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Sareen v Sareen [2010] EWCA Civ 951

Application for permission to appeal in ‘big money’ ancillary relief proceedings. Application dismissed.

Application for permission to appeal from final judgment in ancillary relief proceedings following a twenty year marriage. An unusual feature of the case was that the husband had, some six months after the petition for divorce and on advice from tax counsel, voluntarily transferred assets to the wife bringing her share of the family assets of £100 million to £34 million. In making the transfer the husband expressed the hope that the wife would accept the transfer as full and final satisfaction of her claims. The wife did not and heavily contested ancillary relief proceedings ensued. At final hearing the judge ordered the wife to receive a further £7.5 million. The wife appealed, complaining (inter alia) that the judge gave too much weight to the voluntary division of assets. The application was refused, the court holding that the judge's award was plainly within the ambit of his discretion.

Summary by Stephen Jarmain, barrister, 1 Garden Court
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Neutral Citation: [2010] EWCA civ 951

Case No: B4/2010/0562
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
MR JUSTICE MUNBY
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 16th July 2010

Before:

LORD JUSTICE THORPE
and
SIR SCOTT BAKER
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Between:

SAREEN 
Appellant

- and - 

SAREEN 
Respondent


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(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr Howard QC and Mr Oliver (instructed by Hughes Fowler Carruthers) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment
(As Approved by the Court)
Crown Copyright ©

Lord Justice Thorpe:
1. This application concerns parties who married in 1987 and who acknowledged the breakdown of their marriage by presentation of a divorce petition by the wife some twenty years later in September 2007. 

2. An unusual feature of the case is that on 20 March 2008, some six months later, as the financial year drew to its close, the husband, having received advice from leading tax counsel, made a voluntary transfer of assets, which, in the estimation of the husband and his team, brought the wife's share of family assets, just exceeding £100 million, to £34 million, and the writer of the letter expressed the husband's hope that the wife would accept this voluntary arrangement in full and final satisfaction of her claims.  The writer went on:

"However, it will remain open to your client to argue that a fair determination of her claims would have a different outcome."

3. What then ensued were very heavily contested ancillary relief proceedings.  As is recorded in the ultimate judgment of the trial judge, there was much interlocutory skirmishing, including hearings before Hogg J, Baron J, Baron J again, Black J, and even Coleridge J was unable to resolve the case at the FDR hearing.  And so it fell to Munby J to decide what was fair between the parties. He heard evidence of the submissions over many days between April and July 2009 and reserved his judgment, which was uncharacteristically delayed as a result of his appointment as Chair of the Law Commission and elevation to this court.  His judgment is, as he said, brief by his standards, because he felt it unnecessary to enter into the welter of detail and the extent of the issues that had been canvassed by highly specialist and expert ancillary relief lawyers on both sides. 

4. The judge attached great importance to the voluntary division of assets effected by the husband in March 2008, and he correctly asked himself the crucial question: does fairness require me to order more to the wife?  He answered that question in the affirmative and ordered her to receive a further capital payment amounting to £7.5 million, and he reasoned that essentially in paragraphs 105 through to 110 of his judgment.

5. The wife was dissatisfied with this appraisal and filed an appellant's notice on 9 March 2010.  At the same time an application was made to Munby LJ for permission to appeal and he required that application to be elaborated by written submission from both applicant and respondent.  So, unusually, he had in front of him the grounds of appeal settled by Mr Howard QC and Mr Oliver, dated 5 March 2010.  As the judge observed, they were unusual grounds for appeal in that they appeared to be more of a skeleton argument: there is introductory section and then grounds are thereafter developed, running in all to some 14 pages and 32 paragraphs.

6. So the judge, again unusually, delivered a judgment on the application for permission which appears as an approved judgment handed down in private but with permission to publish, and it extends to some 16 paragraphs.  It might have been the end of this case, but no, the application to this court was then activated and I directed an oral hearing without notice on 2 May.

7. So this morning we have heard Mr Howard in amplification not only of his grounds but of the skeleton argument which followed, which is again very full, running to some 28 pages and 89 paragraphs. 

8. All this distils to a fundamental complaint that the judge should not have majored on the voluntary division of assets; that he was unfair to the wife in importing into the case valuation of assets as at that date, and he was unfair to the wife in leaving out of account assets that were in existence in March 2008 but not brought into the schedule that assessed the wife's share of £34 million and, further, not bringing into account assets generated since that date. 

9. I am quite unpersuaded that anything Mr Howard has said this morning in support of his grounds and skeleton justifies referring this case to the full court.  The rationalisation of the judge's approach to conclusion is in my view impeccable.  In paragraph 105 of his judgment he adopts as his starting point the proposition that if the voluntarily transfer of March 2008 was fair then there is no principle basis for going behind it.  That seems to me a fundamentally sound proposition.  He however goes on to say that there must be an investigation of whether the wife is entitled to additional surplus cash accruing since March 2008, or other assets of the business not brought in in March 2008, or the future income of the business, something to which Mr Howard had directed his fire.

10. So the judge then, in the fifth subparagraph, asked the question as to the other assets of the business: what was the worth of those capital assets which were not brought into account in the March presentation?  He notes that there is a division between Mr Howard's suggestion that they were of immense value and the forensic accountant acting for the husband who had put at a comparatively modest figure, somewhere between 3 and 4 million. 

11. Then in paragraph 108 the judge specifically said that the lump sum was to be made up of the two matters, namely those that he had noted in subparagraphs (v) and (vi) at paragraph 105.  That methodology does not seem to be open to any criticism, and the resulting figure of £7.5 million seems to me to have been plainly within the ambit of discretion which was particularly wide in this case, given the immense family fortune and uncertainty surrounding a number of the ingredients of that fortune.

12. The only last word that I add is that I would fully endorse the reasoning of Mummery LJ expressed in his judgment of 1 April 2010.  It is high time that this litigation came to an end and the parties free themselves from the burden of litigation and anxiety.  There is one certainty that neither of them is ever going to experience any financial want or need, and it would have been sad indeed had we been obliged to set up a further hearing in this court.  I think it is for the benefit of all that these proceedings be brought to a close by the dismissal of the permission application.

Sir Scott Baker: 
13. I agree.

Order:  Application refused