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Family Law

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28 JUL 2015

KG v LG (No 2) (Appeal Out of Time: Material Non-Disclosure) [2015] EWFC 64

KG v LG (No 2) (Appeal Out of Time: Material Non-Disclosure) [2015] EWFC 64
(Family Court, Moor J, 8 July 2015)

Financial remedies – Appeal – Out of time – Non-disclosure – Whether the husband’s failure to identify himself as a principal beneficiary of a trust constituted material non-disclosure

The wife was granted permission to appeal out of time and her appeal from a financial remedies order was granted on the basis of material non-disclosure.

The husband and wife were married for 13 years and cohabited for 9 years prior to that. They had three children. When they divorced the husband and wife reached a settlement which was approved by consent order. The wife was to receive the former matrimonial home which was worth in the region of £3.25m plus a lump sum of £4m payable in instalments. Child maintenance was agreed at £10,000 pa per child.

The husband's asset schedule prepared at the time revealed assets of just over £14m and a net income of £166,650 plus a pension valued at £431,522. Therefore, the wife's award was very close to half of the disclosed assets.

Four years later the wife made enquiries regarding a trust settled by the husband's family which she had been informed at the time of the divorce was for the benefit of their children. She was told that the principal beneficiary was the husband and that since the divorce he had received £9.36m from the trust. The wife sought permission to appeal out of time and appealed on the ground of material non-disclosure.

In this instance the wife did not have access to the trust deeds or accounts and was reliant on the husband making full and frank disclosure. Her solicitors asked questions but when the formal Form E procedure was abandoned in favour of negotiation the duty of disclosure did not appear.

The husband was found to be evasive and at times misleading in his evidence as to the disclosure provided during the divorce negotiations. He had failed to give full and frank disclosure. The information given, that the children were the principal beneficiaries and that the husband was a potential beneficiary was materially inaccurate. The husband was a beneficiary and he had benefited. Furthermore, at that time the husband knew that the trusts held £4.2m and that it was possible that further substantial sums would be earned. The non-disclosure was, therefore, material.

As soon as the wife discovered the true position in respect of the trust she promptly took action. Although she could have followed up matters with the trustees much earlier she was clearly given the brush off by the husband. This did not disentitle her to relief.

The wife was granted permission to appeal out of time and her appeal was allowed. The consent order was set aside.
Neutral Citation Number: [2015] EWFC 64
Case No: FD09D05089

IN THE FAMILY COURT

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 8th July 2015

Before :

Mr Justice Moor

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Between :

KG
Proposed Appellant

- and -

LG
Proposed Respondent

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Mr Jeremy Posnansky QC and Mr Simon Webster for the Proposed Appellant
Mr Tim Amos QC and Mr Richard Sear for the Proposed Respondent

Hearing dates: 6th to 8th July 2015

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JUDGMENT

MR JUSTICE MOOR
:

[1] This is an application for permission to appeal out of time and, if granted, an appeal against an order made by Marco DDJ on 1st June 2010. In essence, the application is that I set aside the original order on the grounds of material non-disclosure.

The relevant history

[2] The Proposed Appellant, Mrs KG, was born in August 1964. She is therefore aged 50. She lives at the former matrimonial home, a property in Dorset. The Respondent is LG. He was born in June 1966 and so is aged 49. He lives at a property in Switzerland. I propose to call them the Wife and the Husband respectively for the sake of convenience, even though they have now been divorced for some time. I mean no disrespect by so doing.

[3] They began to cohabit in 1987 and got married in August 1996. They separated in August 2009. It was, therefore, a long marriage, taking into account the period of pre-marital cohabitation.

[4] There are three children, A aged 20, B aged 19 and C aged 17. The former matrimonial home was a substantial property, valued by Savills at £3.25 million at the time of the divorce.

[5] The Husband’s parents had acquired a company that became X Ltd. The Husband began working in the business in 1988. Eventually, the Husband, his brother MG and the two parents held 25% of the business each. It was sold in 1999 to Z plc for approximately £85 million gross. The Husband received £15 million net.

[6] The Husband then commenced another business which became S Ltd. On 18th July 1999, a settlement known as the 1999 settlement was established by the Husband’s parents. The beneficiaries are the children and the trustees are the Husband and Wife. Approximately 18% of the shares in S Ltd were placed in this trust.

[7] At this point, it is right to note that there was an Accumulation and Maintenance Settlement established by the Husband’s father on 25th March 1997 for A and B. The trustees were the Husband’s father and the family solicitor, Mr CC. Originally, the assets were 5 D shares in W Ltd, a supplier to X. The Husband says that this settlement was replaced by the 1999 Settlement.

T and the trusts

[8] The Husband’s brother, MG, set up his own business called T in January 2002. The Husband was not directly involved but he did loan over £1 million towards funding the project. MG is clear that “I regarded 50% of my shares in T as destined for (the Husband)” on the basis that MG would benefit from 10% of the shares in S Ltd.

[9] In March 2008, MG decided to redistribute the shares to reflect the original intentions although he reduced slightly the shares notionally held for the Husband in exchange for MG no longer having any entitlement to shares in S Ltd. He did this in anticipation of Y plc investing in T.

[10] Two trusts had been established on 11th March 2008, namely the HA Trust and the EA Trust. 6 million B shares were transferred into the HA Trust by the Husband’s parents and MG transferred 2,580,460 shares into the EA Trust. The trustees of both trusts were MG and his parents. The beneficiaries are the Husband and his descendants. The Wife is not a beneficiary of either trust. MG says in his statement that the shares were transferred into the trusts “for the benefit of LG and his children” who were the beneficiaries.

[11] The Husband’s parents and MG, as trustees, signed a letter of wishes saying that, subject to legal constraints, they will administer the trust “in accordance with [the Husband’s] legal and reasonable request, which should be notified to us in writing for our consideration and action as necessary”. On the same day, MG gifted the shares to EA Trust in consideration for the Husband’s “assistance in setting up of T and any previous discussions and agreements…relating to the ownership of T and (S Ltd)”.

[12] A letter from Speechly Bircham, acting for the trustees, dated 29th May 2014 to Withers, who were acting for the children, says that, in view of the source of the trust assets, “our clients have always considered the Husband to be the principal beneficiary during his lifetime and continue to do so”.

[13] On 3rd April 2008, Y plc purchased a 30% stake in T for £12 million, although around £7 million was used for debt repayment. There was also an option to purchase the remaining 70%. The Husband was repaid £625,000 of his loans. The HA Trust received £1,194,862 but its shareholding was reduced to 4.2 million. The EA Trust was paid £513,882 but had its shares reduced to 1,806,322.

[14] On 20th May 2008, the HA Trust loaned S Ltd £750,000 and EA Trust loaned £250,000. It is right that the Wife signed the deed and that it did say that HA Trust and EA Trust were “settlements for [the Husband] and his family”. This fact was confirmed in Note 18 of the company accounts for the year ended 31st July 2008. The accounts were signed by the Wife as Company Secretary on 30th December 2008. On 10th March 2009, the loans were assigned from the company to the Husband personally. It is not alleged that the Wife knew about that at the time.

[15] On 6th February 2009, the Husband received distributions of £300,000 from HA Trust and £200,000 from EA Trust. This money was used as part of the finance for a deal in Australia. Again, it is not alleged that the Wife knew about this at the time.

The divorce proceedings

[16] In the divorce proceedings, the Wife instructed Farrer & Co. The Husband instructed Burges Salmon. On 16th October 2009, Ms Catherine Hallam of Burges Salmon wrote to Farrer & Co. The letter gave some very brief disclosure. The letter said the following in relation to trusts:-

“There is a family trust which owns shares in another company, T Ltd. LG’s parents are the Trustees and LG and KG’s children are in the class of beneficiaries. Neither LG nor KG can benefit under the Trust and LG is neither a director nor a shareholder. I therefore do not expect that an independent report on this shareholding would be considered necessary, though details of the Trust should be exchanged during the disclosure process in the usual way.”

[17] There can be no doubt that this passage as to the trust was fundamentally wrong. Moreover, I contrast it with something said by the Husband in a statement for this case. He said that he was keen to do the settlement properly as he was worried that, knowing the Wife’s character “given the slightest imperfection, there was a good chance (she) would be back for more in the future”.

[18] On 22nd October 2009, the Wife’s solicitors suggested accountants to value the Husband’s corporate interests. In relation to the trust, they said they would need to have an idea of its assets and income. The instruction of experts to value the various assets was put on hold in early November 2009 as the parties were discussing the matter themselves with their accountants, EX & Co, assisting by assembling financial information.

[19] On 30th November 2009, the Husband wrote to the Wife direct. The letter itself was a “without prejudice” proposal but it attached an “approximate wealth statement” showing that the Husband was worth around £15,694,000. There is no reference to HA Trust and EA Trust. He had received this schedule from Mr SP, the accountant dealing with the Husband and the Wife in EX & Co.

[20] The informal discussions did not reach an agreement and appear, in effect, to have broken down. There was further solicitors’ correspondence in December 2009 with the Wife’s solicitors not surprisingly saying that the disclosure was not yet sufficient to consider the Husband’s without prejudice offer. The Husband’s solicitors agreed that there should be Forms E and experts. The letter says that the trust will be dealt with in the Form E.

[21] In early 2010, T negotiated a further payment from Y plc of £12 million. On 5th February 2010, HA Trust received £2,933,885 and EA Trust received £1,261,795. On 12th February 2010, the Wife issued her Form A.

[22] The informal discussions recommenced in March 2010. On 19th March, the Husband’s solicitors made a further without prejudice proposal, after discussions between the parties. The letter says that “at this stage, the financial disclosure remains incomplete. Both parties are aware of the assets and liabilities in broad terms but the quantification of those has not yet been completed.”

[23] The Wife’s solicitors responded on 25th March 2010 with a without prejudice offer. The letter said “although we do not consider that (the Wife) has a reasonable picture of the family’s assets, liabilities and income (in particular in relation to your client’s businesses), she would also like to try to resolve matters as soon as possible”.

[24] Thereafter, it appears that Mr CC, a partner in the firm of CTC was asked by both sides to act as “honest broker”. He was the family solicitor. There is an attendance note between Mr QQ, who was Mr CC’s family law partner and the Wife which suggests that Mr QQ thought the Wife was going to instruct him but I am satisfied that was not really what was intended. It certainly was not what happened. Mr CC met with the Wife on 7th May 2010 and then with Mr SP on 11th May. It was agreed that Forms E would not be exchanged. The Husband’s solicitors suggested using the First Directions Appointment to approve an order or to agree a revised timetable.

[25] On 24th May 2010, a meeting took place in Switzerland between the Wife, the Husband, Mr CC and Mr SP. I will have to return to this in due course. There is no doubt that the meeting went through a draft consent order and an agreement was reached. It was subsequently signed by the parties and Forms M1 were exchanged. So far as the Husband’s Form M1 was concerned, it was received by the Wife’s solicitors at 1709 on 28th May 2010. The Wife did not see it over the weekend as she was away. Monday 31st May was the Whitsun Bank Holiday. The matter then came before Marco DDJ on Tuesday 1st June 2010. By then both sides had seen the other’s Form M1, although I note that the Husband says in his statement, that “given the time pressures I did not pay too much attention to this”. He was referring to his Form M1. The Wife will have had even less time to consider his disclosure.

[26] The consent order was relatively straightforward. The former matrimonial home (worth £3.25 million) was transferred to the Wife. She was to receive a lump sum of £4 million in instalments. £50,000 was to be paid immediately. £950,000 was to be paid within 30 days and £2,000,000 was to be paid within 90 days. The remaining sum of £1 million was to be paid at the rate of £10,000 per month. This is 8 years and 4 months. It has since emerged that the first £950,000 was borrowed from the Husband’s father. The £2 million was borrowed from a bank, secured upon the HA and EA Trusts. The loans have subsequently been repaid by a distribution from the trusts to the Husband. The Husband continues to pay the sum of £10,000 per month. The order also provided for child maintenance of £10,000 per annum per child.

[27] The Husband’s Form M1 includes an Asset Schedule which discloses total capital resources of £14,262,143 together with a net income of £166,650 and a pension with a value of £431,522. It follows that the total award of £7,250,000 was very close to half the disclosed assets. It is entirely right to say that the Wife received liquid assets (albeit that the final £1 million was to be paid over a significant period of time) whereas the Husband retained by and large illiquid assets, namely shareholdings in various companies although he did retain the Spanish property, valued at £2.9 million net.

[28] The Assets Schedule refers to both the HA and EA Trusts saying “(the Husband) potential beneficiary”. There is then a document headed “Notes to Accompany Asset Schedule” which is signed by Burges Salmon. The Husband’s S Ltd shares are valued at £5.4 million but it specifically refers to 18.18% of the shares being held in the 1999 Settlement for the benefit of the children with the Husband and Wife as the trustees.

[29] Note 12 refers to an Accumulation and Maintenance Settlement dated 25th March 1997 (“The HA Trust”). It says:-

“This is a settlement which was established by (the Husband’s) father for the benefit of (the Husband’s) children. The trustees are (the Husband’s) father and CC. The Trust Fund is 5 “D” shares in W International Limited. The primary beneficiaries are A, B and C but (the Husband) is also a beneficiary. The Settlement had net assets of £3,310,086 as at 5 April 2008 which is the most recent valuation available. On 24 May 2008, the settlement lent £750,000 to the S Ltd group of companies to assist with poor cashflow and difficult trading conditions. The benefit of the loan was assigned to (the Husband) personally on 10 March 2009 and is therefore reflected in the Director’s Loan Account referred to above.”

[30] Note 13 is headed Settlement Dated 11 March 2008 (“The EA Trust”). It says:-

“This is a settlement which was established by (the Husband’s) brother, M in 2008. The Trustees are M and (the Husband’s) parents. The settlement provided that shares in T Limited should be held on trust for (the Husband) and his descendants. The settlement had net assets of £1,421,794.26 as at 5 April 2008, which is the most recent valuation available. The settlement also lent money to Group S Ltd on 24 May 2008. It lent £250,000 for the same reasons as the loan from the HA Trust. The benefit of that loan was also assigned to (the Husband) personally, and is therefore reflected in the Director’s Loan Account referred to above.”

[31] It is now clear that the figures given for the value of these two trusts in April 2008 were calculated on the basis of the cash received on the sale of 30% of T to Y plc and the shares retained in T valued at 53 pence per share, which was the figure agreed at the time by HMRC.

Developments since the consent order

[32] I should start by saying that much of what I am about to say has only emerged since the institution of these proceedings. I accept Mr Amos QC’s submission that I must not decide this application “with the benefit of hindsight”. Nevertheless, I set out at this point the factual position.

[33] The Husband’s case is that he only discovered that HA Trust and EA Trust had received just under £4.2 million on 5th February 2010 from the second Y plc payment in late July/August 2010. I will have to make a finding of fact as to that.

[34] On 5th October 2011, the Husband received £2,352,000 from HA and £1,008,000 from EA Trust. He used this money to discharge the loans he had taken from his parents and Coutts to pay the sum of £3 million to the Wife.

[35] On 3rd January 2012, Y plc exercised the option to purchase the remaining 70% of T for £24 million with deferred consideration of a further £37.6 million to be paid in 2014. In 2014, this liability was converted into loan notes. In consequence, HA Trust sold 4.2 million shares for £6,222,303 and received loan notes valued at £9,819,779. EA Trust sold 1.8 million shares for £2,676,067 and received loan notes worth £4,223,258. The total consideration for HA Trust and EA Trust was therefore £22,940,000.

[36] In April 2012, further distributions were made to the Husband. He received £1.5 million from EA Trust and £3 million from HA Trust. The latter is stated to have been a loan at 3% per annum interest repayable on 24th April 2015. There is no doubt that the Husband has not repaid the loan. I gained the impression that he certainly did not expect to have to. It was put that approximately half the money was retained in the two trusts but, ignoring the loan notes, there is in fact only cash of £2,107,054 remaining.

[37] It is clear that relations between the parties did not improve. The Wife accuses the Husband of abandoning the children and leaving her with total responsibility for them, both financial and on a day to day basis. She was also upset by two significant costs bills that she had to pay relating to some litigation with some builders called D Ltd, both of which were in excess of £100,000. She did not consider she had been kept properly informed by the Husband nor had any input into the conduct of the litigation. There is an issue as to whether she was also concerned about potential non-disclosure. Her case is that she believed that the trusts holding the T shares were for the boys and the boys were not receiving any benefit.

The Wife’s enquiries

[38] On 9th November 2011, the Wife sent an email to Mr SP. It says that she is “keen to have a meeting with you and or (the Husband) to explain to me about the role of the boys’ trusts, the expected date of repayment of the money owed to them by Group S Ltd and any impact that the sale of T to Y plc would make on them.” She did not receive a reply and therefore followed it up on 14th November asking who to speak to if it was not a matter for Mr SP. The response was that he was happy to talk about the children’s trust and she should book an appointment when convenient. She said she would ring to arrange an appointment. I am unclear as to whether or not she did so. Neither party has, however, relied on this.

[39] On 20th September 2012, she tried again, this time sending an email to the Husband. The email is longer and is headed “D Ltd, the boys’ trusts and sky collection letters.” The relevant part says this:-

“I also need to understand the “T Trust” and how it effects (sic) the boys and who its trustees are as I have never seen any accounts nor can I confirm for whose benefit it exists. It has always been my understanding that it was exclusively for the boys benefit. This is a substantial amount of money and the boys need to understand the basis of this benefit”.

[40] The Husband did not answer. He forwarded it to Mr SP. The response was received on 26th September 2012. The relevant passage is as follows:-

“T Trust The people controlling this are (the Husband’s father) and MG (the Husband’s brother) and they are advised by KPMG. EX & Co (Mr SP’s firm) has no input into this. The beneficiaries are LG and the boys and I understand that the Trustees have discretionary power in relation to the trust assets. I too have not seen accounts and have no interest in it. From the information passed over to the lawyers acting for you at the time of the divorce the significant asset is shares in Y plc and I understand that MG is still working there to achieve whatever outcome he has planned in relation to their realisation. I am not privy to the detail in this respect.”

[41] At around the same time, the Wife contacted MG. The call was over an hour in length and covered many things. It is clear that the Wife was upset as to the behaviour of the Husband and, in particular, in relation to the children. MG says she was told the beneficiaries of the trusts were LG and the children and there were substantial assets in them. Her main complaint was in relation to the children.  She said she did not want any money for herself. She asked if the trustees would consider helping the boys and he agreed to give it some thought. There was a further telephone call in January 2013 when it was agreed that HA would make payments of £1,000 per month to A at University. He also said that the trustees would consider making a one off payment to her to reimburse her for various costs expended on behalf of the children, such as A’s car and asked for a schedule. The Wife asked for accounts and paperwork in connection with the trusts. He declined, believing she was not entitled to this information.

[42] Subject to one further matter that I must consider, the final step was that the Wife took A to see Withers in the spring of 2014. On behalf of A, Withers wrote to the Trustees of the HA and EA Trusts on 1st April 2014, asking for reimbursement of expenses paid by the Wife on behalf of the children. There is reference in the letter twice to the children being “the beneficiaries”. The Trustees instructed Speechly Bircham who wrote to Withers on 29th May 2014. The letter said the following:-

“We enclose copies of the trust deeds and financial statements for the HA and EA Trusts since their inception, pursuant to your request. The assets our clients settled on the Trusts on 11 March 2008 comprised shares in T Limited, which represented (the Husband’s) interest in the company arising from loans (the Husband) made to MG at the time he established the T business. In view of the source of the Trusts’ assets, our clients (who are the named settlor-trustees) have always considered (the Husband) to be their principal beneficiary during his lifetime and continue to do so”.

[43] The Wife’s case is that this was the first time she discovered the true position. She instructed Farrer & Co who arranged a consultation with leading counsel. Following that consultation, the Appellant’s Notice and Grounds of Appeal were issued on 23rd July 2014. On 13th October 2014, I listed the application for permission to appeal and permission to appeal out of time with the substantive appeal to follow if permission is granted. I gave it a three day time estimate and made directions. On 6th March 2015, I dismissed the Husband’s application to extend the hearing to five days, indicating that I intended to case manage the hearing rigorously.

[44] Over two days, I heard oral evidence from seven witnesses, namely the Wife, the Husband, the Wife’s friend, DS, the Husband’s father, the Husband’s brother (MG), Mr SP and Mr CC. I have been given comprehensive written documents from both sets of counsel and have heard the oral submissions of leading counsel on behalf of both.

The satellite litigation

[45] In September 2012, the Wife asked a friend of hers, DS, to contact Deborah Bangay QC, an immensely experienced barrister in this field to raise with her some of the Wife’s complaints. It appears Mrs DS did so on 20th September 2012. Miss Bangay said that she did not accept public (direct) access cases but referred the Wife to Mr Julian Ribet of Levison Meltzer Pigott, a solicitor who also specialises in this work.

[46] Mrs DS sent an email to the Wife at 0915 on 20th September 2012. Miss Bangay sent a very short email to Mr Ribet at 0854. Very regrettably, there was satellite litigation in which the Wife sought to exclude the emails from the case. Roberts J rejected the application in a detailed and comprehensive judgment now reported as G v G [2015] EWHC 1512 (Fam).

[47] Mrs DS’s email said that Miss Bangay had mentioned that Mr Ribet can decide if there is “a case for litigation” and that Mrs DS had “told her a few bits and she said Christ!... She suggests you gather all paperwork including the contract for settlement. She was saying all the right things.” Miss Bangay’s email says “[the Wife] may call you re non performance of a Consent Order and ? poss non-disclosure”.

[48] The relevance of this is that the Husband argues that the exchange of emails show that the Wife was well aware of the HA and EA Trust issues in 2012 but did nothing. He says she was waiting for the Y plc money to come to fruition.

[49] The Wife responds that she did not know. She was complaining about a number of things, including, in particular, the D Ltd litigation and the failure of the Husband to support the boys. Mrs DS corroborates her evidence.

The Law

[50] Although I have been referred to a significant number of authorities, the law is in fact extremely straightforward and set out clearly in the leading case of Livesey v Jenkins [1985] AC 424 in which Lord Brandon said:-

“…in proceedings in which parties invoke the exercise of the court’s powers under sections 23 and 24 (of the Matrimonial Causes Act 1973), they must provide the court with information about all the circumstances of the case, including, inter alia, the particular matters so specified. Unless they do so, directly or indirectly, and ensure that the information provided is correct, complete and up to date, the court is not equipped to exercise, and cannot therefore lawfully and properly exercise, its discretion in the manner ordained by section 25(1). …It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and to the court”.

[51] There have been a significant number of authorities in this area since. I need only mention three principles that have been drawn to my attention by Mr Amos. I accept the first two without reservation:-

(a) It is fundamental that any attempt to overturn a consent order on the basis of non-disclosure will not succeed if the disclosure would not have made any substantial difference to the order which the court would have made. This simply reiterates the point made in Livesey v Jenkins that the non-disclosure must be material.

(b) The Applicant must act without delay once he or she has discovered the alleged non-disclosure. The justification for this requirement is the overriding importance of finalising litigation promptly and conclusively (see Thorpe LJ in Burns v Burns [2004] EWCA Civ 1258). Indeed, in Rose v Rose [2003] 2 FLR 197, CC J held that a delay of one year between the discovery of the alleged non-disclosure and the issuing of an application to set aside was wholly unreasonable and an additional reason why the application in that case was not permitted to proceed.

[52] The third principle advanced by Mr Amos requires at least some clarification. Mr Amos submits that an applicant should not be able to rely on putative non-disclosure if such would have been avoidable by reasonable enquiry by her. He relies on B v B [2007] EWHC 2472; [2008] 1 FLR 1279 per Sir M Potter, President. He submitted with vigour that the Wife in this case had taken the conscious decision to abandon the exchange of Forms E in favour of negotiation. The Husband had offered full disclosure and she cannot therefore now complain that she chose to settle without that disclosure.

[53] Mr Posnansky QC for the Wife responds equally forcefully that, if that was the law, no case would ever settle again without exchange of complete Forms E and all supporting documentation. He submits that a decision by parties to negotiate does not absolve them from their duty of full and frank disclosure. In short, one cannot allow the other to settle on information that is materially in error.

[54] The submissions of Mr Posnansky in this respect are correct. I remind myself that Livesey v Jenkins itself was a case involving a consent order. B v B arose in very different circumstances. A wife was attempting to set aside an order on Barder [1987] 2 All ER 440 principles, complaining about an allegedly inaccurate valuation of a matrimonial home. In such circumstances, each party is in a position to test the valuation evidence by reasonable enquiry and cannot complain if they fail to do so. A more pertinent example would be a case in which there is £100,000 in a bank account that happens to be in the joint names of the parties. It is not disclosed by either party. If the Wife knows that the account exists, she can make reasonable enquiry herself (as she is a joint holder of the account) and cannot complain if she fails to do so. It is just possible, however, that she might not know about the account. If that is the case, she cannot make reasonable enquiry herself and she must rely on her husband’s disclosure being full and frank.

[55] In this particular case, the Wife did not have access to the trust deeds or accounts. She was reliant on the Husband making full and frank disclosure in that regard. Her solicitors did ask questions but both parties (not just the Wife) decided to abandon the formal Form E procedure and negotiate. In doing so, the duty of both parties to provide full and frank disclosure did not disappear. A husband cannot simply rely on an offer to provide full disclosure in a future Form E. He has to provide sufficient disclosure to give the wife a proper picture of his financial resources. In such circumstances, a Wife is entitled to rely on the information that is provided.

[56] I therefore have to decide three things:-

(a) Whether or not the information provided was full and frank?

(b) If it was not, was the deficiency material?

(c) If so, has there been unreasonable delay in making this application such that it would not now be right for it to proceed?

The Wife’s evidence

[57] Before turning to my findings of fact, I propose to review briefly the oral evidence I heard.

[58] I accept Mr Posnansky’s submission to me that the Wife was, in essence, a palpably honest witness doing her best to assist me. She was not devious or cunning. She told me that she read the disclosure that was given to her by the Husband, Mr SP and his lawyers. She understood it and relied on it. She said “I was ultimately told he had £15 million, so I agreed to take £7.5 million.” She added that she trusted the Husband and Mr SP. An interesting example of the level of her trust is that Mr SP remains as her accountant.

[59] I will, of course, have to deal with the differences in her evidence as to what occurred in the various meetings as to disclosure of HA Trust and EA Trust as against what is said by the Husband’s witnesses. I will return to this in due course. At this stage, I merely say that I do not consider her evidence in this regard undermines her case in the way that Mr Amos suggested, although I do accept that she was wrong when she said HA Trust and EA Trust were not discussed in Switzerland. I do, however, accept that she has no recollection of them being discussed. It would have been far better if she had said that but she is not lying to me. She has just misremembered.

[60] The one area in which I was initially slightly troubled related to the discussions between Deborah Bangay and Mrs DS. It is quite clear that the complaints made by Mrs DS to Miss Bangay were substantial. I had to ask myself why Miss Bangay referred to “poss non-disclosure” in her email to Mr Ribet. The Wife was adamant that the complaints related to the D Ltd litigation and the boys’ position. This could, indeed, justify Miss Bangay talking about whether or not there was a case for litigation but it is not immediately obvious how this could be non-disclosure.

[61] I then heard from Mrs DS. For Mr Amos to succeed in this respect, Mrs DS has to be complicit in hiding the fact that allegations of non-disclosure in relation to the trusts were raised with Miss Bangay. Mrs DS was clearly telling me the truth when she told me that she knew nothing about “the Press publicity in relation to the sale to Y plc”. She later said that she did not know what non-disclosure was and she did not tell Miss Bangay that the Husband had not given a full account. I accept her evidence in this regard. Mr Posnansky relies in addition on the fact that Miss Bangay has not given evidence to me. I do not place particular reliance on this. It may well be that Miss Bangay cannot remember the detail of such a brief conversation nearly three years ago.

[62] In making my findings in this regard, I have been heavily influenced by the email sent by the Wife to the Husband the very same day as Mrs DS talked to Miss Bangay, namely 20th September 2012. The email was sent at 1330. I have already noted that it was headed “D Ltd, the boys’ trusts and sky collection letters.” I am satisfied it contains the Wife’s complaints. The email is not alleging non-disclosure. It asks for information about the boys’ trusts and is clearly predicated on the basis that she still thought they were the beneficiaries. I reject as fanciful the suggestion that this was a dishonest trap. It was what she genuinely believed at the time. I therefore conclude that the Husband has not made out a case that the Wife must have known of the non-disclosure in September 2012 because Mrs DS raised it with Miss Bangay.

[63] Mr Amos asked me to find that the Wife was financially astute. He relies on her having signed the deed of loan from HA Trust and EA Trust to S Ltd (then K Ltd) in May 2008 which says that the trusts are “for the benefit of (the Husband) and his family” as showing that she was fully aware of the Husband’s interest in the trusts. He further relies on the fact that she signed the K Ltd accounts to 31st July 2008 which at Note 18 says that the trusts are “for the benefit of the director and his family”. He also relied on the fact that she corrected him in evidence when he suggested she was a director of K Ltd, saying that she was only the Company Secretary. Mr SP also told me that he thought she was financially astute. He told me that she regularly questioned aspects of the accounts and understood his explanations.

[64] I do not consider her to be financially astute. She left school after her “O” levels. She did not undertake “A” levels. She does not have a degree. She has no accounting qualifications. Prior to the birth of the children, she worked as a practice manager for a medical centre but she has been a homemaker and child carer ever since. I hope she will forgive me but I did not consider she was particularly astute. I accept her evidence that she signed where she was told to sign. She will have asked questions because she was interested and concerned but she would not have understood the significance of Note 18 to the K Ltd accounts. I accept that she did not remember the references to HA Trust and EA Trust in the Deed of Loan. Moreover, she did not know at the time that the loans had subsequently been assigned to the Husband. I doubt if she would have understood what that meant if she had been told.

[65] I do accept the evidence of both Mr CC and, to a lesser extent, Mr SP that she was able “to fight her corner”. She is not a wilting violet. Indeed, she stormed out of a meeting in the autumn of 2009 using an expletive. This does not, however, give her an understanding of the detail of the Husband’s financial position. For that, she was reliant on him and Mr SP.

The Husband

[66] I did not take the same view of the evidence of the Husband. I consider he was evasive and at times misleading in his evidence as to the disclosure provided. At other times, I regret to say that I find he did not tell me the truth.

[67] At the very beginning of his cross-examination by Mr Posnansky he was asked about Note 12 to the Form M1 which said that “the primary beneficiaries are A, B and C”. He was asked what “primary” meant. He told me it meant “ultimate”. It does not mean “ultimate” as he very well knew. He was extremely evasive when being asked about the amounts received from HA Trust and EA Trust by both the children and himself. Initially, he told me he did not know when that was clearly not correct. He was asked about the passage in his statement in which he said that “When we considered the assets to divide between us, we considered only the assets in our names or in which we had a crystallised and clear interest.” He insisted that they had discussed HA Trust and EA Trust although he then said that “HA and EA were not resources that I had control of”. He hesitated when Mr Posnansky asked him if he considered he had a duty of disclosure in regard to these trusts before accepting that he did.

[68] His answer to repeated questioning about the content of the disclosure was that it was “muddled”, relying on the contention that it would have all become clear in the Form E. He accepted that Mr SP’s November 2009 schedule of assets did not mention HA Trust and EA Trust saying “it did not include everything”. He denied that he was the principal beneficiary of HA Trust and EA Trust. I cannot accept his denial in this regard. He told me he had forgotten that the Letter of Wishes existed. I cannot accept that evidence. In relation to the sum of £7.86 million that he has received from HA Trust and EA Trust since the order, he told me he had not requested such sums. That is completely wrong as the evidence of his brother MG shows.

[69] Finally, he told me he did not know that just under £4.2 million had been paid into the two trusts in February 2010. Given his other evidence, I do not accept that this was the case. This was a big transaction, whereby T received £12 million from Y plc. I simply do not accept that MG would have concluded that deal without keeping the other shareholders informed. In relation to HA Trust and EA Trust, I am quite clear that the Husband was viewed for these purposes as the shareholder. I also remind myself that MG was not even the majority shareholder let alone a 75% shareholder. In fact, this finding does not matter as I am sure that the Husband owed a duty to find out the position in the context of divorce proceedings.

Mr SP

[70] I regret to have to say that I was equally unimpressed with the evidence of Mr SP. At one point, his guard slipped and he referred to Burges Salmon as “our solicitors”. This made it abundantly clear that he was approaching this negotiation very much from the view point of the Husband. I accept Mr Posnansky’s submission that, in his evidence, he acted as an “apologist” for the Husband and that, at the time, he did not ensure that the Husband complied with his duty of full and frank disclosure.

[71] He said in his statement that he did not believe that the Husband had ever sought to hide HA Trust or EA Trust or the assets that they contained. Yet, he was constrained to accept that the Wife did not know about the existence of the Letter of Wishes or its terms. He accepted that she did not know about the £4.2 million cash placed in the trusts in February 2010. He did not believe she knew the number of T shares in the trusts. He was not sure if she knew about the £500,000 distributions to the Husband in February 2009.

[72] He accepted that his November 2009 assets schedule did not include any reference to HA Trust and EA Trust. He basically said that he did not appreciate that discretionary trusts had to be included. Like the Husband, he fell back on saying that they would have been included in the Form E but, even then, only after he had asked Burges Salmon if they had to be included, which clearly indicates that he was attempting to see if mentioning them could be avoided. He also fell back on not being the accountant for those trusts and not having the information available. He excused the fact that the notes to the Form M1 were inaccurate on the basis that he was concentrating on the figures but this rang very hollow.

[73] In relation to the Letter of Wishes, he said at Paragraph 24 of his statement that “the intention…was not to prefer LG over the boys but to give LG a say in how the assets were used.” This was simply not correct. Indeed, the fact that the Husband has received a total of £9.36 million whilst two of the boys have received nothing and one has been given £12,000 per annum for two and a half years, shows the inaccuracy of this statement.

[74] Finally, he was asked about his responses to the Wife’s attempts to obtain information from him in 2011 and 2012. I do not consider his responses were either helpful or accurate, particularly the response dated 26th September 2012. He had been asked by the Husband to deal with this yet he said “he was not privy to the detail”. I consider that answer to be very economical with the truth and designed to mislead the Wife.

The other three witnesses

[75] I was impressed by the evidence of the other three witnesses, the Husband’s father, Mr G Snr, his brother, Mr MG and the family solicitor, Mr CC. All three were witnesses of truth. None, however, damages the Wife’s case.

[76] I did not consider the Husband’s father had anything useful to say and I was surprised he needed to be cross-examined. He did confirm the accuracy of the Speechly Bircham letter but the trustees have never suggested otherwise. It is only the Husband that has done so. Unlike his son, he confirmed that “primary” meant “first”.

[77] Mr MG was an impressive man. I can understand why he has done so well. He told me that he regarded the shares in T as destined for the Husband. He was asked about the telephone call with the Wife in the autumn of 2012. He told me that he considered the main purpose of the call was the Wife’s wish to get HA Trust and EA Trust to finance the boys.

[78] I consider Mr CC to be a careful and conscientious solicitor who accurately recalled to me the meeting he had in Switzerland with the parties. I am absolutely certain however that Mr Amos is wrong when he says that, for the Wife to succeed, she has to show that Mr CC has perjured himself. It is, of course, right that the Wife denies that HA Trust and EA Trust were discussed in Switzerland. Mr CC’s attendance note proves that they were. His initial attendance note says “Reference had been made to the EA and HA Trusts but it was agreed that no reference to those would be made in this document.” It was subsequently changed to “in the consent order.” I reject Mr Posnansky’s submission that there is something suspicious about this. The agreement was not to refer to them in the consent order. I doubt if anyone had even considered the attendance note at the time. Moreover, they are referred to in the Attendance Note so the first version does not make sense.

[79] It is also right to note that in version 10 of the draft order, prior to the agreement not to refer to the trusts, Mr CC had written in manuscript the names HA Trust, EA Trust, T (T) and 1999 Trust.

[80] I have already indicated that I do not see that this evidence helps the Husband at all. The Husband and Mr SP accepted that the Wife did not know about the Letter of Wishes. The Wife was being led to believe that these trusts were for the children and nothing in the meeting corrected that impression. If that was not the case, why would the existence of these trusts be ignored and not referred to in the consent order? They were not mentioned because the Wife was being led to believe that any interest the Husband had in these trusts was not material and that they were for the boys.

My findings

[81] I consider the disclosure as to the HA and EA Trusts by the Husband and Mr SP was woeful. It was clearly not full and frank. The first letter from Burges Salmon was not muddled. It was completely false. Either the Husband or Mr SP gave Ms Hallam that information. The Husband saw the letter. It was never corrected. It was materially inaccurate. When it refers to “the” family trust holding shares in T, it says that the Husband cannot benefit. Not only was this wrong, it was fundamentally wrong given the Letter of Wishes. In circumstances where the Husband himself says in his statement that “given the slightest imperfection, there was a good chance (the Wife) would be back for more”, one can only conclude that this was deliberate.

[82] It is simply not good enough for the Husband to argue that the Wife did not “raise any further enquiries prior to the order being submitted to the court”. It is equally not good enough to argue that the letter from Burges Salmon was some sort of preliminary opening gambit that can safely be ignored.

[83] At no point thereafter was the position corrected. The approximate wealth statement prepared by Mr SP in November 2009 makes absolutely no reference to HA Trust and EA Trust. There was no disclosure of the number of shares in T held by the trusts. Equally, there was no disclosure prior to agreement being reached of the values attributed to those shares in 2008. The value was not insignificant at just over £3 million. I reject the contention that the Husband and/or Mr SP disclosed that he was a beneficiary in November 2009. I am by no means convinced that they did so in Switzerland either but, even if they did, the impression was undoubtedly given that this was a trust for the children.

[84] The Form M1 was equally misleading. I accept that a strategic decision was taken by the Husband and/or Mr SP to include some details of HA and EA. I consider this was likely to be “back covering”. The detail given however was just plain wrong. I cannot accept that it was “muddled” for a second time. It was wrong to say that the Husband was a potential beneficiary of both trusts. He was a beneficiary and he had benefited. It was wrong to equate the HA Trust with the 1997 A & M settlement. It was wrong to say that the children were the primary beneficiaries even if the sentence then tacks on that “(the Husband) is also a beneficiary”. Most fundamentally, it was wrong to give 2008 figures, given the very significant changes thereafter. I will have to return to this in due course. The disclosure in relation to EA Trust was much more accurate, although even there the Letter of Wishes is not disclosed and again the 2008 figures are used.

[85] I also remind myself that the Wife and her advisers had virtually no time to consider this disclosure. The Husband himself makes this point in a different context when he says that, although the disclosure was muddled, “given the time pressures, I did not pay too much attention to this”.

[86] I have come to the clear conclusion that there was a breach of the duty of full and frank disclosure.

Materiality

[87] I now turn to materiality. I can deal with this very easily. By May 2010, EA Trust and HA Trust contained £4.2 million in cash. I do not know the value of the remaining T shares but, even if the 2008 figures were used, the value ascribed would have been around £3 million. I am by no means sure what the effect of the February 2010 agreement would be on this value but I remind myself that Mr G Snr said that the shares could be worth a lot of money.

[88] I find that the Husband knew that there was £4.2 million in the trusts in May 2010. On the balance of probabilities, I find that this was the reason that full and frank disclosure was not given. I further consider that he was very hopeful that further substantial sums would be earned from the Y plc deal in the foreseeable future. In any event, if I was wrong about his actual knowledge, it does not assist him as he had an obligation to find out the true position from the trustees and disclose it.

[89] The disclosed assets were divided equally. I am of the clear view that it cannot be said that the existence of a further £4.2 million in cash along with shares with a value in 2008 of around £3 million was not material. It was material. I am not saying that the Wife would have received half of this sum. I accept that the fact that the Husband was only the principal beneficiary would have to be factored in as would the source of the shares, although the money previously extracted from the trusts was included in the computation. Moreover, the company was established during the marriage and the allocation by Mr MG of the shares to his brother also took place during the marriage. I am therefore quite satisfied that the non-disclosure was material.

Alleged delay

[90] I now turn to delay. I am quite satisfied that the Wife left court on the 1st June 2010 in the belief that the main/principal/primary beneficiaries of HA Trust and EA Trust were the children. I accept that the fact that the Husband was also a beneficiary had been disclosed, but this was in a very misleading way. She did not know he was the principal beneficiary.

[91] I am satisfied that her main focus thereafter was to get “justice” for the boys and to ensure that they benefited from the trusts. Her email to Mr SP on 9th November 2011 is clear that she was asking about “the boys’ trusts” and “any impact the sale of T to Y plc would make on them”. It is clear from this that she did not think the trusts were for the Husband. She did not get a clear response in writing.

[92] When she tried again on 20th September 2012 in her email to the Husband, the email is headed, amongst other things “the boys’ trusts”. The body of the email confirms this. She asks how the T Trust affects the boys. She specifically says that she had always understood it was exclusively for the boys’ benefit. She was not being deceitful. She had no reason to lie. This was what she thought. She did not get a clear answer, notwithstanding that this was after the January 2012 deal with Y plc that had produced further cash of nearly £9 million for the trusts and after the Husband had received over £7 million. If she had been given a clear and truthful answer, there would be no defence to the delay point but she was not.

[93] It is equally clear that she continued to have the view that the trusts were for the boys when she approached Withers on A’s behalf in 2014. The letter twice refers to the children being “the” beneficiaries. As soon as she had a clear response on 29th May 2014 and she realised the true position, she promptly took action. This, of itself, indicates strongly that she did not have this information previously. I reject the suggestion she waited until Y plc had paid up. After all, the final deal with Y plc happened in January 2012, over two years earlier so it is impossible to see why she would have waited had she known.

[94] I find that she acted promptly when, for the very first time, proper disclosure was given to her. Even then, it was given to her by the trustees. It was not given to her by the Husband or Mr SP.

[95] Can it be said that she should have done more earlier? It is perhaps a shame that she did not follow up matters to the trustees much earlier. She was clearly being given the brush off by the Husband and Mr SP. I am not prepared to say, however, that this disentitles her to relief. She asked the right questions to Mr SP and the Husband in both 2011 and 2012 and she was fobbed off. They cannot now rely on their own failure to assist her.

Conclusion

[96] It follows that I am satisfied that the Husband breached his obligation to give full and frank disclosure prior to the June 2010 consent order. The non-disclosure was material. The Wife did not delay once the information came into her hands.

[97] I therefore grant the Wife permission to appeal out of time. I allow the appeal. I set aside the consent order made on 1st June 2010. I will now hear submissions as to the consequential directions required.

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