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Charman v Charman [2005] EWCA Civ 1606

Husband’s appeal to overturn orders designed to discover material relating to the assets of an overseas trust for forthcoming ancillary relief hearing. Appeal dismissed

Charman v Charman [2005] EWCA Civ 1606

Court of Appeal: Wilson LJ, Lloyd LJ and the President (2 December 2005)

Husband's appeal to overturn orders designed to discover material relating to the assets of an overseas trust for forthcoming ancillary relief hearing. Appeal dismissed

The husband (H), was appealing against two orders made by Coleridge J on application by the wife (W). The orders were for a) a letter of request to the Bermudan authorities to take evidence from the sole trustee of a trust settled by the husband (the Dragon trust) and b) to require that H's long standing accountant attend court under a production appointment.

W's advisers sought these orders in the light of the £67m difference between H's statement of assets in the ancillary relief claim and the wife's claim that the total was £126m. The discrepancy represented the assets of the trust, which, they claimed, would be made available to H if he so requested and could therefore be included as part of the ancillary relief claim. H's counsel argued that this was not the case and that the orders amounted to a "fishing" expedition for production of documents which the wife cannot prove existed; are unnecessary for the wife's claim; disproportionate; oppressive and go too wide.

Wilson LJ, having first assessed that there was sufficient dispute over whether the assets would be made available, reviewed the cases and statutory provisions relevant to letters of request and production appointments. He concluded that the principles underlying whether the application for the orders amounted to a "fishing" expedition are the same for civil and family proceedings and that these orders could not have been made lawfully if they were an attempt to carry out such a purpose. The letter of request was intended to elicit evidence in support of the wife's allegation that the capital of the trust would be made available on request. The intention of the production appointment was also to gather possible evidence rather than simply to find information; in this case, the husband's past dealings with the trustee.

He then tackled the issue of whether the documents specified in the order should be limited to those that can prove to exist. He notes that if that is the case, then the appeal would largely succeed. However such a limitation should not be imposed in ancillary relief proceedings as s5 of the Matrimonial Causes Act 1973 gives judges a quasi-inquisitorial role and allows a wider role than provided for in civil proceedings, a point reinforced in Thorpe J's judgments in Parra v Parra [2003] 1 FLR 942 and D v D (Production Appointment) [1995] 2 FLR 497. The magnitude of the trust assets in question ensured that the orders were proportional and they were not oppressive as the subjects of the orders were professionals whose personal privacy would not be infringed. The appeal would therefore be dismissed.

The President, adding his comments to the judgment, concurred with Wilson LJ's judgment adding that the wife would often be ignorant of such arrangements as these offshore trusts and that, if the court was to achieve a fair distribution of the assets, a letter of request is a 'valuable means to obtain the necessary information.'

Read the full text of the judgment here