – species of all of which categories have already variously suffered at his hands – are protected from his schemes insofar as possible. Consequently, I will accede to the wife's application. I am satisfied that these judgments should be made public, un-anonymised, and be passed on to the appropriate Law Officers for consideration.

31. The Wife's position: Additionally or alternatively to her application seeking general publicity and anonymization, the wife seeks explicit permission to herself produce my judgments and any documents from these proceedings on an un-anonymised basis where that is reasonably required by her. Specifically, Mr Oliver includes in his list of those with whom the wife may become entangled as a result of the husband's actions, the following:

a. The current or past mortgage companies in relation to the family home, in respect of any representations she needs to make about her role in the obtaining of borrowing from them, or in the case of the current mortgage, its continuance; and

b. HMRC in respect of

i. the SDLT scheme for which she is prima facie jointly and/or solely liable;

ii. Any company of which she is or was a shareholder or company officer;

c. Any creditors of the husband's or hers, who may look to her for payment or seek to attach liability to her;

d. The police, or any other investigatory or regulatory body that may seek to communicate with her, or interview or investigate her either as suspect or potential witness; and

e. Any other person, entity, body or agency for the purposes of enforcement of the final order in these proceedings or any past costs orders.

32. I accept entirely that through no fault of her own other than perhaps gullibility and inexperience, allied to her lack of complete understanding initially of the English language, she has been linked to the husband's malfeasances. She should be entitled to defend herself from implication in these by reference to what I have found, and be able to make full explanation to anyone who makes enquiry of her as a result of the husband's actions. She should not suffer unfair liability from her ill-advised connection with the husband and his dishonest conduct.

33. I also accept that she should not have to apply back to this court, costing further legal fees and court time, on every occasion that it becomes appropriate for her to have recourse to deploy my judgments to protect her and A's interests, as may be necessary. I therefore grant the further permission that she seeks. Given my decision on the general application at paragraph 30 above, it may well be that separate permission to the wife specifically is now technically otiose. Nonetheless, and for the avoidance of doubt I have granted it and record further that for the reasons set out above, would have so granted, even if the more general unanonymised publication had not been sought by her at all, or had been refused.

Dated 24th January 2018