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Mark v Mark and Another [2006] EWCA Civ 1164

Wife’s application for permission to appeal against order permitting ‘frozen’ funds to be moved refused.

Mark v Mark and Another [2006] EWCA Civ 1164

Court of Appeal: Arden and Wilson LJJ (16 June 2006)

Summary
Wife's application for permission to appeal against order permitting 'frozen' funds to be moved refused.

Background
This hearing arose in the context of complex ancillary relief proceedings between the wife and the husband, and related to four accounts (in Jersey and the Isle of Man, amounting to approximately £6 million) that were subject to a freezing order made against the husband in October 2000. There was a substantial issue as to whether the funds were a resource of the husband, and thus amenable to transfer to the wife under any future ancillary relief settlement, or whether they were assets of the professional trustee company (the 'company') that was joined as second respondent.

In March 2004, the Isle of Man bank where the accounts were held informed its customers that it would be closing for business, and the proposed move of all the funds to accounts in Guernsey was opposed by the wife. At a hearing in March 2005, the wife contended that the company's proposed move of funds was in breach of the October 2000 order, and that her solicitor needed to assume joint control of the accounts in order to provide her with extra security; the judge dismissed the wife's contention, and proceeded to grant the application for the funds to be moved.

The wife applied for permission to appeal against the judge's order of March 2005, referring to her fear that the company was likely to deploy the funds in breach of the October 2000 order. The wife also asserted that the judge had resolved the matter, heavily in dispute, as to the true ownership of the funds, by referring in his judgment to the fact that the funds had always been 'operated by the trustees' in accordance with the order of the judge.

Judgment
Held, refusing the application for permission to appeal, that the appeal stood no reasonable prospect of success.

The court drew attention to the fact that, until the Isle of Man bank indicated its intention to close for business, the wife had never applied to the court for variation of the October 2000 order so as to insinuate her solicitor into joint control of the funds.

Also, as to the judge's alleged comments concerning the true ownership of the funds, the court concluded that the judge considered that he was dealing with an administrative problem arising out of the closure of the bank, and it was inconceivable that by that one statement, namely that it had been the trustees who had been operating the accounts, he meant to foreclose the issue, which would be prominent in the 10-day hearing fixed for later in the year, as to the beneficial ownership of those funds.

Finally, the court stated that, notwithstanding the March 2005 order, the wife should be permitted to issue an application for a mirror order in Guernsey, even though there was no evidence to demonstrate any bad faith on the part of the company.

Read the full text of the judgment