NA v MA  EWHC 2900 (Fam)
Application by wife for ancillary relief in a big money case. She was seeking £13.6 million but was awarded £9.1 million.
The case was described by counsel for the wife as "brutal litigation" and was further complicated by the existence of a post nuptial agreement that the wife argued she had signed under duress. In this judgment Baron J sets out the full history of the relationship breakdown and then proceeds to make her award according to the principles laid down in White and Miller and McFarlane. She also makes some comments about the conduct of the litigation.
Case No: FD05D02526
Neutral Citation Number:  EWHC 2900 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
24th November 2006
THE HONOURABLE MRS JUSTICE BARON DBE
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JEREMY POSNANSKY QC and GAVIN SMITH (instructed by Messrs U) for the Applicant
NICHOLAS MOSTYN QC and JUDE ALLEN (instructed by Messrs Z) for the Respondent
Hearing dates: 30th and 31st October, 1st – 3rd and 6th – 10th November 2006
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Judgment Approved by the court
for handing down
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Mrs Justice Baron:
1) This is an application made by NA (to whom, for ease of reference, I shall refer as the Wife) for full ancillary relief after the breakdown of her marriage to MA (the Husband). These parties were married on the 20th June 1998 having cohabited for some 6 years prior to that date. The Wife filed (but did not serve) her petition for divorce on the 12th May 2005. The Husband filed his petition on the 27th May 2005. The divorce proceeded on his petition based on the Wife's adultery. Their relationship lasted some 12½ years. They have two children. E who was born on the 27th May 2000 (6 years old) and N who was born on the 21st May 2002 (4 years old). The children have their main base with their mother and have regular contact with their father.
2) This litigation has been hard fought and it is obvious to me that much bitterness has been engendered by the disintegration of this relationship, perhaps because these parties were once so close and enmeshed with each other. The cause of much vituperation has been the Wife's adultery with the Husband's best friend which occurred in the latter stages of the marriage. The Husband, perhaps unsurprisingly, has been unable to forgive the Wife for this betrayal. Nevertheless, I believe that this factor has coloured his view of her entitlement for financial relief under the Law.
3) The costs of this case total some £1.2 million and, whilst I have no doubt that these parties can afford this level of expenditure, it is a great pity that so much of the family assets has had to be expended in this way. It was sad to see these parties effectively flayed through cross examination. I hope that the experience will have a cathartic effect, for the parties need to put this chapter behind them and concentrate upon their future role as parents. Whilst the children remain young, these parties must be able to co-operate for the benefit of E and N. I would hate to think that the children will effectively be made to suffer for the past, perceived sins of their parents.
4) The bitterness that I have described above has spilled into the litigation and the trial. Mr Mostyn QC for the Husband described it "as the most demanding case in which he had ever been involved". Mr Posnansky QC for the Wife described it as "brutal litigation". No quarter was given and, at times, there seemed to be a lack of basic co-operation to enable the smooth running of the trial. These cases are difficult enough for the parties without additional niggles being caused in this way. For example, I expect Counsel in all cases to co-operate by producing new documents in good time so that opponents can consider them. In other words not produce them with a flourish in Court. I also expect them to meet outside Court each morning (for example at least 15 minutes before the start of the day) to discuss and co-operate about "housekeeping" matters or arrange some other fail safe method. Arriving at Court with a minute to spare and no time to discuss matters can be tactical and I do not approve of the practice as it delays matters.
5) The original time estimate of this case was 5 – 7 days. In fact, it lasted some 9 days in Court without, as things turned out, allowing any time for Judgment writing. In the main the additional time was required because, during the trial, very serious allegations were made against the Wife's solicitors. Mr Posnansky has described them as a "diversionary tactic" and, whilst this may be an overstatement, the allegations took a great deal of time to unfold and analyse. As my findings will make clear they assumed much more significance than was appropriate. They first surfaced in any clear way during the Wife's cross examination. Indeed, as it was originally put that "the Wife and her lawyers had entered into a strategy", I thought that the allegation was tantamount to some form of conspiracy. I felt it necessary to intervene in order to clarify the level at which the allegations were being put. The Bar Code of Conduct is clear and I did not want Mr Mostyn QC to find himself in any form of personal difficulty. Therefore, I called for the allegations to be put into writing. This led to a clarification of the precise level of accusation.
6) A central issue in this case is whether the Wife should be held to the terms of what has been referred to as a post nuptial agreement. In essence, it was asserted that the solicitors acting for her at the date of signature had a strategy and had deliberately entered into a course of conduct that would give her an exit route. Some of their actions were not characterised as improper but, as detailed in the written document, some were stated to be "a lapse of professional duty". I deal with the precise allegations below and set out my findings. It is clear, therefore, as Mr Mostyn QC accepted in his final submissions, that the most serious allegations are tantamount to fraud.
7) I feel that the concentration on this issue (which took at least 2 days of Court time) meant that the parties' advisers began to lose sight of the central issues which are (i) should the agreement be upheld and (ii) if not, what is the level of fair award. I note, for example, that no detailed figures were given in Mr Mostyn's written final submissions: in his, Mr Posnansky referred to and adopted those in his written Opening
The Parties' Open Positions.
8) The Wife seeks some £13.6 million on a clean break basis made up as follows:-
a) £6 million for the purchase of a house, plus £240,000 (stamp duty); £450,000 (for refurbishment/redecoration) and £10,000 (moving costs)
b) £6.75 million as capitalised income provision, based on a multiplicand of £450,000 and a multiplier of 15 years.
c) £176,000 to cover debts (including the purchase of two cars and alleged shortfall in maintenance payments/inadequate provision prior to the maintenance pending suit order).
d) Periodical payments for the children at the rate of £60,000 per annum each (index linked) plus school bills inclusive of reasonable extras and private health care cover.
e) A division of chattels.
9) The Husband asserts that the Wife's claims should be limited to the terms of a post nuptial agreement that was signed by the Wife on the 9th March 2005 and, as I find, by the Husband on about the 25th April 2005. The relevant terms of that agreement are that the Wife's claim should be limited as follows:-
a) £3 million (index linked, so now £3.3 million) in respect of her total housing fund. That figure having been specified by the Husband's matrimonial advisors as representing 50% of the then (incorrectly) perceived gross value of the former matrimonial home. It is asserted that this sum should be provided as a lump sum order.
b) Income provision of £240,000 per annum (index linked, so now £252,000 odd per annum) for herself during joint lives or until remarriage. The submission is that this maintenance should not be capitalised or be capable of capitalisation. Consequently, it is submitted that the Court order should dismiss the Wife's rights to a periodical payments order so that any variation application has to be made under the terms of Section 35 of the Matrimonial Causes Act 1973 (which does not permit capitalisation). This is, perhaps, a surprising submission given that, in an early attendance note the Husband's solicitor apparently accepted that capitalisation was a possibility. I quote from an attendance note dated the 28th January 2005
"Attending Mr Z on the telephone when he said that your Husband was going to be adamant about you signing the post nuptial agreement. He appreciated that that we wanted a clean break but the provision offered would not stop that happening".
c) In addition, £60,000 per annum (index linked, so now a total of £126,000 odd) for each of the children plus their school bills.
10) The issues which fall to be determined by the Court are as follows:-
a) The enforceability (or otherwise) of the post nuptial agreement.
b) The value of the Husband's resources. It is his case that he is worth about £21.5 million and the Wife's case that he is worth some £46.5 million. A schedule showing the £25 million difference is annexed to this Judgment marked "1".
c) If the post nuptial agreement is not to be enforced per se, then an assessment of the fair award for the Wife after the application of Section 25 Matrimonial Causes Act 1973 in accordance with Authority.
11) One of the central issues in this case is whether a post nuptial agreement signed by the Wife on the 9th March 2005 (which limits her claims) should be enforced by this Court. Accordingly, before I consider the facts, I will outline the current legal position in relation to contracts between spouses.
12) It is an accepted fact that an agreement entered into between Husband and Wife does not oust the jurisdiction of this Court. For many years, agreements between spouses were considered void for public policy reasons but this is no longer the case. In fact over the years, pre nuptial "contracts" have become increasingly common place and are, I accept, much more likely to be accepted by these Courts as governing what should occur between the parties when the prospective marriage comes to an end. That is, of course, subject to the discretion of the Court and the application of a test of fairness/manifest unfairness. It may well be that Parliament will provide legislation but, until that occurs, current Authority makes it clear that the agreements are not enforceable per se although they can be persuasive (or definitive) depending upon the precise circumstances that lead to their completion.
13) In Edgar v Edgar  1 WLR 1410, as Ormrod LJ, with whose judgment Oliver LJ agreed, said, at 1417C:
"To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is not intended to be an exclusive catalogue."
Oliver LJ similarly enunciated the general principle at 142E-F:
"… in a consideration of what is just to be done in the exercise of the court's powers under the Act of 1973 in the light of the conduct of the parties, the court must, I think, start from the position that a solemn and freely negotiated bargain by which a party defines her own requirements ought to be adhered to unless some clear and compelling reason, such as, for instance, a drastic change of circumstances, is shown to the contrary."
14) I accept that these are succinct and proper formulations of the test to be applied.
15) Munby J in X v X (Y & Z Intervening)  1 FLR 508 at page 536 summarised the following propositions as relevant:
• In exercising its duty under s 25 the task of the court is to reach a just result, what Lord Nicholls of Birkenhead in White v White  1 AC 596,  2 FLR 981 at 599H and 983H respectively called the 'fair' outcome…
• The fact that the parties have made their own agreement is a 'very important' factor in considering what is the just and fair outcome. The amount of importance will vary from case to case.
• The court will not lightly permit parties who have made an agreement between themselves to depart from it. The court should be slow to invade the contractual territory, for as a matter of general policy what the parties have themselves agreed should, unless on the face of it or in fact contrary to public policy or subject to some vitiating feature of the type referred to by Ormrod LJ, be upheld by the courts.
• A formal agreement, properly and fairly arrived at with competent legal advice, should be upheld by the court unless there are 'good and substantial grounds' for concluding that an 'injustice' will be done by holding the parties to it (I adopt Ormrod LJ's formulation in preference to that of Thorpe J: his references to 'the most exceptional circumstances' and 'overwhelmingly strong considerations' seem to me, with respect, to put the matter perhaps a little too high).
• The mere fact that one party might have done better by going to court is not of itself generally a ground for permitting that party to resile from what was agreed.
• The court must none the less have regard to all the circumstances. The circumstances are to be judged in their totality and with a broad perspective rather than individually one by one.
• In particular the court must have regard to the circumstances surrounding the making of the agreement, the extent to which the parties themselves attached importance to it and the extent to which the parties themselves have acted upon it.
• The relevant circumstances are not limited to the purely financial aspects of the agreement: social, personal and, I would add, religious and cultural considerations, all have to be taken into account.
• The court should bear in mind the undesirability of stirring up problems with parties who have come to an agreement.
• On the contrary the court should if possible, and consistent with its duty under s 25, seek to bring about family peace and finality
16) It is the Wife's case that she should not be held to this deal because she was improperly pressured into signing it as a result of her Husband's conduct over a period of about 3 months. The formulation per Ormrod LJ is "undue pressure". It is the Husband's case that the test should be akin to that of undue influence in civil cases.
17) In RBS v Etridge (No 2)  2 FLR 1364 Lord Nicholls stated:
 The issues raised by these appeals make it necessary to go back to first principles. Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. To this end the common law developed a principle of duress. Originally this was narrow in its scope, restricted to the more blatant forms of physical coercion, such as personal violence.
 Here, as elsewhere in the law, equity supplemented the common law. Equity extended the reach of the law to other unacceptable forms of persuasion. The law will investigate the manner in which the intention to enter into the transaction was secured: 'how the intention was produced', in the oft repeated words of Lord Eldon LC, from as long ago as 1807 (Huguenin v Baseley (1807) 14 Ves 273, 300). If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or 'undue' influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another, and the manner in which influence may be exercised, vary too widely to permit of any more specific criterion. [emphasis added]
18) This is a fair formulation to enable the assessment of any given set of circumstances. However, in a case involving a Husband and Wife where it is clear that interdependence and mutual influence are the basis of the relationship, I consider that the Court has to take special care when assessing the manner in which each party's conduct affected the other. For example, if a wife has been accustomed to placing reliance upon her husband's decisions she might be much more easily influenced than an individual in a commercial transaction.
19) In Etridge Lord Nicholls stated at 1368:
" Equity identified broadly two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. Today there is much overlap with the principle of duress as this principle has subsequently developed. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage….
 In cases of this latter nature the influence one person has over another provides scope for misuse without any specific overt acts of persuasion. The relationship between two individuals may be such that, without more, one of them is disposed to agree a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired……
 The law has long recognised the need to prevent abuse of influence in these 'relationship' cases despite the absence of evidence of overt acts of persuasive conduct. The types of relationship, such as parent and child, in which this principle falls to be applied cannot be listed exhaustively. Relationships are infinitely various….
 Even this test is not comprehensive. The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. None of these descriptions is perfect. None is all embracing. Each has its proper place.
It is not essential that the transaction should be disadvantageous to the pressurised or influenced person, either in financial terms or in any other way. However, in the nature of things, questions of undue influence will not usually arise, and the exercise of undue influence is unlikely to occur, where the transaction is innocuous. The issue is likely to arise only when, in some respect, the transaction was disadvantageous either from the outset or as matters turned out.
Burden of proof and presumptions
 Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.
 Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn."
20) Clearly, this statement of law requires some modification for the special relationship between spouses that I have outlined. Nevertheless, I am clear that, to overturn the agreement, I have to be satisfied that this Wife's will was overborne by her Husband exercising undue pressure or influence over her.
21) I am also clear that if I do not overturn the agreement per se, I still have to consider whether it is fair and should be approved so as to become a Court order.
22) It is Mr Mostyn QC's submission that the Husband did nothing unlawful in this case. He simply gave his Wife a very tough choice. Its terms were: sign the agreement or the marriage may come to an end. That in itself, he submits, cannot be characterised as undue pressure.
The Factual Matrix.
23) I will now set out the relevant facts as I find them. For the avoidance of doubt, insofar as the matters set out differ from the evidence of the Husband, the Wife or any of their respective witnesses, this is because I have preferred the evidence of another or because I consider that the documents produced confirm my finding of fact.
24) The Wife was born on the 9th October 1971 (now 35 years old). She is an only child of her parents' marriage. Her father worked in the Hotel trade and so, as a child, she lived an international lifestyle because her father moved from one country to the next. Her own early family life does not appear to have been happy. At the age of about 18 years, she went to Switzerland to study at a hotel school but left after only 2 years without completing the course.
She then moved to London where she started working with I G Hotels. She shared a rented apartment with a friend in Kensington. As she approached adulthood, her parents divorced. By this date, her father was based in the Far East (where he remains). Her Mother returned to England. It seems that the divorce was acrimonious and her Father was particularly ungenerous to his former spouse. As a result the Wife (but to date, in reality, her Husband) have had to support her over the years. Currently, the Wife gives her mother £3,400 per month (£40,800 per annum) to cover her costs and mortgage. She sees this as a long term commitment and I expect that it is. Whatever the outcome of this case, she will have sufficient to continue to assist her mother on this way from her own resources.
25) The Wife's upbringing left her with a somewhat fragile personality and it seems likely that, from a young age, she had to develop strategies to cope with family strife.
26) The Husband was born on the 18th July 1975 (31 years old). He is the younger son of Mr AA who was Lebanese and his wife BA who is German by birth. The Husband has one brother (L) who is some 5 years older. AA was a brilliant entrepreneur who started his business in 1948 providing catering services for the I P Company. That business grew, developed and proved to be highly successful. AA's two brothers (EA and JA) joined him in the enterprise although EA did not remain. As the business became international it was operated through an entity called the AA Corporation ("AAC") which was incorporated in 1979. This was, in turn, owned by trusts/Foundations.
27) AA did not marry until a relatively stage in his life and there was a 20 year age gap between him and his spouse.
At some stage, the As moved to London and set up home in a very fine establishment in Highgate. The house was large with extensive grounds and fully staffed. The family lived a very luxurious lifestyle and wanted for nothing. But, despite having great riches, it would appear that the household was very unhappy. I have heard and seen evidence that it was "dysfunctional", "divided" and "political". Certainly, life was not easy for the Husband and he had to learn coping strategies to avoid factional in-fighting.
28) The parties met through a mutual friend in 1992 when the Husband was 17 years old and the Wife was 21 years old. The attraction was immediate and they soon became inseparable. The Husband invited his new girl friend to attend a wedding in the Lebanon and, upon her return from that visit, she developed Hepatitis A (caught from food). She was seriously debilitated by the illness and was invited to move into the A home where she could be cared for in the expectation that she would recover soonest.
29) The A family were fortunate to have a General Practitioner who was on call on a 24 hour a day basis. His name was Dr B. He had been placed on a generous retainer by the family some time in about 1990. He took care not only of the family members but also of their domestic staff and their London based employees. He soon became a trusted confidant, adviser and friend to the entire family. The result was that he had an intimate knowledge of all family members. He told me that he was accustomed to dining with one or other as often as twice a week. It was his evidence (which I accept on this point) that, from his observation, the family was dysfunctional.
30) The Wife soon recovered but remained in situ. It was agreed that she would give up her employment and she soon became an integral member of the household, wholly dependent upon her boyfriend and his family for financial support and emotional succour. I have no doubt that she was given everything that she needed or wanted but, in return, she lost her entire independence. She soon found that she was required to support her boyfriend in the various, stressful family situations which occurred quite regularly. The young couple each acknowledged that they had suffered as a result of family problems and, because each of their parents had committed adultery, they promised each other that this would not happen in their relationship.
31) I have no doubt that they were soon inseparable and mutually interdependent. However, by 1994, the Wife found the situation so overwhelming that she sought assistance from Dr B for some form of depression. He prescribed Prozac and sent her to an eminent Consultant Clinical Psychologist. The Wife was complaining about stress levels within the household and her lack of independence. She also gave details relating to issues which stemmed from her own background. A number of letters from the Consultant feature in her medical notes. They set out the details of her contemporaneous complaints and worries. Needless to say, they only reflect her perception of the difficulties and I have not thought it appropriate to concentrate upon these matters and so make no findings upon whether she was justified or not. However, what is abundantly clear, is that the young couple were deeply in love and, whatever the problems, the Wife genuinely believed that "love would conquer all". I understand that the Husband also became the Consultant's patient for a period. But nothing turns on these early events.
32) The parties married in 1998 but remained living in the A household. Later that year AA died. By that time, the business (which was owned through a sophisticated web of offshore entities) had a turnover of some $1.2 billion per annum, had some 30,000 employees and operated in 30 countries worldwide. The 2000 group accounts refer to 114 subsidiaries, 8 associated companies and 25 partnerships. On the 11th September 2000, Credit Suisse First Boston valued the Group at between US$459 and US$509 million.
33) AA's majority share (being some 84.8%) in the overall business was ultimately held in/through the A A Foundation (AAF) based in Liechtenstein. Some 15% of the business was held on behalf of his brother JA (and his family) in the J A Foundation (JAF).
34) At AA's death the assets of his Foundation fell to be divided so that his widow received 20% and each of his sons each received 40%.
35) As AA grew older the profitability of the group began to decline because some ventures caused major losses and margins were decreasing. Despite this, the group remained successful. It seems clear that the continued prosperity of the business was dependent upon the skill of AA. In 1999 the companies produced a profit of US$2.1 million (which in itself was a reduction) but by 2000 the losses totalled US$9.1 million and by 2001 the losses were US$23.6 million.
In the period immediately following his death, AA's widow and his sons were in overall charge of the group but family strife soon emerged to the detriment of the business. The Husband's brother, L, encouraged by his uncle, JA, tried to seize control in order to effect a favourable division of the assets. Proceedings were issued in Liechtenstein and London and, per a letter from the Husband's commercial solicitor, Mr DS, "open warfare broke out between the various factions within AAC who were either loyal to BA, the Husband or L. The business became paralysed and the financial situation worsened considerably".
36) It soon became apparent that high scale losses could not be maintained. It was therefore decided that the business should be managed by a professional team and groomed for sale. In order to make this possible the group was divided into 5 Guernsey companies which, for ease of reference, are referred to as the BDCs. Eventually, the most profitable parts of AAC were sold for approximately US$400 million of which some 84.8% was due to AAF. The Foundations terms, as I have already stated, were to the effect that its assets should be divided as 20% to the widow and 40% to each son. However, shortly before his death, AA wrote a letter of wishes to the effect that, if the businesses were sold, then the first £105 million should be divided as to one third to his widow and the remainder between his sons. In effect, this produced an equal division of that sum. The figures meant that the widow received about $14 million more than her original entitlement. Her sons were angry that she should benefit in this way. The Husband informed me that this issue meant that his mother has been disposed to "lend" this sum (i.e. $7 million) to each son. However, in the light of the history and the evidence that I have heard I believe that "loans" at this level will be forgiven. Apparently, L has already received "his" $7 million.
37) The result of the re-jigged division meant that, in round terms, the Husband's 40% share of AAF was US$124,000,000 (after professional costs).
38) Some of the assets originally owned within AAC remain to be sold and so future distributions will be made. I shall deal with this aspect of the matter in more detail below.
39) It might have been thought that the loss of AAC would have brought an end to family hostilities but this was not to be. The JAF (JA's Foundation) brought arbitration proceedings in France (applying Liechtenstein Law) against this branch of the A family alleging loss resulting from (i) mismanagement and/or gross negligence; (ii) unnecessary expenditure incurred by AAC in its break-up; (iii) disposal of operations at an undervalue; (iv) fraudulent events; (v) the reconstruction into the Guernsey companies and (vi) lack of information. These proceedings have been on–going for some years.
40) The current situation is that the French Tribunal have struck out the personal proceedings against the Husband, his brother and mother although that ruling is the subject of appeal. In the foreseeable future there is a further first instance judgment due at which a strike out of the entire proceedings will be adjudicated. . The situation remains to be resolved.
The History of the relationship
41) After the death of AA there can be little doubt that the next few years were very stressful. Despite these ifficulties, it seems that the Husband and Wife continued to operate as a very successful team until the birth of their first child, E, who was born in May 2000. It is the Wife's case that their relationship began to deteriorate from this time onwards because she felt increasingly isolated and unappreciated. Of course, the birth of children can often lead to new strains within a marriage. But in this case those troubles were coupled with business problems and difficult extended family dynamics of epic proportions.
42) The Husband had hoped to continue running AAC. Therefore, its eventual sale and the loss of guidance from his much loved father must have caused him numerous emotional difficulties. Neither party can be blamed for their individual failings within this period. The Wife was devoted to her son and, upon her arrival, her daughter. The Husband was doing his best to resolve the grave crisis within AAC and the wider family. But, with hindsight, the marriage began to drift. This was particularly sad because each needed the other so much.
43) In 2001, having received his (much reduced) inheritance, the Husband decided to start his own businesses. Since that date, he has invested some US$78 million in the MA Restaurant Corporation (ZZZ), VH Limited (Dubai operations), ZZZ Fine Wines Ltd (previously the N Group) and ZZZ U.S.A.
44) It was his dream to emulate his father in the catering world by establishing, inter alia, a chain of fine dining restaurants in the UK and USA, a fine wine wholesale business and a catering enterprise in Dubai. Of course, he did not have his Father's expertise or experience and, as a result, he has made many mistakes. Presently, I understand that the businesses are losing either $500,000 or £500,000 per month (figures vary in the papers). I have been told that he has plans to rationalise the business but he will need to act very quickly if it is to survive. To date, as I find, he has lost at least £20 million in these ventures and it may well be a great deal more.
45) The Husband has employed what he considers to be a talented team at head office. In broad terms the business operates some 5 restaurants, a wine wholesale and a food distribution business. He now has some 550 employees in 3 centres of operation. His initial venture was to purchase O Club which operates from a large town house in a London Square. This dining club has been established for many years but had had a number of owners. The Husband purchased the "business" upon the basis that he had a licence to use the building and an option to purchase (for up to £2 million) a controlling interest (having already bought some 25%) in the underlying company which held a 15 year lease from the Grosvenor Estate.
46) Next, he bought the G Restaurant in Mayfair and then started a new Japanese Restaurant called U. Whilst undertaking these ventures he travelled to America and started two new ventures. The first is a restaurant called G, which is a mid-price venue in Greenwich, Connecticut. The second a restaurant called V in central New York City. He also invested in excess of £12 million in fine wine. His venture in Dubai consists of a food/wine supply business and the franchise rights for American style diners which he hopes to roll out in at least 3 Gulf States.
47) It is clear that the Husband was soon pre-occupied with these various ventures. The Wife wanted to become involved in them and did assist in a general way by being concerned with some interior design decisions. However, I do not have the impression that her involvement was other than peripheral. I am sure that she did her best to assist but her main focus was caring for the children. It is accepted by all that she is a good and committed mother.
48) I have the impression that this couple used their involvement with the various restaurants as an adjunct to their social life. They visited and used them regularly. However, I do not have the impression that the Husband was able to exercise any real professional grip in this very competitive trade.
49) I am clear that they lived a very lavish lifestyle. A print out shows that, in 2003, some £1.22 million was expended upon their lifestyle. This included some £337,000 on staff; £18,000 on flowers; £44,500 on food (apart from restaurants); £36,800 on travel; £118,000 on credit cards and £450,000 on "miscellaneous". In the context of their wealth (even though it was then in excess of £60 million) this was unbridled extravagance. I note that they had 2 housekeepers, 2 cooks, 2 drivers and a nanny. Food was flown in from abroad to cater for their individual needs. They travelled on private jets, holidayed in the best hotels and, in short, had the best that money could buy. I expect that this simply marked the continuation of the type of life that had been enjoyed when AA was alive. However, he was a successful entrepreneur with a multi-national business which created substantial profits. He may have been able to afford an amazing level of luxury but the same was not true for this Husband or Wife. I do not seek to criticize this couple for the way in which they lived; I simply consider that it was rather short sighted and immature. It does not seem to me that it could be afforded in the long term (unless the Husband's business ventures proved to be a great success). Therefore it was, as I find, inevitable that this type of life would have had to be moderated in time.
50) By 2004, the marriage was in serious difficulties. The Wife was writing impassioned letters to the Husband. She described him in glowing terms but I consider that these letters were cries for help and understanding. It is not surprising that they were written in a flattering way because she wanted his attention and assistance. She told me, and I accept, that the letters were written because she felt that they were the only way that she could communicate with her Husband. Unfortunately, the underlying messages went unheeded. I am not ascribing culpability to the Husband because I do not believe that he was emotionally equipped to sympathise or empathise with her. But there was a failure of understanding and a crisis was looming. In the summer 2004, the Wife went to see Dr B (whom she also regarded as a trusted friend and confidant) and revealed her level of unhappiness to him. She indicated to him that she was considering a separation. It does not seem that the level of her distress was communicated to the Husband by him.
51) The result of the Wife's unhappiness and the Husband's failure to pick up the clues led to her seeking comfort from a Mr Y. He was the Husband's best friend and he worked as a trusted employee at Head Office. The relationship deepened and the Wife, who I find was vulnerable, transferred her need for attention and affection to him. They began meeting in secret and were in constant communication. They spoke on her mobile phone and sent texts to each other with amazing frequency. I have been told that, at its peak, some 150 – 200 texts a day passed between them. Long telephone calls were made in which they engaged in sexual fantasies and the like.
52) The Wife has described herself as living in a "golden cage". She was surrounded by staff – who owed their ultimate loyalty to her Husband – and one, Mr Az, noticed the unusual use of her mobile. He determined to discover what was afoot. It was her custom, each evening, to give the phone to him to be charged. He decided to read the in-box of her text messages. He found that the content was sexual and compromising. He decided that he would gather evidence to support his belief that the Wife was having an affair. He also took this information to Dr B and paid a special visit to the doctor to discuss matters. I accept that he went to a shop in Kilburn Lane and paid £450 for a device with which to "bug" the household telephone. He then placed it on line 5 (the "default" outside line on the home exchange) and, as a result, recorded numerous compromising calls between the Wife and Mr Y. The cost of the device was equivalent to his net pay for a week. He said that he paid for it from his personal resources. I cannot make findings about this aspect of the case because it was not investigated further. Dr B continued to be involved on a regular basis and, once all the information in the form of tapes had been collated, Mr Az gave his information to the Husband on the 9th December 2004.
53) On the previous day, the 8th December 2004, the Wife had been to see Dr B (she used to attend regularly for thyroid checks). He described her as extremely buoyant and very glamorous. She told him that she had never felt more in control of her life. I accept that description. Of course, she was in the midst of her affair with Mr Y. Dr B also knew this fact but he did not tell her that he had receiving regular information about her affair or that she was still being monitored by her chauffeur, Mr Az.
54) It seems that the Husband was given Mr Az's information in the morning. I accept that it was devastating proof and, at first, he could not absorb the information. He told me, and I accept, that on that day he did not feel that he was living in the real world. His immediate reaction was to go and see his friend Dr B. I have already pointed to his friendship with the family. By this date he was godfather to both children and spent long periods with the family at weekends. The doctor was also in debt to the Husband for the latter's previous financial kindness. In particular, Dr B told me that the Husband had given him £32,000 (about one month's earnings) when he suffered a personal bereavement that required a good deal of his time. He had also engaged in share trading with the Husband and the latter lost approximately £147,000 as a result of the doctor's introduction. Of course, the doctor was also on an annual retainer (apparently, equivalent to about a month's salary).
55) The Husband considered him a trusted confidant and wise man. He was, as I find, from the outset wholly supportive of the Husband and his cause. It was to the Husband that his first and only loyalty lay - not only because he relied upon the Husband for a part of his income but because he enjoyed the lifestyle add-ons that came with being his friend.
56) The Wife also considered Dr B to be a trusted adviser. From her perspective this was unfortunate because she did not appreciate that he was not and, as I find, was never going to be, even handed.
57) Dr B described the Husband as looking like a "wounded animal" when he saw him on that morning of the 9th December 2004. I accept that description. The Husband could not believe what he perceived as the Wife's ultimate treachery with his best friend. He felt that the two people, whom he had trusted the most, had betrayed him in a most fundamental way. I think that he had good reason to have these feelings. When he visited Dr B he told him that the marriage was over because he could never forgive the Wife. It is Dr B's evidence that he tried to calm him down. Of course, the doctor was not really surprised by the revelations as he already knew of the affair through the information that Mr Az had collected.
58) The Husband told the doctor that he wished to go to see DS (his commercial solicitor) immediately. Although he had access to a driver, it was agreed that the doctor would drive him. The two men saw Mr DS on that day. I note that no reference was made to this first visit in the doctor's affidavit and the evidence only emerged in the witness box.
The doctor stated that Mr S also tried to calm the Husband because he had been "in a similar situation".
59) They both sought to persuade the Husband that he should not make a snap decision as there might be a way to mend the marriage. I am clear that, on that day, the Husband was convinced that the marriage had to end and could see no other way forward. The Husband then travelled to his office and arranged to see Mr Y in Berkeley Square. The latter denied the affair and the Husband indicated that he accepted the explanation because he wanted to believe him. However, as he drove home, he realised that there was no truth in the denial.
60) He tackled his wife about her actions. She denied it until she was presented with all the evidence. When there was no alternative, she accepted that there had been "one act of adultery". I consider that she sought to minimize the affair and I have little doubt but that there were more acts of adultery than she was prepared to admit. Despite this, she was, I accept, extremely remorseful and stated that she would do anything in her power to save the marriage. She was mortified by her behaviour and could not explain the reasons for her affair.
61) She soon realised that the Husband wanted to leave her and considered the marriage at an end. She was extremely distressed by this state of affairs. I am clear that she was unable to think straight as she was consumed with guilt. She felt that, as everything was her fault, she had to do anything and everything in her power to placate her husband.
62) On that day the Husband found it impossible to come to terms with her admission. He sought full explanations for and details of the affair which she could not give. I doubt that she had a clear understanding of her own motivation and was reluctant to give him the full details because she knew that this would only fuel his anger. I am sure that both of these people were in melt down on that day and did not know where their future lay.
63) The Husband continued to be beside himself with anger and disappointment. He did not think that he would ever be able to forgive the Wife. I am sure that his explanation of his first reaction was accurate and I find that, in reality, he has never been (and will never be) able to forgive her.
64) The Wife wanted to save the marriage and her family life not only for herself but, more importantly, for the children. The Husband was the dominant partner in this relationship. Dr B told me that over the years the Wife had became more assertive because, as he put it, she had become accustomed to getting her own way within the household. He felt that the Husband was reactive to situations but I do not accept this description of the dynamics. The Wife had been wholly dependent upon the Husband for about 12 years, she was (and is) a much less forceful character and she was accustomed to taking a placatory role within the family. At this time, she knew that she was wholly in the wrong and that her only chance of saving the marriage was to plead for the Husband's forgiveness and take such actions as he required if he was prepared to enter into some form of reconciliation.
65) Like her Husband, the Wife sought the counsel of Dr B. She thought he was an honest broker in the situation. But she did not know of his role in the discovery of her affair nor, more importantly, of his visits to Mr DS, with the Husband. He never gave her this information. The doctor decided that he would be the Husband's counsellor and mentor in this situation. He told me that he wanted to save the marriage if that were possible. I accept that evidence but I am equally sure, as I set out below, that he wanted to protect the Husband if no reconciliation proved possible.
66) The Husband is described by Dr B as angry, dogmatic and emphatic about the affair during this period. I accept that description but do not think that it goes far enough because, having seen him give evidence, I consider that the Husband was consumed with general anger, upset and grief about his marriage. He could not forgive his wife for her betrayal and he was absolutely furious with her.
67) The Husband saw Dr B regularly. In fact, the doctor was spending so much time on these matters that the other partners in the practice told him to keep a record of the time in case their profits suffered. After a few days, Dr B said that he was able to convince the Husband that there might be a way forward if the Wife were prepared to enter into an agreement. I do not believe that initially the doctor saw this as a separation or post nuptial agreement in legal terms. I accept that it is more likely he saw it as a basis for setting out the terms of reconciliation.
However as the idea of an agreement evolved it hardened into a legal, post nuptial agreement.
68) The Husband told me that he was afraid that, if he invested emotionally in reconciliation, the Wife might later resume her affair with Mr Y. If she did, he did not want to find himself in a position where Mr Y was living in "a house which [he] had provided, living full time with [his] children and living on [his] money". If he could, he wanted to make sure that this did not occur.
69) At some stage, he told Dr B that he would consider a reconciliation if the Wife agreed to 3 conditions:
a) That she did not see Mr Y again.
b) That she did not see her best friend I again (as he felt she must have been complicit in the affair).
c) That she signed a post nuptial agreement dealing with the children and finances which would be effective if the marriage broke down.
70) I consider that the first term was reasonable (indeed essential) if the marriage was to survive. The second term was less reasonable because it had the effect of isolating the Wife from a supportive friend. I deal with my view of the third condition below.
71) In the light of this, the two men visited Mr DS on a second occasion on about the 16th December 2004. At this meeting it was decided to draw up a formal agreement. Dr B told me that he only remained in the office whilst a general discussion took place and was not there when the financial terms of the agreement were discussed. I do not accept his evidence on this point. I believe that he was a crucial part of the team and a valued adviser. I believe that he has only sought to distance himself now because of his role with the Wife in the later negotiations and the problems that he is facing as a result of the Wife's complaints about him to the GMC.
72) The Husband told me that he was really only interested in the terms relating to the children as he wanted them to spend 50% of their time with each parent. Whilst I am sure that he wanted to secure a proper division of time, I am convinced that the financial terms became increasingly more important, indeed crucial, to him. By the time the agreement came to be signed it was only the financial terms that really mattered.
73) The Husband told me that the financial terms were discussed with Mr DS and they decided upon the figures without reference to any detail but simply on the basis of what the Husband considered to be fair and generous. Thus, they alighted upon £3 million for housing and a monthly payment of £20,000 for the Wife plus a total of £10,000 per month for the children. If this description is correct, and I have no reason to doubt it, the figures put forward did not represent any careful consideration of what might be appropriate or needed. They only represented what the Husband was prepared to pay. It was that simple. Apparently, there are no notes of the meetings which took place with Mr DS because, it is said, they were undertaken on the basis of friendship and the relevant file is missing. I am surprised by this but take it no further.
74) Dr B states in his affidavit that he "enquired just to be 100% sure on my own behalf that his [i.e. the Husband's] intent was not to get [the Wife] to sign a financial agreement and then divorce her, leaving her disadvantaged". When I asked him how he gathered that she would be disadvantaged he said that he just presumed that this would be the case. I do not accept this evidence, I consider that he knew there was disadvantage because he was fully aware of the Husband's attitude and knew the terms that were being offered.
75) I am clear that the precise terms were devised for two reasons. First, because it was perceived that the Wife would be more likely to remain within the marriage if she appreciated that, on exit, she would have considerably less than she was accustomed to or needed. Secondly, if she did leave then she would receive less than her entitlement under the Law with the vital knock-on effect relating to Mr Y which the Husband considered to be of critical importance.
76) As the Husband knew (or ought to have known) the precise costs of the family's lifestyle, he appreciated that the proposed deal did not represent a generous proposal. I am clear, and so find, that Dr B also knew that the deal was ungenerous and understood its purpose.
77) Mr DS decided that the agreement should be drawn up by a matrimonial specialist and contacted Mr Z to book an appointment on the 16th December 2004. He also understood that the Wife would need independent legal advice and considered that Mr V of Messrs U and Co was the ideal candidate for the job being a man of long experience. The Wife was told that she should go and see him. She was not given any choice in the matter (not even a list of potential candidates). She simply did as she was told and agreed to attend Mr V.
78) The general terms for a reconciliation were conveyed to the Wife by the Husband and she agreed that she would "do anything" to save the marriage. I am clear that she knew, from the Husband's tone and anger, that signing the agreement was an essential pre-requisite to the marriage continuing. As she wanted to remain married, she was immediately subject to what I find was intolerable pressure at a time when the whole structure of her family life had disintegrated even though this was as a result of her own actions. She felt very guilty and I have no doubt that her guilt was used against her on a regular basis. The Husband has accepted and, I so find, that he regularly brought up the subject in arguments. I also have no doubt that the Wife was worried about her own future but, more importantly, she was worried about her children and how any separation would impact upon them.
79) The appointment with Mr V was fixed for the 22nd December 2004 and the Wife attended. The detail of that meeting is dealt with in another part of this Judgment.
80) The Husband told the Wife that she had to "take a leap of faith" and sign the deal to save the marriage. I am clear that the Wife had no real knowledge of finances. She was simply accustomed to spending as she chose and she did not know what it would cost to run her own life. As far as she was concerned she trusted her Husband on financial matters. She had never had to budget or consider the detail of any financial package. Both the Husband and Dr B have given evidence that she said that the financial deal was "generous" and that she said that she "did not want the Husband's money". I accept that she may have said these things even though no clear date has been put upon her utterances. However, it is obvious to me that she had no idea what she needed and I therefore discount the reliability of her perception of the terms as actually being generous. I do not think that she had the information or knowledge to judge. Moreover, she was unable to concentrate upon such matters as her state of mind was in such flux.
81) I was troubled by the continual reference to requiring the Wife to take a "leap of faith by signing the agreement" as it seemed to me to be illogical phraseology. I have no doubt that it was said to the Wife very regularly and she was made to feel that signing the agreement would be an act of good faith but this was not the true meaning of the phrase. I come to the conclusion that it only makes sense from the Husband's perspective, when consideration is given to his mind set and his knowledge that it substantially limited his financial liability to her. From the Husband's point of view, there was no point in having a financial agreement unless it confined the wife's claims particularly given his view that he did not want Mr Y to have access to his capital. It also had the advantage that it subjected her to a measure of continued control through the payment of maintenance if the marriage did break down. The Wife probably saw the phrase in terms of putting her trust in the Husband to be fair but, in that, she was sadly mistaken.
82) In December 2004, on Dr B's recommendation, the Wife was referred to a counsellor/psychotherapist called Mr K. She saw him for the first time on about the 15th December before, it would seem, the precise terms of the agreement had been formulated in Mr DS's office which, as I have found, occurred on about the 16th December.
83) In his affidavit (and confirmed in his oral testimony) Mr K reports the Wife as saying to him "since the discovery [of the affair] her Husband had become emotionally abusive towards her and he was playing mind games in order to manipulate and control her. She felt that she was being put down at every level. She told me that her Husband was unable to forgive her and wanted to punish her by making her feel guilty about her actions".
84) He reported that a constant theme at their weekly meetings was her wish for the marriage to continue. Whilst the therapist wanted to concentrate on the difficulties within the relationship the Wife repeated that the Husband was primarily interested in her signing the agreement. She continued to be consumed by guilt and shame. She repeatedly told Mr K that she would do anything to make the marriage work.
85) Mr Z saw the Husband on the 17th December 2004 and he prepared a first draft of the post nuptial agreement. It is no part of this case that Mr Z assisted with devising the basic terms. Thus, no matrimonial expertise was employed in assessing the figures.
86) At some stage, the dates of which are unclear (other than they were early in this process), Mr K held two meetings with the parties and Dr B (who was now acting as the Husband's "therapist"). Mr K reports that the Husband was dogmatic and agitated. He said that the Husband made it clear that there was no scope for compromise "until the paper was signed". Dr B agreed that the Husband was agitated and dogmatic but he thought it was in relation to the affair not the agreement. I consider that Mr K's version is correct. Even by this early stage, the Husband was insistent upon the agreement because he had already rationalised that it would protect him, particularly if the marriage did not survive.
87) Mr K told the parties that he feared that the paper signalled the ending of the marriage. This advice was ignored. He describes the Husband as rigid in his demands, emphatic and angry. I accept that evidence. The Husband stormed out of the second meeting when Mr K tried to suggest that his own behaviour might have led in some way to the Wife's adultery. Dr B said he felt it was too early to ask the Husband to deal with this type of issue. He may be correct in that analysis. Nevertheless it is a graphic illustration of the fact that the Husband would countenance no viewpoint but his own. If he was prepared to walk out of a professional meeting (which was attempting to further the reconciliation process) I am clear that his behaviour at home was likely to be much more petulant if matters were raised that he did not like. He was accustomed to having his own way and I accept the Wife's version of their home life during this period to the effect that he was absolutely insistent that the agreement be signed and would not listen to her view point on various issues.
88) Mr K told me that the Wife wanted to spend most of the time at each session speaking about the agreement. He reports her as saying "she was being put under extreme pressure by her Husband and made to do something she did not want to do, but felt helpless. For the majority of the time, she was in a terrible state and I feared that she was close to a nervous breakdown. She was physically exhausted and emotionally drained. She told me that she believed that the staff at her home were spying on her.....". I accept this evidence as an accurate record of what took place at these meetings and the Wife's physical and mental state at that time. I am clear that she was increasingly worn down and overborne by the Husband's recriminations and insistence that the only way forward was her signature on the agreement. I accept that, even before a draft was in being, he told her it must be signed and be signed quickly.
89) On the 23rd December 2004 (the Wife having seen Mr V the day before) Mr Z sent the first draft of the post nuptial agreement to the Wife's solicitors. Of course, all this happened within 2 weeks of the discovery of the Wife's adultery when emotions were raw. Both parties, but particularly the Wife, were truly vulnerable. The financial terms were £3 million as a housing fund (with an indexation clause) and maintenance at the rate of £240,000 per annum for the Wife, "payable monthly in advance during joint lives or [the Wife's] remarriage" (I note that the terminology is in line with an order for periodical payments). In addition, maintenance for the children at the rate of £60,000 per annum for each until 18 years or the end of full time secondary education. All maintenance payments were index linked. These terms never altered. There were three clauses in relation to the children.
90) Given the timing of Mr. Z's correspondence, nothing happened before Christmas. The letter which enclosed the first draft referred to the document as a "pre- nuptial" agreement. Of course, it was not. It was not prepared with a marriage in mind but it was prepared with possible divorce in mind. If this had been a pre nuptial agreement, it would have stood the best chance of being enforced if there was (i) full disclosure, (ii) a proper period for reflection being at least 28 days prior to the marriage, (iii) proper independent legal advice with proper negotiations with (iv) no children born after marriage. (See the Green Paper "Supporting Families").
91) The parties spent Christmas at home with their children and then travelled to Megeve where they stayed for a short period. This was not, as I find, a happy period. Although there were periods when the tension lessened, for the most part the parties were arguing and the Husband raised the Wife's adultery on a frequent basis. Neither party was able to function at their best. In particular, I find that the Wife's state of mind worsened as she was isolated and alone. There were no signs of forgiveness from the Husband and he maintained pressure upon the Wife to comply with his demand that a post nuptial agreement be completed.
92) After the holiday, the parties returned home but family life was not back to normal because the Husband still found it impossible to forgive her. For a period she kept to the first two conditions that the Husband had stipulated but, in January 2005, she resumed contact with Mr Y. Her mother gave her a new "pay as you go" mobile phone and she used her computer to send e mails. She met Mr Y in Harvey Nichols for a short period.
93) In mid January the legal process recommenced. A second draft of the agreement was sent over by Mr Z on the 17th January 2005. The important financial terms remained exactly the same. The terms in relation to the children were drafted more precisely although they were broadly similar. They stated as follows "[The Husband] and [the Wife] agree that the children of the family will reside with each parent on alternate weeks with daily contact to the parents with whom the children are not currently residing save for such holiday periods as are agreed between them" and "[The Husband] and [the Wife] agree that [the Wife] will purchase the home referred to in clause 10 within approximately 3 miles of the school which the children attend unless otherwise agreed in writing". It was also stipulated that they would discuss and agree the children's schools.
94) By the 28th January 2005 Mr Z was writing "It is important for this couple to reach agreement. Therefore can I please hear from you urgently in relation to my second draft of the document". This note of urgency was, I have no doubt, at the Husband's behest. Of course, Mr Z appreciated that, for the agreement to have any chance of success, it should not be signed until the Husband's disclosure had been made available. Thus this draft was not yet capable of signature but the message was clear. The Wife informed me that the Husband constantly berated her to sign. I consider that this letter is a reflection of his persistence even with and through his own legal team.
95) On the 15th February 2005 Mr V wrote to Mr Z. In that letter he said "As you know, my client has been reluctant to sign this agreement from the outset. She does not believe that, given the current difficulties in the marriage, signing a post nuptial agreement is the best means of resolving these difficulties. She has reluctantly agreed to sign the agreement after many lengthy discussions with your client about how they can resolve the current situation. However, she has agreed to sign the document very much as a last resort. For this reason, I would like the words "without any undue influence or duress" deleted". It has been asserted on behalf of the Husband that this paragraph in the letter was added as part of the exit strategy devised by the Wife's advisers but I do not accept that submission. I accept the Wife's solicitor's evidence that it was written because it was a true reflection of the Wife's position. The letter also included a number of rather mild requests for information and explanation. This letter crossed with one from Mr Z asking for a response to the draft agreement.
96) The Wife's evidence is that, when the Husband heard about the letter of the 15th February, he was very angry and told her that she was not to ask for any further information but was just to sign. In a conversation with her solicitor the next day she referred to things as being "very bad at the moment" and the attendance note refers to her as sounding "quite shaken" and as "having been ordered to phone us by H, to tell us to stop asking H for disclosure….. as you should trust his figures and not ask for any more information". I accept the Wife's evidence that the Husband was continually putting her under intolerable pressure to sign. I accept that she was being accurate when she informed the solicitors that she had been "ordered" to telephone them to pass on the message that is outlined above. I have no doubt that the Husband's attitude put her under continuing, unacceptable and undue pressure.
97) On the 21st February the Wife phoned her solicitors again. The attendance note of the phone call details her as being "in a very bad state and very weepy". She said that her Husband had "gone berserk when he saw a copy of our letter …. He has told you that the marriage is over, you were meant to just sign the document not negotiate it". I accept this passage is an accurate record of what was said and that the Wife was being accurate in her reportage of the events between herself and the Husband. The note also includes the following passage "You said that you were only signing the document because of the children. You said that this morning H telephoned you from another phone in the house and provoked you to tears while you sat with your daughter in your lap. He does not know when to stop and will shout at you and make you cry in front of the children". I accept that this conversation has been accurately recorded and once again shows that the Husband was placing the Wife under undue, unacceptable and intolerable pressure.
98) The disclosure of the Husband's means (described as a "broad breakdown") was sent over by letter dated Thursday, 24th February 2005. The schedule showed his assets to be in the region of £60 million. The former matrimonial home was valued at £6.5 million gross less a mortgage of £3 million. Mr Z indicated that the figure of £3 million in the agreement given for the Wife's housing fund "corresponded to approximately half the gross value of the matrimonial home". As we now know this was, in fact, a serious underestimate as the house eventually sold for some in excess of £8 million.
99) In the letter of the 24th February 2005 Mr Z stated it was totally unacceptable to delete the words relating to undue influence and duress. He pointed out that it would be entirely inappropriate to allow the respective clients to sign a document if there was any suspicion of undue influence or distress. He retorted "My client is not putting your client under any duress or exerting undue influence". I do not consider that he was in position to make that statement given that he was not in the parties' home nor privy to any of the distressed telephone calls she was making to her lawyers. Consequently, I do not consider that this paragraph assists me in the overall determination of the issue of undue pressure or undue influence.
100) In February 2005 the Wife informed Mr K about her meeting with Mr Y in Harvey Nichols. He contacted Dr B because it had been agreed that she would only continue her therapy on the basis that she was not involved with him. Dr B gave instructions that it was proper for the therapy to continue. I do not know and so cannot make any findings as to whether this information was communicated to the Husband.
101) It is the Wife's case that "Throughout January, February and early March, the Respondent bullied and harassed me on an almost daily basis. The pressure was unrelenting, intense and debilitating. On some occasions I told the Respondent that I would sign the Agreement because he would wear me down and it was easier to say that in order to avoid arguments and tension. ….. if I refused, then that was the end of the marriage. ….. if I signed the agreement, he would consider reconciling with me; if not, then our marriage was over." I accept this evidence in its entirety.
During this period there were regular arguments and the constant themes were the Wife's affair, her perceived treachery and the need to sign the agreement quickly if the marriage was to have any chance of success. This was unacceptable and continuing pressure.
102) I am sure that the Husband made it clear that there was no prospect of a reconciliation unless the agreement was signed. No reconciliation would signal the end of the marriage. Continual threats and bullying of this nature amounted to undue and unacceptable pressure because it meant that the Wife could not think logically. I think that the Husband's behaviour affected the Wife's ability to make clear, calm or rational decisions and so, as I find, her will was overborne.
103) During this period the Wife continued to see Dr B. In his affidavit Dr B states "I did say to [the Wife] that the Husband] saw signing the post nuptial agreement as good faith. I did also say to her that, so far as I could be aware that if and when the marriage was restarted the post nuptial agreement would be put into a bottom drawer and forgotten and so far as I was aware under English law that on the vast majority of occasions post nuptials were not binding". I consider that this was most unfortunate advice.
104) The Wife was wholly unaware of the doctor's real role as outlined above, she trusted him and thought he was an honest broker. Given his position in the family as friend and counsellor over the years she probably trusted him more than her own solicitors (with whom she had little acquaintance and who had been chosen for her by her husband). The doctor's comments were incorrect and he was, as I have already found, the Husband's man. I am convinced that the doctor's words would have reassured the Wife that there was little real disadvantage in signing the agreement, whilst there was a lot to be gained given that the marriage might then continue.
105) Dr B also states in his affidavit that the Husband " became increasingly frustrated at the lack of progress in signing the post nuptial agreement which would allow him that leap of faithful [sic] to resume the marriage". I accept this evidence which mirrors that of the Wife concerning the Husband's attitude.
106) The Wife's mood remained very low during the early part of 2005.
107) By mid 2005, Mr K decided that she was definitely suffering from depression and he referred her to a Consultant Psychiatrist called AV. He diagnosed mild to moderate depressions and his reports states "The precipitating factor appears to be her marital problems. Other elements of aetiological significance are her unsettled upbringing with frequent moves and the unhappiness she experienced as a result of her parent's marital problems, which in turn seems to have contributed to the development of an anxious and possibly co-dependant personality, with a tendency to self-criticism, a low self-confidence and poor self-esteem". Having observed her in the witness box this description seems to me to be both insightful and accurate. It is now clear that her depression was building over the months =prior to this referral. Having reviewed the evidence it is probable that she was suffering from mild depression by early March.
108) I am sure that the Wife wanted the marriage to continue and it may well be that that was also the Husband's wish but he was, as I find, quite determined that, if a reconciliation did occur, it would only be on his terms.
109) Despite the Wife's wish to remain within the marriage, she was unable to keep to his second condition. At some stage, she contacted Irene. When the Husband discovered this fact, he tolerated it. However, life at home continued to be what has been described as a "roller coaster" of emotion. Mr Az told me that things were calmer in February but I do not accept that evidence. I think that some periods were calmer but there were still frequent rows and the parties were often deeply upset and at odds with each other. I am sure that this was affecting their children. I am clear and so find, that the Husband was becoming increasingly impatient about the Wife's failure to sign the agreement and increasingly domineering towards her.
110) The Husband told me that, when the adultery was first discovered, the Wife had been very supportive to him. She told him that she would always be there for him and that it would take about a year for him to learn to trust her again. He said that, as time passed, she became more distant again which he now puts down her re-establishing contact with Mr Y. He may well be correct but that does not explain the entire situation. I consider that his continued overbearing and demanding behaviour towards her took an increasing toll on her with the result that she was worn down and overborne by him.
111) I accept that she did resume her affair with Mr Y. I do not know when the physical relationship recommenced but I am clear that she did commit adultery with him on the 8th March 2005. On that day she went to the Athenaeum Hotel, ostensibly for some form of beauty treatment but, afterwards, she met Mr Y in a bedroom. She has said that they met only so she could finally say goodbye. It may be that she meant finally to end the affair but they did go to bed together. At a later date she admitted this adultery to the Husband. She told him the truth when she made that admission.
112) On 8th March 2005 the Husband was in New York on business. In the late afternoon (New York time) he phoned her and, as I find, they had a blazing row. It is the Husband's evidence that the call lasted an hour (and made him late for his business meetings). The call would have been in the evening UK time. The Wife asserts, and I accept, that the Husband told her that he was coming home the next day and "if I did not sign [the agreement] before he arrived back in England on the morning of the 9th March, the marriage was over. He said that he was gong [sic] to "destroy" me and that under Lebanese Law he would get away with giving me nothing". The Wife was challenged about these allegations but I am convinced that she has told the truth. As a result of the call the Wife knew that she could prevaricate no longer.
113) The next day the 9th March, she left the former matrimonial home in the morning and went to ZZZ's Head Office. She had lunch with business colleague(s) and then went to Bond Street to shop or run errands. She was driven during the day by Mr Az. He says that she appeared to be normal and was calm. But I do not accept this evidence. I am convinced that she was in turmoil. She may have gone through the motions of fulfilling her commitments but that does not mean that her mind was clear. I accept that the Husband telephoned her from Heathrow Airport on the morning of the 9th and asked if she had signed. When she told him that she had not, I accept that he then said to her that "he wanted it signed by the time he returned to the house later that evening. If not, then I was not to be in the house. I panicked for the rest of the day, not knowing what to do".
114) The contents of the Husband's calls late on the 8th March and on the 9th March and his demands amounted to undue and unacceptable pressure because they affected the Wife's ability to make clear, calm or rational decisions. I find that her free will was overborne.
115) Just past 7pm on the 9th March whilst she was travelling in her car, the Wife telephoned Mr V and informed him that she could not go home unless she signed the deal. Of course, in the light of the Husband's position, no signature would signal the end of the marriage. The Husband told me that he was not certain that he would have ended the marriage if she had not signed but she did not understand that to be his position. He had been very clear to her that if the deal was not signed, she should not come home and the marriage would be over.
116) At 7 pm Mr V was at a dinner near Sloane Square when his mobile phone rang. It was a fluke that he heard the call. He told me that it was an "an exceptional call" and he described it as "an SOS". He said "My recollection is that there was a finality about the situation, that although my advice had been "don't sign" and I think if Mrs A had been with me I would have tried to have a conversation with her and go through the issues again. This was a brief conversation for two reasons: One I was not in position to have a long conversation and secondly, something had happened, a decision had been made and Mrs A felt she had to sign the document and I had to provide the means for it to be signed that night". He described the call as "Pretty awful. It was a very distressed call. My experience is that many clients at the time when something is going seriously wrong in the marriage or immediately after the breakdown are very stressed and you can tell from the tone of their voice and the look on their face, which is often very drawn and white, that they are going through turmoil and are in a bad way and I certainly already had prior experience of that in Mrs A's case. This call I would regard and I regarded at the time and I regard now as a desperate call". I accept that description as being entirely accurate.
117) Mr Az was driving the car that night. Of course, the Wife did not know that he had previously been spying upon her for a considerable period and had collated the evidence of her adultery. Mr Az has described the call and what happened thereafter but there are a number of inaccuracies in his account. He says "She started to cry. She repeated that she was going to sign because she had promised the Respondent. After the end of the conversation she recovered quickly and talked to a friend about a social engagement". This version seeks to give the impression that in some way the Wife was faking her distress. I discount this entirely. In fact, I found Mr Az a most unsatisfactory witness. He is clearly in the Husband's pay and his loyalty lies only to him. At certain times in his evidence he appeared very uncomfortable and at the end he made eye contact with his employer (the Husband) and received a nod of approval from the latter. I am clear that the Wife was in a dreadful emotional state.
118) Mr V phoned his office. By chance a young trainee Ms M was working late. She had not been involved in the case at all. Mr V asked her to try and get hold of the Assistant Solicitor, GG, and get her back to the office. He explained that the client was coming to sign a document. The client was to take the original when she left and copies were to be retained.
119) The Assistant Solicitor was shopping in Regent's Street and returned to the office. She arrived at about 7.30pm. The Wife had arrived shortly before that time.
120) During the meeting the Wife was in a dreadful state and was very tearful. She was, as I find, in no fit state to sign any agreement. She was not thinking clearly and genuinely felt that she had no alternative but to sign. During the meeting she was advised not to sign but she signed only because she believed that she had no effective choice. A detailed attendance note was made of that meeting. It has been the subject of intense scrutiny and I deal with it below in the section dealing with the serious allegations made against her solicitors.
121) During the meeting the Assistant Solicitor crossed out the two terms in agreement relating to the children. Apparently, there had been some discussion about dealing with these points in a side letter. That letter was never prepared.
122) The meeting lasted about 1 ½ hours. The trainee told me that she had never seen a client so distressed. Even allowing for the fact that her experience of clients was limited, I accept her description of the level of the Wife's distress. It has been submitted that the Wife's anguish was only a manifestation of her moral dilemma because she knew that she had committed adultery with Mr Y the previous day. I accept that this might have been part of her torment. Indeed, a passage of the original attendance note that was omitted from the final version (and which has caused so much angst in relation to the solicitor's alleged misconduct) reads as follows "You said that you wanted to be in good faith to your Husband and you did not know if you wanted to be in your marriage any longer, your husband wanted you to love him". Others have had difficulty in interpreting what this means (and I can understand that, given the solicitors did not know that the Wife had been with Mr Y on the 8th March). However, I am clear that it expresses the Wife's wish to act in good faith and establishes her not being sure if she really wanted a reconciliation. If this was her state of mind, as I find it was, then the only reason she can have signed the agreement on that night was due to the fact that she felt she had no alternative. This is supportive of (and not contradictory to) my express finding that she was acting under undue pressure or, expressed another way, as a result of the undue influence of her Husband.
123) I am clear that the reason for her signing was her belief that she had no alternative. She understood that either she signed or she could not go home and that effectively meant that her marriage was over. That intolerable, undue and unwarranted pressure had been caused by the Husband's behaviour and his ultimatum. I repeat I am clear and so find that the Wife's free will was overborne as a direct result of the threats that the Husband had made to her over the previous 24 – 48 hours and his course of conduct since the 9th December. By acting as she did, the Wife bought herself a breathing space but had manifestly acted to her disadvantage whilst under duress.
124) Mr Az drove her home. The Husband told me that she came in and told him that she had signed. She gave him the document and then retreated to her room saying that she was exhausted and could take no further arguments that night.
I accept that evidence. She was, as I find, emotionally, physically and mentally exhausted. He said that he was surprised by her reaction as he had expected her to be happy. His evidence only indicates how he lacks sensitivity and confirms her assertion that she had, in effect, been browbeaten into submission.
125) The Husband informed me that he signed the agreement on the 11th March and that Mr Az took it immediately to Mr DS. I do not accept that evidence because Mr DS's office has no record of it ever being received. The signed copy only emerged when Mr Z produced it on about 25th April shortly before divorce proceedings commenced in May. I therefore consider it likely that the Husband only signed it at about that time.
126) I note that the Husband signed the agreement with the clauses relating to the children having been expunged. This despite his evidence that he regarded those clauses as being of prime importance. His actions reinforce my finding that by March (at the latest) it was the financial terms of the agreement that were of prime importance to him because he was seeking to gain a financial benefit by taking advantage of the Wife's genuine desire to remain within the marriage.
127) The parties then had a very unhappy holiday in Courchevel. It is clear that during the holiday, the Wife returned to London and saw Mr Y in Selfridges. When the Husband became fully aware that his Wife was still involved with Mr Y, the divorce proceedings began.
The application of the Law to the facts as found
128) For the avoidance of doubt, I find that this post nuptial agreement was offered on a take it or leave it basis at the time of and in the throes of emotional melt down and was stipulated to be the only way in which to save this marriage. It was also in play at a time when the parties were living in the same household, were habitually arguing and where the Wife (on everyone's evidence) was being subject to constant questioning and arguments about her affair.
There was no time for careful reflection. The Wife informed the Court that the Husband pressurised and bullied her to sign from the outset. I accept her evidence on that point. Once he had decided to countenance the possibility of a reconciliation, I have no doubt that he told her that she must abide by all his conditions without demur and she must sign the deal as it arrived. He made it clear that, if she did not, there would be no reconciliation. As the Husband knew that she wanted above all else to save the marriage, felt overwhelmingly guilty and did not want her affair to destroy her or children's lives, his ultimatum about the agreement being a pre-requisite to the marriage continuing put her under severe, undue and unacceptable pressure. I find that she was given no effective choice and her free will was overborne. I am absolutely satisfied that the Husband made his position abundantly clear to her whenever the matter was raised. He used his dominant position both emotional and financial (in the sense that he knew she had no financial independence) to ensure that she felt that she had no alternative but to sign the agreement. On the 8th and 9th March he told her that she could not come home unless she signed it. She signed the agreement at about 8 pm on the 9th March only because she knew that he meant it and she had no realistic alternative if she wanted to return to her home (to be with her children) and to give the marriage a further chance.
129) The Law as set out above, characterises this type of behaviour as undue pressure and undue influence. For these reasons I will not implement the terms of this agreement.
130) In addition, as I have found, the agreement was not premised on fairness, it was calculated by the Husband and his commercial lawyer on the basis of what the Husband was willing to provide. It was devised with the purpose of being either a golden handcuff, or a cheap pay off. As a result of the Husband's behaviour towards the Wife, there was no proper opportunity to negotiate its terms. For these additional reasons it would be wholly unfair it implement its terms. It would also be unfair to use them as a starting point with which to judge the fairness of any award.
Consequently, in this case, I will apply the Law in accordance with Section 25 Matrimonial Causes Act 1973 as interpreted through Authority.
The accusation of a strategy devised by the Wife and her legal team
131) On the third day of this trial the Husband's Counsel cross examined the Wife on the basis that there had been a strategy devised between her and her solicitors to set up circumstances whereby a case of duress could be placed before the Court with the best chance of success. When this point was raised I specifically asked Counsel if this assertion was made against the solicitors involved in the case and he confirmed that it was. I considered this to be a very serious allegation against professionals and I made sure that this assertion was being maintained to be told firmly that it was. I had noticed that, in his written opening, Counsel had indicated that the firm had been "marshalling a strategy" and had been "pretty unprincipled" but (perhaps unwisely) I had not taken those points to be an assault on their professionalism or integrity.
132) The factual basis for this accusation arose in the following circumstances.
a) At the FDR on 3rd February 2006 and, in the light of the Wife's case that the agreement should not be upheld, Mr Mostyn QC (acting for the Husband) indicated, quite properly, that he wished to see the Wife's solicitors' attendance notes covering the relevant period.
b) No steps were taken to seek formal directions from the Court and, in fact, nothing happened.
c) On the 12th September 2006, the Wife's advisers, without prompting from the other side, sent over the typed attendance notes. I note that they had not used them at an earlier stage in the proceedings. I am satisfied that they were only sent over because of the informal request made at the FDR.
d) Nothing further happened until Wednesday the 25th October 2006 (some 3 working days before the commencement of this trial) when the Husband's solicitors asked for the original manuscript version of the notes taken at the meeting. The request was repeated on the 27th and 30th October (the 1st day of the trial).
e) The initial response was that there were no such notes but a search was undertaken. Ms M (the trainee solicitor) retrieved the note book which dealt with the meeting on the 9th March. The notes were sent over to the Husband's team on Tuesday 31st October (part of my reading day) but no-one directed me to this document until the following Thursday during the trainee solicitor's oral evidence.
f) The Assistant Solicitor involved in the case (GG) was abroad in Japan on sabbatical. Her files were retrieved from storage in Cornwall and were made available to the Husband's advisers on Wednesday1st November.
g) Once the manuscript notes became available it was clear that at the end of Ms M's note of the meeting of the 9th March the phrase "make as bad as poss" had been written. Those words became the basis of the line of questioning that the Wife and her lawyers had been involved in a "strategy" to give the wife an exit route. I was clear that the manner in which the accusations were first being levelled were such as to seek to impugn the professional integrity of the two solicitors and trainee involved.
h) In the light of this, I called for this part of the Husband's case to be reduced to writing and I asked that Counsel consider the manner in and level at which these allegations were being put before me. His response to this was a written document which, I consider, to an extent modified his earlier position but still maintained that the Assistant Solicitor had "lapsed in her professional duty" in the instruction in relation to the preparation of the attendance note of the 10th March.
i) As a result of the accusations levelled the partner in overall charge of the case (Mr V) filed an affidavit and was later cross examined by Mr Mostyn QC.
j) Ms M had already deposed to an affidavit and she was also cross examined on this point.
k) The allegations against the assistant GG seemed to me to be so serious that she must have the right to file an affidavit and be cross examined if she wished. She then filed an affidavit. As she was in Japan, her evidence had to be taken by video link on the 7th November.
l) It was necessary to use the video suite at the Bar Council offices to take her evidence. In fact, this was the second occasion during this trial, that it had been necessary for the Court to use those facilities (because a valuer in the Lebanon gave evidence in this way). In the light of this both parties' legal teams knew what the facility offered.
m) GG was in the witness box for 1 ½ hours. I would have expected a full transcript to have been made available of her evidence. Indeed, the evidence of the other solicitors involved in this part of the case was transcribed immediately on a daily basis by the Husband's advisers and was used, inter alia, as a basis for further cross examination.
n) It was only when all parties had returned to the RCJ, that I was informed by Mr Mostyn QC that no transcript would be available because there was no tape of her evidence. This essential facility is provided at the Bar Council video conference suite but it has to be requested. Both parties must have (or ought to have) known that this evidence was important but neither informed me or took any steps to have the evidence recorded. The result is that the Husband's team of solicitor, his assistant and junior counsel composed such note as they could and this was reviewed and revised by the Wife's team.
o) I am clear that, if important and disputed evidence is going to be given, then it must be recorded. I should have been made aware of the difficulty before the evidence was given (and not after). I have no doubt, given the resources in this case, that arrangements could have been put in place to deal with this deficiency.
p) I am not sure that the composed note of GG's evidence will convey the manner in which her cross-examination was conducted. The tone was aggressive and, at times, hectoring. I felt that the witness was beleaguered by the intensity of the questions that were put to her. She was often on the verge of tears and required a short break. For avoidance of doubt, I consider that she was telling me the truth at all times and was only upset by the manner in which she was being asked the questions and the fact that her professional reputation was being impugned.
q) In the course of her evidence, Mr Mostyn QC put to the witness that the important attendance note of the 10th March 2005 was numbered version 5. This fact was picked up from footer notation. Apparently, even though this document had been in the possession of the Husband's team since mid September, this was the first time that this point had been spotted. Mr Mostyn QC called for the earlier versions and I directed that they be produced if they were available.
r) Those documents were produced on the 8th November together with an affidavit from the IT expert within the solicitor's firm. He confirmed that there were 5 versions but explained that the computer automatically up numbered the footer if the document is reopened. Thus, in this case, although the document has 5 versions there are only 3 which are, in fact, different. Two versions having been caused by this up numbering process.
s) The relevant history showed that the first version of the document came into being at about 11.16 am on the Thursday, 10th March. It was typed by a general pool secretary (Miss JA). I accept that this means that the trainee had dictated the note earlier that morning. The second version was caused by Miss JA opening the document at about 11.30 am but there are no changes.
t) The next computer record shows that corrections to the document were typed up by the trainee's own secretary (CF) at about 11.23 am on the next day Friday, 11th March. Ms M told me that, although she could not recall the creation of this precise attendance note, that history did not surprise her because it would be her usual practice to correct any attendance note once it returned from the typing pool. Most of the changes she made are stylistic although Mr Mostyn QC complained at the change of the phrase "You said that your Husband had told you yesterday he could get away with giving you nothing under Lebanese Law. GG said that you could ignore this" to "You said that your Husband had told you yesterday that he was going to destroy you, could get away with giving you nothing under Lebanese Law. GG said that you could ignore this".
u) There is no explanation for the delay of one day in respect of these corrections but I do not consider that anything sinister can be read into this fact. I have little doubt that, working in a busy solicitors' office, this young trainee (who was not assigned to this case) had many other jobs to do. Version 4 is timed at 11.46 am but shows no changes.
v) Version 5 was saved on the trainee's own computer on Monday 14th March at 19.24. This document shows a number of changes which are mostly stylistic but has some of substance. Most noteworthy is the omission of the phrase "you said that you wanted to be in good faith to your Husband and you did not know if you wanted to be in your marriage any longer, your Husband wanted you to love him".
133) As to the specific (and, as the case developed, somewhat modified) allegations I understand them to be as follows:-
i) There was a strategy, plan or policy formulated at the original meeting on the 22nd December or shortly thereafter to ensure that the Wife had an exit route if she signed the agreement. The assertion is that a decision was taken to try and organise things so the Wife, were she to sign, would be in the strongest position to argue that the agreement was unfair and should not be upheld. This is supposedly confirmed by the fact that, during discussions between the Wife and her advisers on that date, it was pointed out to her that this type of agreement would be binding unless there was inadequate disclosure, no proper negotiation or she was subject to undue pressure or duress. It is not now suggested that this "strategy" was improper although "it might be thought by the man in the street as unprincipled".
ii) The next assertion is that the letter written by the partner on the 15th February asking for the words "without any undue influence or duress" to be removed from the agreement was in pursuance of this policy or plan.
iii) That attendance notes were drawn in such a way that the extent of the Wife's unhappiness was given as much graphic prominence as was possible consistent with the truth. However, it is only on the 10th March that this became improper.
iv) That it would be professionally improper to state in attendance notes words that were not in fact said or deliberately to omit words of importance that were said. That would be deliberately misleading and a breach of professional conduct. This allegedly occurred in respect of the attendance note of the 10th March when the line of propriety was crossed. Several specific reasons are advanced to support this allegation. In particular:
(a) The handwritten note which includes the phrase "make as bad as poss" which it is asserted is only open to one interpretation namely that the Wife's distress should be magnified in its description to the point of exaggeration. It is accepted that this is not an instruction to falsify but is an instruction to overstate and represent disproportionately.
(b) In giving the instruction to "make as bad as pos" the assistant solicitor GG lapsed in her professional duty.
(c) That words "want to act in good faith- don't know if want to be in your marriage – wants you to  him – right away" appear in the manuscript attendance note but do not feature in the final type written version.
(d) The trainee included the words in her original and amended draft as follows "You said that you wanted to be in good faith to your Husband and you did not know if you wanted to be in your marriage any longer, your husband wanted you to love him". This was improperly removed in the final version by GG or Mr V in order to slant the attendance note which, if the "good faith" sentence had been included, would have exonerated the Husband from the suggestion that he had applied undue pressure/influence on his wife before she signed the agreement.
(e) The addition of the phrase "he was going to destroy you" is complained about as adding unwarranted emphasis.
(f) The Firm in pursuance of their objective on the 10th March caused an attendance note to come into being that was as bad as possible and that was not legitimate.
(g) The oral and affidavit evidence of the witnesses in relation to these omissions and addition in relation to that attendance note was false and confirms the strategy was being implemented.
(h) A statement in Ms M's affidavit that "[GG] told Mrs A that her advice and Mr V's was still that she should not sign the agreement, but Mrs A said that she had no choice" is an invention and is untrue because neither these words nor any version of them appears in either the typed up or manuscript attendance notes.
(i) The affidavit of Ms M gives an unacceptably attenuated version of the Wife's movements on the 9th March.
134) The conclusion drawn by the Husband's team is that the actions taken by the Wife's solicitors in pursuance of the plan they devised " which was always perfectly proper until 9th March" must, in the light of the above and by implication, have been improper after that date.
135) I am clear that, before allegations of this gravity are made, there has to be prima facie evidence upon which to make them and the client must give specific instructions for them to be advanced. Counsel must clearly set out the detail in writing before any witness falls to be cross- examined. Mr Mostyn QC had not taken this latter course and that is why I directed that he must effectively plead his case. At the time this written document came into being, his allegations were based only upon the type written attendance notes and the manuscript note "make as bad as poss". In fact, he made it clear that, had it not been for the latter phrase, an active strategy might not have been suggested. This seems to me to have been slim evidence upon which to make very serious allegations. I accept that the Husband and his team were always entitled to investigate the various inconsistencies between the documents, being the hand written notes, typed attendance notes and affidavits. I am also clear that those words required a full and proper explanation. But I consider that it would have been much more prudent for Counsel to reserve his position, to investigate and to highlight concerns rather than to impugn professional integrity as the effective starting point, particularly given the evidence upon which the allegations were based.
Findings in relation to the alleged strategy
136) I will now set out my specific findings. I accept the evidence of the 3 solicitors involved that none of attendance notes (whether handwritten or typed) are a verbatim record of any meeting. I accept their collective evidence of the manner in which these type of attendance notes are created. I understand their evidence to be that it is the general practice for the junior member of the team to prepare the first draft and correct it after typing. It is then checked by a senior member of the team and corrected by that person if deemed appropriate.
137) I accept the evidence that the ethos of this firm is to present accurate and honest attendance notes which may be full or graphic but which are never presented in an exaggerated, dishonest or misleading manner. I accept that this code of ethics pervades the firm and is inculcated into the junior staff from the start of their training. In light of this, I am fully satisfied that the trainee and Assistant Solicitor knew this important code and maintained it at all times.
138) I accept the combined evidence that no attendance note is false or has been prepared in pursuance of a plan or strategy to give this Wife an exit route. I shall deal with the most important one of the 9th March in more detail below.
139) I accept attendance notes are often written at speed and include most (but not necessary all) relevant information. As a counsel of perfection they should include all salient points but the fact that points are missed out, words are changed or later emphasis is added does not mean that the record is inaccurate. In the real world, attendance notes will often be imperfect records of meetings and therefore may not stand up to line by line forensic scrutiny but that does not mean that they are false or misleading.
The allegation of a strategy from the outset
140) The Wife was sent to see Mr V and informed him that she had come to see the firm in pursuance of her Husband's wish that she sign a post nuptial agreement. She was clear that it was a pre-requisite to the marriage continuing and that she wanted to effect a reconciliation. At the first meeting (which lasted some 2 hours) neither the Wife nor the solicitors present (Mr V and his assistant GG) knew the precise terms of the deal on offer but they did know that the Husband wanted (i) shared custody with a proviso that the Wife would not to leave the UK and (ii) a requirement that she would not claim against his business and would accept monthly maintenance. The solicitors' record (only a hand written attendance note) indicates that the Husband wanted an agreement drawn up so that the Wife would not take "his £ or the children". There is a note "not sure that he treats W as his equal". The Wife reported that her husband was "angry, sad, verbally abusive since the affair. He was not v. popular, v. protective –not allowed anywhere without a driver/bodyguard". Later the record notes "you have admitted that [you were] wrong but can't be subject to conditions and be berated for evermore". The note states that "H wants an agreement signed before Xmas". I consider that that is an accurate record of what the Wife told the solicitors at that meeting. It is confirmatory of my own findings after hearing the parties' oral testimony on these relevant events.
141) That attendance note also sets out that the Wife complained of being tired having only 4 to 5 hours of sleep a night and no time alone. The advice given by Mr V was to the effect that the Wife should not sign any such agreement and "Not negotiate in a day. Strongest possible advice for you [i.e. the Wife] and for Husband not to do this now. It will destroy the marriage and then you [i.e. the Wife] are prejudicing your position on divorce". She was also advised "Don't succumb to pressure to sign. Whatever figures he puts in the agreement they will be less than your entitlement and will probably trigger a divorce".
Mr V advised the Wife, quite properly, in terms of the Law. I consider that it was appropriate to inform her of the binding nature of the agreement. I have no doubt that the advice given was proper and appropriate. The reference to pressure was included only because the Wife appeared to the solicitors to be under stress, it was not added to the note for any sinister reason as the first stage of or preparatory to the formulation of a plan or strategy. I accept the evidence of GG that these solicitors were not even sure that this lady would become a long term client or that they would be required to implement any agreement or deal.
142) As a point of chronology the 1st draft of the agreement arrived the next day.
143) The next meeting took place on the 25th January 2005. It lasted some 2 ½ hours. The attendance note reports "At the weekend you had several rows and decided that it was best to separate. He said that he could not trust you any more. You felt quite relieved about the decision. H was going to leave home but then decided to stay and it had been difficult ever since. H wanted to sign the document and get it over with. The problem is you are not sure that you trust H any more. He woke you up at 4.00 am this morning in order to talk about things".
But it continues
"You said that you think that he loves you so much and more than anyone else in the world. He is unhappy about going into Counselling and has told you that he despises you at times. You are willing to give the marriage a try but you are not sure that he is. He wants a guarantee now and that is why you do not trust him "
Later it states
"You wanted to sign something initially to show your good faith, but you think that H is treating you like an area of his business life. You have seen a different side of him, one that is hard and mean. You believe his wealth will double or even triple in the next few years and that is why he wants you to sign it".
The clauses of the agreement were explained to the Wife and she is reported as saying that if she did not sign the document she thought that it would break down "the process of therapy for [the Husband]".
144) The attendance note then sets out details of an intervention by the assistant, GG. I accept her evidence that it was unusual for her to speak in the meeting and that it was not really considered appropriate. The note refers as follows
"[GG] said that if you sign the document now it may not be upheld if you could argue that you were put under enormous amounts of stress and that there was undue influence. If you did not negotiate the document and you did not receive full disclosure it was unlikely the document would be upheld. [Mr V] agreed, but said that this was a very risky strategy. He also said that the law has moved on and in the future it may have gone even further. In the future this document could be upheld, although by signing the document straight away you would avoid painful discussions, you ran the risk that you were getting much less than you could otherwise hope to receive"
This passage is asserted to be the foundation of a strategy to make sure that the Wife could exit the agreement if she did, contrary to advice, sign it. I totally disagree with this interpretation of that passage. I accept GG's evidence that this was an unwelcome intervention by a junior solicitor. That said, she was correct in her statement about the various possible ways that an agreement might be overturned. I am clear that GG was not seeking to advise the client to take those steps. Mr V immediately stated that it would be a "risky strategy" only because he was discouraging the use of this type of scenario. He explained that the Law had moved on. It is well known within the profession (and I take judicial notice of this) that the Courts have in recent times placed increasing weight on agreements made between parties after proper disclosure and full legal advice. Far from being the commencement of a strategy, I accept the solicitors' evidence, that it was a proper explanation of possible ways in which an agreement could be overturned. I acquit the solicitors of any base motives in relation to this entry.
145) As a matter of chronology the next attendance note relates to a phone call between Mr Z and Mr V. It reads as follows "Attending Mr Z on his telephoning when he said that your husband was going to be adamant about you singing the Post nuptial agreement. He appreciated that you wanted a clean break but the provision offered would not stop that happening" [emphasis added]. As I have already noted by this Mr Z must have envisaged this occurring through the capitalisation of a periodical payments order.
146) The attendance note of 1st February 2005 states
"You said you felt responsible for what has happened and as a result think that you should sign the agreement. You said that your children will suffer enormously as a result of your foolishness and you therefore feel that you should do what you can to improve the situation for them. H has told you that he does not know if he can forgive you. He has imposed restrictions on you such as not talking to your oldest friend. He has told you that he has instructed Mr Z and that there will be no negotiations"
"[GG] said that you could sign the agreement now but it would be risky. You would have to sign it knowing there was a possibility that it would be upheld and this was what you would end up with. Even though you were being pressurised into signing it, the law may not see it this way in the future".
This advice was proper and I do not consider that the inclusion of the word "pressure" in that attendance note was to seek to make a case for the future. I am clear that it was a response to a conversation with a client who was saying she was upset, who was giving details of a "big bust up" with her Husband the previous night and who was describing an obviously stressful existence.
The allegation that the solicitors did not pursue disclosure or negotiation
147) It has been asserted that, in furtherance of the strategy, Mr V decided that he would not seek full disclosure and would not seek to negotiate the deal. Mr V accepted that this is a stance which can be taken in the context of pre- nuptial agreements. But I did not understand him to accept that that was his course of action in this case. In fact, I do not consider that there was any real or effective room for financial investigation or negotiation in this case. On the 15th February 2005 Mr V wrote a letter to Mr Z in which he asked a series of mild questions (see above). The Husband's reaction to that letter as reported by the Wife and her consequent reaction meant that there was little that these solicitors could do to advance disclosure. Far from there being the implementation of a strategy of no negotiation or discovery, these solicitors had tried to discover further details of the Husband's means and were thwarted. They soon appreciated that in the light of the Husband's stance and its effect upon their client there was, in reality, no possibility of true negotiation. The mild questions they had asked had, as I have already found, provoked an unacceptable outburst from the Husband.
The phrase "make as bad as poss"
148) The main complaint is made in relation to the attendance note of the 10th March and the passage at the end of Ms M's manuscript notes which states "make as bad as poss". Ms M told me that these were not her words but were a record of what had indicated. She was unsure whether those were the exact words that had been used but she considered that the import was that she was to make her attendance note as graphic as possible as opposed to anodyne. She was to put in all the details. However, she was clear that she was not expected to exaggerate or be inaccurate. She was very clear that this was not an instruction to put forward a false case. I accept all that evidence. She also told me that the attendance note was accurate, and did not exaggerate or falsify what she had been a witness to that evening. She said the description of the client's extreme distress was honest. I accept her evidence and I acquit her of devising an exaggerated attendance note.
149) I accept that the wording is capable of misinterpretation. However, having seen and heard Ms M, I am fully satisfied that she did not exaggerate the type written note or falsify her evidence. On the 9th March 2005, she was working as a trainee solicitor (she has now qualified), she did not have a great deal of experience and had not been involved in the case before that night. It was mere chance that she was in the office at 7 pm on that fateful evening. In the witness box she struck me as a very truthful person without any guile and I am sure that she told me the truth.
150) In fact, when she was recalled, she told me that she could only tell me about the manner in which attendance notes normally come into being but she could not remember this precise note. She said that it was the practice of the firm that any attendance note which was drafted by a junior member of staff (save those of a few lines) was always checked by some-one more senior.
151) GG also gave me evidence on this point. She told me that she was not a strategist and that she did not recall using the words "make as bad as poss". She stated that she would never have asked anyone to write up a false or exaggerated attendance note. She told me that the document accorded with her memory of the evening. She was obviously offended and distressed at the allegations made against her. I found her to be an obviously honest witness and I acquit her of any professional wrong doing. The serious allegation made against her was, as I find, completely ill founded. I am not certain what words were used on that night but I accept that such instructions as she gave were to ensure that the attendance note was full, accurate and recorded the true facts that this client was very distressed.
The alterations to the attendance note of the 10th March
152) I will now deal with the specific points raised in relation to this document. These points only arose after the earlier versions of the document were disclosed pursuant to my direction at Mr Mostyn QC's request.
The addition of the passage including the word "destroy"
a) The wording which is complained about is "You said that your Husband had told you yesterday that he was going to destroy you, could get away with giving you nothing under Lebanese Law". I have already made a finding that I accept that the Husband did say this to the Wife and so I am not surprised that this word was added, when the text was reviewed by the trainee. I consider that it was added because it had been said by the wife. Once the trainee realised that she had omitted the phrase in her first draft but recalled that it had been said she was absolutely entitled to add it. Her hand written note would indicate that the phrase was used and I do not consider that it was included improperly or for any ulterior motive. I acquit the trainee of any wrong doing on this point.
Who is responsible for the amendments on the final version of the document
b) The trainee accepted that it was the firm's policy for all attendance notes (other than those of a few lines) to be checked by a senior staff member. She thought that this document had been amended by GG and this is what she told me in her original oral evidence. I am of the clear view that this was her assumption because GG had attended the meeting with her and I expect that she took the attendance note to GG. I see nothing sinister in the trainee's assumption that the changes were made by the assistant. As the Court was informed, at that time GG shared an office with the partner Mr V.
c) When Mr V saw the changes on version 5 he considered it was probable that he had been the author of the changes because (i) there was an alteration to the detail in the original conversation between him and the trainee (about which GG would have had no knowledge), (ii) the bulk of the changes were stylistic and he recognised them as his particular style and (iii) this was an unusual meeting, which had taken place late at night and as the partner in charge he would have wanted to check the attendance note himself.
d) He had no specific recollection of this particular note but doing his best, he believed that he had effected the alterations. Mr Mostyn QC was, apparently, astonished by this evidence which only emerged after versions 1 to 5 had been retrieved from the computer records because it was contrary to the earlier evidence of Ms M and GG. Ms M and Mr V were recalled to give yet further oral evidence on this point. I do not share Mr Mostyn's surprise or scepticism. I accept that Ms M may have been mistaken in her earlier assumptions but these notes were prepared 20 months ago. I am clear she made assumptions as to what had occurred. GG also thought it probable that she had made changes to the document. It may be that she did make some amendments as she shared the office with Mr V. I do not consider that any witness gave me deliberately false evidence on this point. If Ms M in her original oral testimony told me that she believed that GG had made the amendments that is because that is what she genuinely thought had happened. GG said that she made corrections because this was the firm's habitual routine. Once Ms M was informed that the document might have been amended by Mr V she was honest enough to tell me that she might have been mistaken. I doubt that the partner, Mr V, dealt directly with her and she was probably wholly unaware who had made the changes. In fact, her original evidence in relation to the alterations is peppered with remarks such as "I imagine she did" and the like.
e) I do not know who made the final alterations to version 5. It may have been Mr V or GG. In fact, as they shared an office, they may well have both looked at the draft and effected some changes. I am clear that the first and final versions bear a striking similarity and there has not been a wholesale alteration of the original prepared by Ms M.
The removal of the phrase including the expression "good faith"
f) Mr V thinks he was responsible for the deletion of "You said that you wanted to be in good faith to your Husband and you did not know if you wanted to be in your marriage any longer, your husband wanted you to love him". He told me that he would have omitted it because he did not understand what it meant. He was originally cross examined about the forerunner of this phrase (appearing as it did in Ms M's manuscript) and said that he did not know what it meant. He did not know that this point would arise again and so he has been surprisingly consistent about his failure to understand this phrase. He may well be correct that he did not understand it because he did not know that the Wife had resumed her relationship with Mr Y at the time.
g) The allegation by Mr Mostyn QC is that this phrase is a potent demonstration that, however unhappy the Wife may have been, her will was not overborne and that she signed freely. Hence, he asserts, its deliberate omission is a clear demonstration of wrongdoing by solicitors. I do not agree with his points. As I have already decided, this phrase does not mean that the Wife was accepting of the fact that she was acting in good faith. In order to procure his construction Mr Mostyn QC had to transpose the 3 parts of the phrase. In his submissions he kept using the phrase "You said that you wanted to be in good faith to your Husband and your husband wanted you to love him, you did not know if you wanted to be in your marriage any longer". Obviously this construction alters the meaning and was never included in any draft. Interpreting the phrase in the correct order, it is not possible to place his construction upon it. On the contrary, as I find, it is supportive of the fact that the Wife was under pressure. I do not believe that it was omitted for any sinister reason and I accept Mr V's explanation that it was removed because it was not understood. I acquit him of any wrong doing. GG has not been re-questioned on this aspect of the case and I do not think it necessary. If she was responsible for its omission I would not consider her guilty of any wrong doing.
Ms M's affidavit
h) I do not consider that Ms M's affidavit has been incorrectly drafted or that she gave me false evidence. I accept that the phrase "[GG] told Mrs A that her advice and Mr [V's] was still that she should not sign the agreement, but Mrs A said that she had no choice" does not appear in the manuscript or typed attendance note but I am clear that Ms M recalled it and that it was included in her evidence because it had been said. I have already made findings that this Wife felt that she had no choice on the 9th March. I do not accept the criticism that her attendance note was deliberately attenuated or was false.
153) I accept the evidence of all 3 solicitors. Each of them presented as wholly honest witnesses and I acquit each of them of any wrongdoing. They did not engage in any strategy or plan to give their client an exit route. Mr V and GG did their best to advise her in very difficult circumstances when she was clearly under (that which I have found to be unacceptable) pressure and, in the final analysis, they followed her instructions. The solicitors appreciated that these attendance notes might be seen in the context of later proceedings but I accept that they did not prepare them with that in mind. GG said that she wanted the attendance note of the meeting of the 9th March to be detailed and graphic because she was concerned that the client might complain at a later stage. It was put to her that she should have made the client sign a letter of exoneration. As a counsel of perfection, I agree that she should, but the agreement was signed at about 8 pm and I expect that all concerned wanted to leave the office. If there had been a plan to present a slanted version of what occurred I doubt that a young trainee would have been entrusted to undertake the drafting (which was not greatly altered). On the basis of the evidence that I heard and the documents that have been placed before me, I am absolutely clear that none of the allegations raised by Mr Mostyn QC are made out.
154) In passing I feel that I should mention that, in his written submissions, Mr Mostyn QC thought it appropriate (some might say disrespectfully) to remind me of my Judicial oath. In oral explanation he indicated that this was felt necessary because I had been instructed by the solicitors involved whilst I was at the Bar. I pointed out that I had also been instructed by his solicitors. I have no personal friendships with anyone in the legal teams in this case. I am not sure what to make of his submission save to record that it is entirely misplaced and demonstrates yet another lack of judgement in the conduct of this litigation. Dealing with these allegations has taken at least 2 days of Court time, hours of my time and some 16 pages of this Judgment. I do not consider that they were well founded and I will deal with the costs implications as a separate issue.
155) Both Husband and Wife struck me as somewhat immature personalities – perhaps because they have lived such a cosseted lifestyle.
156) The Wife. I considered the Wife to be truthful in her evidence to me about the pressure she was under from December 2004 to March 2005 when she signed the agreement. I thought that she was a fragile personality who was (and remains) in awe of her husband. She was much weaker than him in every sense. In general, I accept her evidence to me. The detail appears as set out above.
157) The Husband. I considered that he gave his evidence in a very controlled and measured way. He was obviously keeping himself in check. This was at odds with his general demeanour in my Court. I was able to watch how animated he became with his legal team when points arose with which he did not agree. At one point Mr Mostyn QC said to his client in a loud voice words to the effect "do you want to do this and I will leave". I have no doubt that he was a very demanding client. I also observed the nod of approval he gave to Mr Az on completion of the latter's evidence. The Husband expects to be obeyed, perhaps it is a feature of his upbringing and it was visible in my Court. I am confident that this aspect of his personality was much more evident in his own home.
158) Where his evidence differs from the Wife, I accept her version of events. I consider the Husband to be controlling, domineering and determined to get his own way. I am sure that he is devoted to his children and I believe that he has suffered genuine distress at the ending of his marriage. That said, once he had been crossed by his wife, he was resolute in his actions against her.
159) I have dealt with the other witnesses as I have related the history or dealt with my findings and I do not propose to deal with their evidence in any greater detail as my findings are clear.
160) When the Husband produced the post nuptial agreement he caused a schedule of assets to be prepared. It was presented on the 24th February 2005. On a broad brush basis it gave his assets as being some £60,000,000 in round terms. As I understand it, the schedule was prepared by his commercial solicitor with the assistance of the Husband's accountants and advisers. To ensure that the agreement had a proper chance of success, the schedule had to be accurate.
161) When his Form E was signed on the 27th September 2005 (some 7 months later), the Husband put his assets as being worth £22,492,544 (a very precise figure). He estimated his net income as being some £188,000 for the next 12 months, whilst putting his personal income needs at £232,000 odd per annum.
162) When this matter came before me on the 1st Appointment, in the light of the huge disparity in the figures for his net worth, I ordered that a reconciliation be produced for the purposes of the FDR (fixed for February 2006 before an experienced Judge of the division). The reconciliation was produced on the 17th January 2006. It was prepared by a Mr R (Husband's accountant) and KQ, a trusted employee of the Husband. That reconciliation produced a figure of £47,516,676. The document showed the differences in presentation between the figures given in the previous 2 asset schedules. In the main, the differences related to omissions in the Form E, including the value of wine (£11.7m), indirect interests in family trusts (£11.2m), a reduced valuation for some Lebanese Land (£2.1m) and a reduction in cash (£16.1 million). The notes pointed out that although some funds had been included there was $9.6 million in an indemnity fund in MA No 1 Trust and that the total ignored the fact that there was JAF litigation. The reconciliation took into account the continuing funding costs of the business since the post nuptial agreement (about 1 year). The running costs of some £5 million were noted through an increase in Bank overdraft, provision referred to as ZZZ group financial requirements and a loan from BA of £560,000 odd. This presentation would suggest the business was causing a monthly loss of some £400,000. As I have already pointed out several different figures emerge from the various papers as to the precise level of loss. However I take this reconciliation as providing a reasonable indication.
163) The FDR proceeded on the basis that the Husband was worth £47.5 million odd. It was apparently listed for only ½ day. That is not a sufficient listing for this type of case and it should have been listed for a full day so that proper consideration was given to the issues and to Directions in the event that the mediation failed. I fear that I am partially to blame for this situation having occurred, because I agreed to a reduced time estimate in order to secure a Judge with great expertise for the FDR. However, I am now convinced that cases such as this need a full day. In the event, no proper thought was given to Directions and no provision was made for any further case management. This is to be much regretted because, as far as I can determine, the case went into suspension for many months.
164) In late July 2006 attempts were made to fix a PTR before me but it was too late to accommodate it within my diary (given the Long Vacation and Circuit commitments).
165) The Wife's accountant Mr G prepared two reports. The second is dated 22nd September. His broad assessment of the Husband's net worth was £56 million of which £19.5 million was business assets and £15.7 million was land in the Lebanon/Syria.
166) The Husband's advisers produced a report from their expert Mr N on the 23rd October (5 working days before the commencement of this trial). He put the Husband's net worth at £20 million. This was a substantial reduction from the January presentation. Mr Posnansky QC for the Wife indicated his concern about this reduction at a late stage. It is unfortunate, but it only occurred because none of the parties' advisers put in place a proper structure for effective case management.
167) In reality, the accountants agree about the underlying assets. The difference in presentation relates largely to the application of various discounts by Mr N in his presentation, deduction for "loans" and contingent liabilities. A composite schedule was produced showing the differences. I have added my specific findings and it is now appendix 2 to this Judgment.
168) I found that both accountants gave considered and careful evidence. They were both patently professional and honest. I shall now deal with my findings in relation to the discounts, if any, to be applied.
a) Land in the Lebanon and Syria
The underlying value
i) The Husband owns a number of properties in the Lebanon/Syria and save for one plot, all are owned (i) with his mother and brother and (ii) with his mother/brother and third parties. Thus, he holds a minority interest in these assets. The properties consist of buildings/sites in Beirut and various other parts of the country, including the South close to the recent combat zone.
ii) Most of the properties have been valued for the purposes of this litigation but one called the Hotel CDA (in reality a plot) was given a value by the Husband in his Form E of $51 million based on a "professional valuation" (which has not been produced).
iii) I ordered that there be a joint valuation of the various properties but this did not occur. Instead, the Husband put in a written valuation by a Mr HH. The Wife then instructed the valuer (who had been proposed as possible joint valuer) a Mr MS who has 15 years experience and is a Court approved expert in the Lebanon.
iv) In the event, Mr HH did not wish to co-operate with the Court process (unless ordered so to do by the Lebanese Court). Accordingly, he refused to produce a schedule of agreement/disagreement and did not attend for cross examination (either in person or by video link). The consequence is that his evidence of value is untested and so I can place little or no reliance upon it. On the other hand, Mr MS was forcibly cross examined (via video link) by Mr Mostyn QC. I found him to be a reliable and honest witness. Accordingly, where the evidence of the two valuers differs, I accept the evidence of Mr MS.
v) Mr MS had prepared his valuation evidence before the recent conflict in the Middle East. Therefore, it was important to obtain his evidence about the effect that the Israeli invasion had had on the various holdings. He told me, and I accept, that 3 areas near the combat zone (specified in a schedule that he produced at H.117(b)) should be reduced by a factor of 15% but otherwise he said that values had not been affected. He maintained this position in relation to properties in Beirut even though there had been some Israeli action in the city. He told me and I accept that after any serious event, property prices in the city tend to freeze but they recover within a short space of time. He pointed to the fact that Mr HH's valuation had been undertaken shortly after the assassination of a well known politician had destabilised the country. However, shortly thereafter prices had recovered and then increased. He was confident that the same would occur after the latest invasion. I accept his evidence and all his figures.
The discounts applied by Mr N
vi) Appreciating the difficulty caused by Mr HH's position, Mr N did not use his values for his report save in respect of one building called the S market. As the difference in value between Mr HH and Mr MS was substantial he decided to take the mid point between the 2 values. In the light of my finding above this is not an appropriate deduction and so should be added back.
vii) Mr N applied a 40% discount for lack of control to the Husband's minority holdings in each property. He pointed to the case of Irvine v Irvine 2006 EWHC 583 (Ch). However, although the Husband has a minority holding, in most cases the other owners are his mother and brother. The Husband told me and I accept that the family wished "to get out of Lebanon" as soon as possible. Although relationships in the family are (and always have been) strained they have always acted in concert when it comes to realising assets. I am satisfied that, in financial matters, they act for their mutual, group benefit. Accordingly, I do not consider that any application of a minority discount is appropriate for the properties held by the family. This approach accords with the recent decision by Coleridge J in Charman v Charman  EWHC 1879 (Fam). It also accords with the long established practice in this Division, that underlying reality is the relevant test. As history indicates, the Husband will obtain his full share without a discount when family owned assets are sold.
viii) Using this logic, there will be no discount in respect of Lebanese properties or other assets which are owned by the family through a corporate entity in which only they have shares. This applies to AA SAL.
ix) The Hotel CDA plot is owned through an SAL in which the family have an overall 50% interest. The other holdings are held by 3 other individuals. I was told that they bought a 50% share of the business for $13 million some time ago. I have no information as to how a deadlock in this company might be resolved. The plot is worth (per the Husband) $51 million. I consider that it is appropriate for there to be a minority discount in respect of this holding. I accept the 40% discount applied by Mr N and so this property is worth £2,825,194.
x) The S market in Beirut is owned by an SAL in which the Husband has a 36.36% share. His mother has a 20.54% share and the remainder is owned by various third parties. I accept that it is appropriate to apply a minority discount to this entity but on the basis of Mr MS's valuation of $20,483,350. I do not accept that there should be any discount for it being in a War Zone. Accordingly, the figure for his share of the property is $4,468,647 ($20,483,350 x 36.36% x 60%). Using the conversion rate that has been applied throughout $1.785, the value is £2,503,443
xi) Other Middle Eastern entities which are owned by the family do not merit a discount.
b) Shares in CDL
i) This entity is a gaming house in the Middle East. These shares were originally held within AA SAL (owned as to the Husband 40%, his mother 20% and L 40%) but a portion was transferred out to the individuals in July 2006 in order to save some dividend tax. The family have a seat on the Casino Board by virtue of their overall share holding which in total represents 13% of the company. Unlike the entities listed above, these shares are traded over the counter in the Lebanon. The information that I have indicated that the price was $287.5 as at 26 October 2006.
ii) An associated family company manages the casino and this produces a healthy annual income. The Husband considered that it would be imprudent to sell any of these shares because it might put the management contract (which has been renewed to December 2007) in jeopardy. Although it is not necessary for me to make a specific finding, if maintaining a board place is an issue, then I consider it likely he will be able to "sell" these shares to his mother/brother.
iii) There is a 50% difference in the 2 values given by the accountants because Mr N has applied a 50% discount for lack of marketability. I remain unclear whether this is based upon (i) the Husband's perception of the need to retain the shares; (ii) perceived economic difficulties in the Lebanon or (iii) a combination of those factors. The first matter would not, in my view, permit of a marketability discount and, if the shares are quoted at a price in Lebanon, neither would the second. Therefore, I do not accept a 50% reduction on the basis of the evidence placed before me.
iv) Accordingly, the value which I attribute to those shares for the purposes of these proceedings is based on the quoted price.
c) ZZZ (UK and USA) and the other business ventures
i) The dispute as to the value of ZZZ (being about £1.1 million) relates to the discount, if any, to be applied when assessing the realisable value of the underlying assets.
ii) I have outlined the various business ventures above. The Husband obviously has a dream to emulate his father but, to date, he has been spectacularly unsuccessful and I am concerned about the overall viability of the ventures. The Husband was very positive in his evidence to me about his good "brands". Apart from the Club (which is severely loss making and is being marketed for sale), he told me that other ventures were at break even point and he expected profits in the mid term. I hope that he is correct but I have my doubts.
iii) Currently, he is supporting the overall enterprise at the rate of £5 million per annum (minimum). He does not have the wealth to continue this level of support and must rationalise matters in the immediate future. As I have already stated I did not get the impression from his evidence that he had any real business sense. His failure to deal with these losses, save by pumping in more and more funds, does not seem prudent.
iv) Assuming a loss rate of £5 million per annum since about 2001, it would seem probable that some £25 million has been expended on the business. In addition he has been paying for personal living costs. Even assuming that he had cash holdings of $97 million (say £54 million) in about 2001, he has potentially squandered half his cash wealth. I am concerned that, if this continues unabated, there will be little with which to support the Wife and his children. This is one of the reasons that I consider that capitalisation of her claims will be essential in this case.
v) The Husband told me that he accepts that he needs to find a partner for the Middle East business who can invest a similar amount of cash to his own level of investment to date (which he said was "about 6 million"). Such an investor should ensure that these losses stop or are reduced. This would have a positive effect on cash flow.
vi) The Club needs to be sold as soon as practicable. The relevant Agents think that it might be worth some £4 - 5 million, but there are problems relating to the company's tenure in the London Square and it will cost up to £2 million to resolve them. The Husband thought that he had invested £7 million in this venture but, I suspect, that this is an underestimate. Based on the evidence before me, he is likely to recover £2-3 million in the short term. The sale will have the added advantage that the annual losses (in excess of £1million) will also cease.
vii) Mr N detailed accumulated losses (to July 2006) in the UK businesses of £20.6 million. This supports my overall impression set out above but seems low. The accountants both agree that, because the companies are loss making, the business ventures fall to be valued on a net realisable asset basis. Mr G originally assessed the recovery rate at 25% of the book value of tangible assets but increased it to 33% in his second assessment. Mr N did not agree this approach and sought to reflect various categories (using 10 – 15% as his guide). The parties did not concentrate on the niceties of the various calculations (perhaps because the difference was only £1.1 million) and I have not been left with a clear impression of the precise calculations. In the final analysis, having read the reports again, I am persuaded that Mr N has carried out a fair analysis and I adopt his figures.
viii) The Husband has "invested" $78 million (roughly £43 million subject to exchange rate fluctuations) in his business ventures and they are assessed as worth some £8 million. Those bald figures would suggest a dramatic loss over a relatively short period. Mr N produced a reconciliation which showed how most of the funds had been used. I am not persuaded that this is accurate. Even so, the figures speak for themselves.
d) Trust interests
i) It is agreed between the accountants that the Husband is entitled to some £10.63 million within the AAF. Of this sum, £7.68 million relates to the expected proceeds of sale from the realisation of remaining assets by June 2008. The remainder due is already held in cash. Mr N reduces this sum by a factor of 50% for two reasons (i) The ongoing litigation with JAF and (ii) the uncertainty and risk that future sales will not materialise. I note that the Husband is no longer a party to the JAF litigation as the personal claim against him has been struck out (subject to appeal). I consider that a 50% deduction for these points is unwarranted. In similar fashion, I consider Mr G is too bullish in allowing no discount. There are some risks involved and there is a time lag to 2008 in respect of 72% of the value of the fund. No satisfactory evidence of other discounts was led and so doing the best I can I consider that 20% is the appropriate deduction for the level of risk involved.
e) The BA (Husband's mother) loans
i) Mr N has produced a schedule which shows loans from BA to her son. At the date of the Form E (September 05) and the Reconciliation (Jan 06) the loan was said to total $1 million. The Schedule of loans shows that between those two dates a further $4 million was apparently lent. It is asserted that those monies were repaid by 2 Bank Blom loans (which totalled $6 million). Mr Posnansky does not accept this explanation because the reconciliation does not feature additional Bank Blom borrowing. Loan documents were supplied in Arabic and therefore no-one could discern the date when they came into being. After the case had ended translations were supplied to me. They showed that the loans were dated the 18th January 2006 and were due for repayment in tranches from February 2008. This being the case, I am surprised that they were not included in the Reconciliation (even though it was dated the previous day) because it must have been known that they were about to be formalised.
ii) The loans from BA have been documented and carry interest at 2%. They are not secured save for the last one when the sum lent was $5 million. The total sums due to her are $12.4 million (£6.95 million) plus £300,000.
iii) I am satisfied that BA considers some $7 million of this sum as due to the Husband as a result of the windfall that she received as a result of AA's letter of wishes. I do not consider that she will press for the return of these funds. These funds will therefore be not be deducted from the asset schedule.
iv) The $5 million loan has provision for security under Part 6 (none of the other dollar loans have any such provision). I consider that this reinforces my finding that the $7 million will not be repaid. In fact, I doubt that BA will call for the immediate repayment of the $5 million unless her son can afford it. It is a soft loan that I will include in the asset schedule.
f) Other Liabilities
i) The difference is caused because Mr N has included the Bank Blom debt at $6 million whereas Mr G thought it was $4 million. During the course of the trial documents were produced which satisfy me that the total borrowing is $6 million and this is the figure that I deduct.
ii) I should note, however, that no explanation has been given to me of the total funds that the Husband has expended since this litigation began in earnest in mid 2005. Since September 2005 he asserts that he has borrowed a net sum from his mother and Bank Blom totalling some $14.4 million (about £8 million) plus £300,000. Neither Counsel provided me any analysis of the use to which those funds have been put. I know that the Husband has paid (i) the Wife's maintenance and rent (about £600,000), (ii) some £240,000 towards his own legal costs, (iii) about £5 - 6 million to the companies and (iv) £ ½ million on renovating his home. He told me that his own annual expenses were £250,000. His own cash resources have been depleted during this period and I consider that he has underestimated his annual expenditure to me. However, as no evidence was led on this point, I cannot make any specific findings save that his annual costs are more than he asserted in his evidence.
g) Contingent Liabilities
i) The sum of $9.7 million (£5.378 million) has been set aside by the Husband's No 1 Trust to abide the result of the JAF litigation. He has been dismissed as a personal defendant to those proceedings. However, the funds are being held "frozen" to meet a potential award against the trustees of the AAF. There is an application to strike out the action as a whole. The Judgment is awaited. The advice in Liechtenstein is to the effect that the JAF litigation will not succeed. I do not consider that the whole of the sum should be omitted from the schedule. However I do propose to make an allowance of 20% for the risk.
h) House owned by family retainer.
i) This is given a value of £60,000 by Mr G. It is de minimis in the context of the assets in this case. I decline to add a value because the sum is not based on a professional valuation.
Costs of realisation and tax
169) I pointed out to Counsel in this case that no attempt had been made in any asset schedule to calculate any deductions for tax or sale costs. I expect that the Husband is domiciled abroad but, in normal circumstances, some tax would be due if any funds imprinted with gain were remitted to this jurisdiction. I was informed that I could ignore this possibility. I do so in respect of all foreign sited and other assets. Sale costs will arise but once again no figures have been put forward and so I do not include any in my schedule.
The Asset schedule
170) The asset schedule which takes account of all the findings set out above is annex 2 to this Judgment. I consider that the Husband is worth about £40 million of which about one half (in general terms) is held in assets in the Lebanon and Syria. This figure broadly equates to the presentation that was made in January 2006 (£47.5 million) less the ongoing costs of funding the business, the family and the litigation.
171) The experts agree that at least £7 million can be raised almost immediately. Mr G considers that a further £4.77 million is easily realisable in the short term by the sale of wine stocks. I accept his figures and that wine of this amount can be sold within the next 12 months. Mr G also considers that a further £1.8 million could be raised on the sale of the club (after allowing for the costs of purchasing the lease) and I agree. He suggests that the Husband could sell his CDL shares to raise a further £3.6 million odd. Whilst I accept that this is possible, I suspect that the Husband would prefer to keep these shares if possible but they are an asset that could be used if necessary. Of course, the business will have a continuing need for cash in the short term if it is to survive whilst it is being rationalised and sales are being effected. I have no doubt that rationalisation must begin immediately and the Husband should not delay in the hope of improvement. Having heard all the evidence, I do not consider that liquidity will cause insuperable problems in this case and I am willing to hear further submissions on dates for payments once this Judgment has been absorbed by the parties.
172) It is my duty to apply the provisions of the Matrimonial Causes Act 1973 (the "Act") so as to produce a fair outcome. In particular, I have to take into account all the matters which are set out in Section 25 of the Act. I also take into account the ratios of White v White 2001 1 AC 596 and Miller and McFarlane 2006 1 FLR 1186 which have clarified the manner in which the Court assesses a fair outcome.
I remind myself of the following passage.
White v White
Per Lord Nicholls
"Self-evidently, fairness requires the court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. As Butler-Sloss LJ said in Dart v Dart  2 FLR 286, 303, the statutory jurisdiction provides for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering para (f), relating to the parties' contributions. This is implicit in the very language of para (f): '… the contribution which each has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family'. If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer."
"A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judge's conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge's decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination"
173) I am clear that this is not a case where there should be an equal division of assets. This relationship which began as cohabitation and led subsequently to marriage lasted some 12 ½ years. There was no marital acquest which falls to be divided. In fact, the assets have diminished substantially over the last 5 years. Moreover, all the assets in this case were inherited by the Husband and that is another factor which is of central relevance. All these factors convince me that an equal division would not be appropriate and it would not be discriminatory to the Wife if she received less than half.
174) The ratio of Miller and McFarlane makes it clear that the Court must give careful consideration to the materiality of the source of the assets that fall to be divided. In this case the assets fall into the bracket known as "Non matrimonial" because they all derive from the Husband's inheritance in 1998. Therefore, I must give proper weight to their origin and I accept that they should not be invaded unnecessarily. However, in this case, there is little marital property (as it has now been defined) and so the award will have to be made from the Husband's inheritance. I have no doubt that the Court is entitled so to do, for this was made clear per Lord Nichols in White.
"The fact that property was inherited was one of the circumstances of the case, to be given the weight appropriate in the circumstances. Inherited property could be seen as a contribution made to the welfare of the family by one party to the marriage. However, where the claimant's financial needs could not be met without recourse to the property inherited by the respondent, its source would carry little weight"
175) The former matrimonial home falls into a somewhat different category position. In Miller & McFarlane, at para 22, Lord Nicholls said:
"The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. As already noted, in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been."
I do not take that to mean that the property must be divided equally but its value and the lifestyle that it produced are relevant factors in Court's consideration of fairness.
176) As has been clear for a number of years, I must take into account the parties' contributions both financial and non financial to the welfare of the family and their needs. I must also consider whether the claimant is to be compensated, per Baroness Hale, for "relationship generated disadvantage". At paragraph 138, Baroness Hale said:
"The most common rationale is that the relationship has generated needs which it is right that the other party should meet. In the great majority of cases, the court is trying to ensure that each party and their children have enough to supply their needs, set at a level as close as possible to the standard of living which they enjoyed during the marriage (note that the House did not adopt a restrictive view of needs in White: see pp 608g to 609a). This is a perfectly sound rationale where the needs are the consequence of the parties' relationship, as they usually are. The most common source of need is the presence of children, whose welfare is always the first consideration, or of other dependent relatives, such as elderly parents. But another source of need is having had to look after children or other family members in the past. Many parents have seriously compromised their ability to attain self-sufficiency as a result of past family responsibilities. Even if they do their best to re-enter the employment market, it will often be at a lesser level than before, and they will hardly ever be able to make up what they have lost in pension entitlements. A further source of need may be the way in which the parties chose to run their life together. Even dual career families are difficult to manage with completely equal opportunity for both. Compromises often have to be made by one so that the other can get ahead. All couples throughout their lives together have to make choices about who will do what, sometimes forced upon them by circumstances such as redundancy or low pay, sometimes freely made in the interests of them both. The needs generated by such choices are a perfectly sound rationale for adjusting the parties' respective resources in compensation."
177) In this case I do not believe that this Wife suffered any economic disadvantage at all. She met the Husband when she was only 21 years old. She did not have any qualifications or budding career of substance. She made no economic sacrifices for this relationship and, as a result of this marriage, she will be much better off than she would have been had she pursued her chosen career. However, she clearly has needs as a result of her dependency on the Husband during the course of the marriage and the fact that she is going to care for the children until they reach adulthood.
178) The application of section 25
a) Income, earning capacity, property and other financial resources.
The assets total some £40 million. At present, such income as the Husband derives from his investments outside his business is, apparently, swallowed up by huge on going business losses and his expenditure. The size of this income has not featured greatly in this case. It was put in excess of £1 million per annum by Mr Posnansky in his opening. The Husband put it at £188,000 odd in his Form E. Given his overall resources, it would normally have been sufficient to cover his needs.
b) The financial needs, obligations and responsibilities which each has for the foreseeable future.
The Husband has bought and equipped a new home – it cost him £3.7 million and he spent some £ ½ million on it (total £4.25 million). It has 3 bedrooms and is situated in a fine part of London close to Regent's Park. It may well be worth some £4.8 million in the current market. This figure was given to Mr N by KQ (the Husband's business associate) who I would expect to know. However, I make no specific finding as to value as no valuation evidence has been led before me.
I have no doubt that the Husband will have sufficient to meet his income needs, provided he does not continue to squander his inheritance on doubtful business ventures.
i) The Wife asserts the need for £6 million for the purchase of a house, plus £240,000 (stamp duty); £450,000 (for refurbishment/redecoration) and £10,000 (moving costs). I do not accept these figures, they are too high. Having looked at the Estate Agents particulars included in the bundle and assessed the Wife's evidence on the cost of housing, I consider that she needs a house costing some £4 million, plus stamp duty of £160,000 and moving costs of £10,000. This will provide a property with a garden in a good area, close to the children's schools. It also reflects the fact that the former matrimonial home sold for in excess of £8 million. In passing I remind myself that the lump sum figure in the agreement was said by Mr Z to be based upon 50% of the gross value of that home.
ii) I have not had the usual detailed evidence to support the claim for the costs of refurbishing the new house or furnishing it. No evidence was led and there was no cross examination. I am afraid that this is in line with the manner in which this case was run by both sides. I do not feel that enough concentration was placed upon financial issues. Therefore, I will do my best to assess what I consider would be fair taking into account the lavish lifestyle that the parties lived, the current asset base and what I consider can and should be afforded in the future. I consider that a total housing fund of £4.5 million is appropriate. This will enable the Wife to spend some £330,000 on furnishings and fittings which from my long experience of doing this type of case will prove sufficient.
iii) The Wife asserts a need for £6.75 million as capitalised income provision, based on a multiplicand of £450,000 and a multiplier of 15 years. I would not normally expect a case such as this to be resolved by a Fournier type approach. I accept that a Duxbury calculation would not provide the entire answer because the Wife is young and the relationship is of medium length. However, I would have expected at least some bespoke calculations of the sort that were approved in the case of F v F 1995 2 FLR 45. Mr Mostyn QC produced no final written submissions in relation to this aspect of the case. In fact, until I invited him to do so he made no submissions. It is never prudent to run a case upon the basis that there is only one outcome. His brief submission was to the effect that if the maintenance was capitalised the Wife should receive £240,000 for 12 years being £2.88 - £3 million. During the last year the Wife has apparently spent about £100,000 more than the interim maintenance which I awarded her (which was in line with the agreement). There was no proper assessment of the figure of £240,000 and I do not think that £450,000 can be justified. Overall I consider that a total fund of £4.5 million is appropriate. On a very simplistic basis, this could produce £250,000 per annum for 18 years (which equates broadly to future years of mothering until tertiary education is complete) or £300,000 per annum for 15 years or £375,000 for 12 years. I note that the children are only 6 and 4 years old with the result that there are many years of child care ahead and I consider that the Wife would be very foolish to spend at these rates. If this sum is husbanded properly it will last much longer.
iv) The Wife seeks £176,000 to cover debts (including the purchase of two cars and alleged shortfall in maintenance payments/inadequate provision prior to the maintenance pending suit order). The debts are made up as follows:
(a) pay off the HP debt on her car: £43,000
(b) for a car for the nanny: £22,000
(c) re the deductions by the husband from the mps: £31,186
(d) re overdraft incurred prior to the mps order: £79,833
I think that it is appropriate that the Wife should have these all these debts covered. They were not effectively challenged in her evidence.
v) The total capital award is therefore £9.176 million.
vi) The children's interim maintenance was set at £60,000 per annum each plus their school fees. The sum originated in the agreement. No argument has been advanced by the Husband that it should be less and so I do not propose to amend the figure. However before finalising this aspect of the case, I will take further submissions if the Husband wishes to seek to reduce it.
c) The standard of living enjoyed by the family before the breakdown of the marriage.
This was extremely lavish. It was too lavish to be continued in the long term.
d) The age of each party and the duration of the marriage.
The parties are Husband 31years old and Wife 35 years old. The relationship was 12 ½ years.
e) Any physical or mental disability of either party.
f) The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home and caring for the family.
All financial contributions came from the Husband via his inheritance.
The Wife cared for the family.
g) The conduct of the parties in so far as it would be inequitable to disregard it.
All my findings are set out in the body of this lengthy Judgment
h) The value of any pension which will be lost upon divorce.
Affidavits being shown to witnesses.
179) During the course of the case it became clear that Dr B had received copies of the parties' affidavits to retain. This is not appropriate. Given his pivotal role in this case, perhaps it is not surprising but it is not acceptable. Witnesses should be permitted to read/study the affidavits with which they are required to deal but they should not be permitted to remove them from the solicitors' office.
Some of the lessons to be learned from this litigation
180) Effective case management. I have described the preparation of this case as "shambolic" and I stand by that description. The case required more direction and the Court cannot provide it unless summonses are issued in good time.
181) Allegations and how they are to be presented. I have given my detailed findings above. Counsel must investigate fearlessly but they must be careful before making serious allegations unless powerful evidence is available.
182) The wife's legal team remained the same throughout. I do not believe that they ever considered that their bona fides was going to be an issue. No point was ever made about their continuing to act and, it is fair to note, this also occurred in the case of Edgar. However, with hindsight, I consider that it would have been prudent for there to have been a change of legal advisors in this case. When the validity of an agreement is challenged it would be wise for all the solicitors involved in the preparation and signing of the agreement to stand aside in favour of new advisors.
183) There must be more co-operation between Counsel outside court. I consider that a number of delays were caused and issues were raised by each side failing to give advance notice of documentation that was to be used. This was most unfortunate.
184) I hope now that the parties can put this often sad piece of litigation behind them and find some true happiness in their future lives. I expect a draft order to be available when this matter comes before me in relation to submissions on costs.