Thursfield v Thursfield [2012] EWHC 3742 (Ch)

Case No 1BM30278[2012] EWHC 3742 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY, Birmingham Civil Justice CentreDate Date: Friday, 21 st December 2012
Before
HIS HONOUR JUDGE PURLE QC
B E T W E E N:
Between
LINDA THURSFIELDClaimantDAVID THURSFIELDDefendant
MR. L. ASHWORTH QC (instructed by SGH Martineau LLP) appeared for Claimant.MR. A. MAGUIRE (instructed by Bircham Dyson Bell LLP) appeared for Defendant.Hearing Hearing date: 9 th November 2012
JUDGMENT
[1]By this application, the Claimant seeks disclosure relating to a trust known as the David Thursfield Family Trust. The documents sought are 1. The trust deeds and/or declaration of trust; 2. Any letter of wishes; 3. All documents relating to the settlement of assets on the trust including any deeds of transfer or equivalent documents; 4. All documents identifying assets settled on or held by the trust from time to time; 5. Minutes of meetings of the trustees of the trust; 6. Documentation relating to the addition or exclusion of beneficiaries; 7. Documentation relating to any change of the trustees; 8. Documentation relating to any amendment to the terms of the trust; 9. Documentation relating to any power of revocation of the trusts if separate from the trust deeds. David Thursfield is the Defendant, and her former husband. She does not claim to be a beneficiary of that trust. On the contrary, the inference is that the trust was established not to provide for her, but to defeat her matrimonial claims. In that connection, she currently has a judgment from the court in Michigan (now under appeal) which she seeks to enforce here. I made freezing orders, with associated disclosure, at an early stage. Subsequently, on 6th December 2011, I continued the freezing orders, and made further disclosure orders. The Defendant appealed, but the appeal was ultimately unsuccessful as the Defendant failed to provide the security required of him by the Court of Appeal.[2]More recently, on 9th November of this year, I found the Defendant guilty of contempt of court in failing to comply with the disclosure orders I made on 6th December 2011. Initially, there was a complete failure to comply. That was followed by purported compliance which I found to be deliberately deficient in a number of respects.[3]The Defendant claims to have no assets of his own apart from interests in two pension funds. He says that in 2005 he purchased a property in the Bahamas held in an irrevocable trust. He also claims that “My wife was appointed the sole beneficiary of this trust. I have absolutely no interest in or control over this trust”. The reference to “my wife” was a reference to his second wife. As I observed in my judgment committing Mr Thursfield to prison: “…the strong inference is that the establishment of that trust was (or may have been) a device to defeat his former wife’s claims”.[4]He has also revealed that the trust was called “The David Thursfield Family Trust” and that the trustee was The Private Trust Company Limited of Charlotte House, Charlotte Street, Nassau, Bahamas. He has not however produced any documentation relating to that trust, though plainly he was the settlor. It is also clear from other evidence that he has in the past exercised de facto control over the affairs of the same trust company in relation to a property in Cheltenham known as Prospect House.[5]It is important that I remind myself of why I made the disclosure Orders I did on 6th December 2011. These were not the first disclosure orders I made. I had previously ordered disclosure of assets ancillary to the freezing order. The answers indicated that the Defendant had, so far as he could, parted with his assets, and that led the Claimant to seek further disclosure, with supporting evidence, of who was funding the litigation and on what terms, the source of the third party funds (so far as known) and (broadly) what had become of the Defendant’s former wealth. I ordered that further disclosure upon the following ground:
“the court has a wide jurisdiction to make such other orders as are required to ensure that its previous orders are effective, including disclosure of the source of funding …”
I also reasoned:
“In the present circumstances there is a very real possibility that there remain assets available to the defendant which are in truth his, and which should therefore be disclosed…”
I concluded:
“It is said that there is a risk here of intrusion into third-party privacy. I agree that there is such a risk but it is sometimes necessary to take that risk on board in order to ensure that orders of the court are fully effective. This is such a case. I shall therefore grant the orders that are sought.”
[6]All the Court has been told of the funding arrangements is that the Defendant’s second wife is the funder. The terms of the funding and (more importantly) the source of those funds is not revealed. The existence of the David Thursfield Family Trust has however been revealed for the first time.[7]There is every reason to believe that the David Thursfield family trust is the recipient of assets which were once the Defendant’s and may still be his for all practical purposes. In those circumstances, the disclosure sought is reasonably ancillary to that required by the previous orders, which have not been properly complied with. I accordingly find that I have jurisdiction to make the order sought to ensure that the orders previously made are effective, and that it is right to do so. Mr Maguire for the Defendant complains again of privacy intrusion but, as I previously held, this is sometimes necessary. Nothing has changed in that respect since December 6th 2011.[8]Mr Ashworth QC referred me to the decision of the Court of Appeal in North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11, where similar disclosure to that now sought was ordered. The following was said at para 38:
“The circumstantial evidence gave reasonable ground to infer that there was in truth some understanding or arrangement between the appellants and the trustees by which they were to shelter the appellants’ assets, consistent with the appellants’ real aim, and that the nature of that understanding and arrangement was such that the trustees would take whatever steps the appellants wished in the administration of the trusts.”
[9]The issue in that case was whether the appellants had “control” of documents for the purpose of CPR 71.2 and CPR 38.1. The claimant was a judgment creditor (unlike the present Claimant, who does not have an English judgment entitling her to the benefit of Part 71) and former beneficiary of the trust in question, which the Claimant is not. These are distinguishing features which Mr Maguire relies upon. I am not however constrained in the present case by notions of control. The jurisdiction I am exercising is the power to grant an injunction, in this case a mandatory injunction to provide information and disclosure, under section 37 of the Senior Courts Act 1981. The order is justified if I reach the conclusion that the Defendant can in fact provide the necessary information and disclosure, or will be able to do so, irrespective of technical notions of control. I am satisfied that he can and will be able to provide the necessary information and disclosure. As it happens, the evidence concerning the Defendant’s control of Prospect House also indicates that he is likely to have control of the documents sought, but that is not technically a pre-condition of my power to make an order.[10]In the circumstances, I will make the order that is sought, subject to arguments about timing and precise wording.