HC v FW [2017] EWHC 3162 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No DH15D02945[2017] EWHC 3162 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/11/2017
Before
THE HONOURABLE MR JUSTICE COBB
Between
HCApplicantFWRespondent
Timothy Bishop QC and Marina Faggionato (instructed by Stewarts) for Applicant (wife) (HC)The Respondent (husband)(FW) was neither present nor representedHearing Hearing dates: 13 November 2017
JudgmentThe Honourable Mr Justice Cobb :Introduction
[1]By application dated 1 September 2015, HC (who I shall hereafter refer to as “the wife”) seeks a full range of orders for financial relief following the breakdown of her marriage to FW (who I shall hereafter refer to as “the husband”).[2]Since November 2015, the wife’s claim has been pursued on her behalf by her litigation friend, Emma Gaudern, a solicitor with expertise in Court of Protection and related matters. She is represented by Timothy Bishop QC and Marina Faggionato.[3]The husband no longer has lawyers acting on his behalf in this litigation in this jurisdiction; he has not been present at the final hearing, and has not been represented.

Determination of the application in the absence of the husband

[4]The husband is believed to be abroad, but his precise location now, as indeed for phases of this litigation is a mystery. At the time of issuing proceedings, the wife did not know the husband’s whereabouts, and the court accordingly gave directions for substituted service on the husband. That directions order, together with the Form A and other supporting documentation, was in fact successfully served on the husband by a range of substituted methods, and he responded by instructing distinguished London-based family law solicitors; they in turn instructed specialist junior counsel. The First Appointment, listed before a District Judge, was adjourned, of the court’s own motion, and the proceedings were transferred to the High Court. The case was allocated to me. When the case was finally listed before me on 29 July 2016, I gave specific leave (pursuant to rule 27.3 FPR 2010) for the husband not to attend given his residence abroad and his apparent ill-health (see [55] below); he was then, of course, fully represented. No point was taken that earlier service of the documents had not been effective, nor was it argued that the substituted service had in any way infringed the provisions of rule 6.19 or rule 6.43 FPR 2010 and PD6A para.6.1/6.4 FPR 2010.[5]The husband then engaged with the proceedings for a period. He filed and served relevant documentation including a Form E (July 2016); he made an application for permission to adduce expert evidence, which was not in the event pursued. The Financial Dispute Resolution Appointment (FDR) took place on 18 January 2017 before Holman J; the husband participated in this process, was present in court, and was represented. The FDR did not produce settlement. The husband has taken no further overt step in the proceedings. Mr. Bishop advises me that the wife’s lawyers tried to progress the case during the spring and summer 2017, but their actions provoked “little response” from the husband or his solicitors.[6]In late August 2017, the husband’s solicitors made formal application to come off the record; I granted their application. I conducted a further directions hearing on 7 September 2017; the husband did not attend nor was he represented, and no explanation for his absence was provided. At that hearing, I gave various directions to set the case up for trial, which was then timetabled for a 10-day hearing in May 2018. I specifically directed that the husband should communicate with the wife’s solicitor within two weeks with an address for service, and I further requested that he provide a reliable means of communication. I directed that he be served inter alia by e-mail (to an address known to have been effective in the past), by SMS messaging to his last-known mobile phone number, by private message to the husband’s private Facebook account, and via a former professional advisor of the husband’s.[7]In October 2017, the wife’s solicitors issued a fresh application seeking the court’s direction to bring forward the trial date. Having served the husband with documents in accordance with my earlier direction, and having received no response, the wife (or more accurately her lawyers) were convinced that the husband was deliberately and wilfully not engaging with the process. Their wish for an earlier hearing was specifically and further prompted by a belief (evidenced in part) that the husband was seeking to transfer, or otherwise place, assets out of the wife’s reach. I acceded to the application for an earlier hearing date, provided that I could be satisfied that all proper efforts could be taken to notify the husband. I directed that the husband be re-served with the new case management timetable by methods which appear previously to have been successful (e-mail, text and via a friend of the husband’s), and in additional ways (including via his son) which I felt were likely to bring the matters to his attention; these methods of service are all contemplated by the broadly crafted provisions of rule 6.19 FPR 2010. I then varied the timetable to accelerate it significantly; I made clear on the face of the order that final orders may be made at this hearing.[8]I am satisfied from a recently sworn affidavit of an associate solicitor at Stewarts that all these steps were taken to serve the husband with relevant documentation.[9]I was further advised by Mr. Bishop at the hearing that a firm of lawyers in Myanmar have very recently corresponded with the wife’s solicitors in relation to the matters under consideration, purportedly on behalf of the husband albeit via ‘intermediaries’, and specifically under the mantle of ‘without prejudice’. Without breaching the privileged status of that documentation, Mr Bishop was able to tell me that his solicitors have notified the Myanmar lawyers of this hearing date.[10]Moreover, correspondence has been sent (on 20 October) to the liquidator of PS Ltd. (‘PS’) (one of the BVI listed companies in which the husband had placed significant assets: see [31] below) which has recently been placed into voluntary liquidation, alerting them to the final hearing date, and asking them to pass this information on to the husband. Interestingly, the liquidator is a director of a firm of accountants which had routinely advised the parties during the marriage. It is notable that correspondence had been sent on 1 September to the same firm (albeit to the liquidator’s partner) on issues relating to service, and this had prompted the reply that the husband “is no longer in Singapore”, and “we have ceased acting for him some time ago”; the parties’ accountant failed in that correspondence to reveal that a partner in the same firm is the newly appointed liquidator of PS.[11]Rule 27.4(2) empowers me to proceed in the absence of a party (the husband), provided that I am satisfied that the said party has had reasonable notice of the application, and specifically of this hearing, and that the circumstances of the case justify proceeding in his absence (rule 27.4(3)(a) and (b)). I am under an obligation to try this case justly and proportionately, and while this includes a duty to ensure that the parties are on an equal footing (rule 1.1(2)(c) FPR 2010), I am equally obliged to save expense and to deal with the case expeditiously and fairly (rule 1.1(2)(d)/(a) ibid.).[12]I can confirm that I am satisfied that the husband has had reasonable notice of the application, and specifically of this hearing. I set this history out reasonably fully above to explain why I took the unusual course of proceeding with the final hearing, and to the making of a final order explained by this judgment, in the absence of the husband. I see no benefit in prolonging the proceedings, and waiting for many months for a listed 10-day hearing when the husband has taken no step to engage with the process since the FDR; indeed, there is potentially significant disbenefit to the wife and the administration of justice were I to do so.[13]In order to reach a determination on the wife’s application at this final hearing, I have received and read the formal pleadings, the Forms E of both parties (albeit that they are over one year old: July 2016), questionnaires and responses, and two section 25 statements prepared and signed by Ms Gaudern on behalf of the wife. I have received and read a number of expert reports, including those from:- i) Dr. Amy Izycky, Clinical psychologist, dated 19 October 2015, and 21 November 2016 (wife’s instruction); ii) Katherine Kirby, registered nurse and full-time care consultant (joint instruction), dated 4 November 2016, with supplementary letter, dated 19 November 2016; iii) Dr. Donald Brechin, Consultant Neuropsychologist (joint instruction), dated 7 November 2016, and supplementary letter 20 November 2016; iv) Dr. Ruth Kent, Consultant in Neurological rehabilitation (joint instruction), dated 29 December 2016; v) Patti Summerfield, social worker and rehabilitation consultant and needs assessor, specialising in the field of acquired brain injury (wife’s instruction), dated 27 July 2016 and 15 June 2017; vi) BDO Stoy Hayward (joint instruction), dated 11 January 2017. I have been provided with a note of the points of agreement and disagreement prepared by Ms Kirby and Ms Summerfield, following their meeting on 16 October 2017.[14]I received written and oral submissions from Mr. Bishop QC and Miss Faggionato. I was invited to hear oral evidence if required, but having reviewed the documents, saw no need to do so.

Background

[15]The husband is 68 years old; the wife is 64 years old. The husband is German, and the wife Singaporean by birth and nationality. They met in about 2001 or 2002 and on the wife’s case lived together from about 2002 (the husband says that their relationship commenced in 2004). They were married in December 2006 in Singapore. Both had been married before. The husband has one son, (N). The wife has two children – a son (R) and a daughter (S). They separated in August 2014. Decree nisi was pronounced in January 2017.[16]During the marriage, the couple enjoyed an extraordinarily luxurious lifestyle; they had no matrimonial home as such, but lived in a series of suites in deluxe hotels around the world, principally in Singapore; the husband states that from 2007 it was the parties’ joint intention to settle permanently in Singapore, hence their property investments there (see [39]-[40] below). The parties spent extended time also in Monaco and Switzerland. The wife asserts in her form E that “our days consisted of socialising, wining and dining, beauty treatments and luxury shopping. We had staff to assist us”. I do not detect any dispute, from the material filed, that the wife took an active role in organising and managing the financial affairs of the parties. The parties had apartments in Singapore and Monaco, at least in part for the storage of possessions and for use as personal offices.[17]The wealth to support such extravagant living derived from the husband’s long-established business, and from a substantial inheritance from his own mother in 1997. The wife had a relatively modest portfolio at the point of the marriage, owning at least two properties, including a former housing association flat in Singapore, and a mews house in Central London (“the Mews House”).[18]In 2013, the lives of these parties took a significant and irreversible turn; they were jointly subjected to a serious assault. Following this incident, they were conveyed to hospital where they were medically examined. When CT scans were performed of the wife’s skull, a large benign brain tumour (a supratentorial meningioma), plainly unconnected with the assault, was revealed. Over the course of the next few weeks, the wife underwent five operations to excise the meningioma, evacuate it, and insert a ventricular drain. Medical complications which followed have caused the wife neurological and neuropsychological impairments (discussed more fully below [67] et seq). For a while, the wife recuperated in Singapore, but in 2014 she travelled to England to continue her recovery close (geographically) to her son; she alleges, although I know the husband denies, that the husband was unsupportive of and unsympathetic to her in her post-operative recovery period. The husband made some financial provision for her, though this petered out after a few months; the husband does not explain his lack of financial support, but vigorously denies (and maintained through counsel at the First Appointment that he was “immensely distressed by”) the suggestion that he has “washed his hands” of his responsibility for his wife. The wife moved into rented accommodation in the North-East of England, where she remains.[19]By 2015, it was clear that the marriage was at an end. It was equally clear that by reason of the damage to her brain caused by the tumour and consequent treatment, the wife’s life had changed dramatically, with long-term consequences for her well-being.

Wife’s capacity to litigate?

[20]A divorce petition was issued on 1 September 2015. At that time, the wife was assessed by Dr. Izycky, Clinical psychologist, as being unable to demonstrate even a baseline level of understanding of the information relevant to her decision to instruct a solicitor to manage the financial remedy proceedings. In light of that assessment (as I have earlier mentioned), at a directions appointment in November 2015, a litigation friend was appointed for the wife. Dr. Izycky has seen the wife regularly since that time, and has confirmed that the wife continues to demonstrate a deficit in her memory which has prevented her from recalling key information relevant to the proceedings. Dr. Izycky opines that the wife is unable to fulfil at least three components (understanding, retaining and weighing) of the functionality test set out in section 3(1) of the Mental Capacity Act 2005 (‘MCA 2005’). As to communication, Dr. Kent is of the view that she does not volunteer information readily and is somewhat inarticulate.[21]At the adjourned First Appointment before me in July 2016, the husband (through counsel) questioned the incapacity of the wife to litigate, drawing attention to the apparent inconsistency of the wife’s incapacity to litigate, but capacity to(a) grant a Lasting Power of Attorney (LPA) to her son in March 2015 and separately in November 2015, and(b) transfer her interest in a property to her son in early 2016. Dr. Izycky had been present as ‘certificate provider’ in March 2015 on the grant of the LPA, and Ms Gaudern in November 2015 in each case declaring their satisfaction that the wife had capacity to enter into those specific arrangements.[22]In view of the husband’s earlier expressed concern, I called for submissions specifically on this point at the final hearing. Miss Faggionato argued that the husband’s disquiet is misplaced; she relied on the continuing assessment of Dr. Izycky and contended, accurately of course, that assessment of capacity is issue-specific. This statement of legal principle is most clearly, and authoritatively, set out by the Court of Appeal’ in PC v City of York [2013] EWCA Civ 478 at [35] per McFarlane LJ: “The determination of capacity under MCA 2005, Part 1 is decision specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decisions, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to be embellished”.[23]I am satisfied, on the basis of the evidence before me, that the assessment of capacity to litigate has been properly undertaken; it is not diminished or undermined by the wife’s apparent capacity to make decisions in other domains of her life.

The issues

[24]What is not in issue in this case is that the wealth of the couple was pre-acquired and/or inherited by the husband. In the circumstances, Mr. Bishop realistically presents this as a case based upon the wife’s ‘needs’.[25]In this regard, the following issues require consideration: i) The value of the assets of the parties; ii) What is known about the husband; iii) The wife: a) Her reasonable needs; b) Her medical condition and specific needs; c) Future care requirements; iv) The basis of computation for future provision: Ogden or Duxbury; v) The section 25 review: a just award. The value of the assets of the parties.[26]I have sought to define the assets of these parties from the documents before me, relying on a blend of asserted facts, and facts evidenced by contemporaneous documents. I am advised that there are multiple files of disclosed material, but counsel have spared me the burden of examining all but a very few. I feel more confident in basing factual findings on inferences drawn from contemporaneous documentary evidence, and known or probable facts, rather than assertions or recollections (per Leggatt J in Gestmin SGPS SA v(1) Credit Suisse (UK) Ltd(2) Credit Suisse Securities (Europe) Ltd. [2013] EWHC 3560 (Comm). I have specifically considered two preliminary questions on the facts of this case: i) What is the evidence of the assets or wealth of the parties, and what can reasonably be gleaned as to their wealth by inference? ii) Which if any assets are matrimonial, and which are non-matrimonial i.e. pre-acquired or inherited?[27]Preliminary question [26](i): The first is an important question, given the absence of customary or up-to-date disclosure from the husband. I bear in mind that, when he was represented and with the benefit of legal advice, the husband signed a Form E on 11 July 2016 declaring the facts stated therein to be true, and that the information contained therein is/was “full, frank, clear and accurate”. This at least provides some evidence (even if partial and/or selective), which emanates directly from the husband, of his financial circumstances.[28]I further take into account that, following the FDR, to all intents and purposes the husband withdrew from the proceedings, has failed to comply with my order for the updating of his financial information, and has not dealt with the deficiencies in his earlier disclosure. Specifically, he failed to disclose the voluntary liquidation of PS. Mr. Bishop invites me to draw adverse inferences from this non-engagement, and the consequent non-disclosure, citing NG v SG [2011] EWHC 3270 (Fam) esp. at [16]. As to this, I draw the following conclusions: i) There is no doubt that the disclosure from the husband has been materially deficient; his financial information is now more than 12 months out of date; he has failed to comply with orders for updated disclosure; ii) A significant question over non-disclosed income-producing assets is raised by the fact that in 2009, the husband and wife co-signed a questionnaire (see [49] below) declaring that their income needs were in the region of US$2.5m p.a., yet most of the investment assets in PS were believed to be non-income producing; iii) The husband has volunteered minimal information relating to EP Ltd. (‘EP’) or AV (a private equity investment fund: see [36] below); the court is still left knowing nothing about the value of the husband’s indirectly held investments in AV; all that is known is that it distributed US$44k to him in September 2016; iv) The husband appears to have been active in managing his financial affairs, including in drastic ways, (i.e. placing PS in voluntary liquidation) while taking no steps in the proceedings; this, in itself, fuels the inference I am invited to draw. Mr. Bishop invites me to attach a notional value of £5m to the undisclosed assets. There is no science attached to the calculation of this figure; it is an arbitrary sum. As it happens, it makes no or no material difference to my evaluation of the case as a whole, precisely what value (if any) I attach to this ‘inference’ of non-disclosure, given that the case has been realistically argued, and rightly so, on the basis of ‘need’. Insofar as I do draw inferences as to the husband’s wealth, I do so by interpreting the financial data in such a way as to give the wife the benefit of the doubt in the assessment of the assets, rounding up rather than rounding down my computation.[29]Preliminary question [26](ii): The husband deposes (Form E) to the fact that “the majority of my financial resources were derived from an inheritance gifted to me by my mother in 1992 … there was also some capital and income generated from a previous career…”. The monies actually became available from the inheritance in 1997. Mr. Bishop sensibly does not dispute that the assets are predominately pre-acquired and therefore non-matrimonial. This is relevant when considering all the circumstances of the case (“the time when and circumstances in which the property was acquired, are among the relevant matters to be considered”: Lord Nicholls in White v White [2000] UKHL 54; [2001] 1 AC 596, [2000] 3 WLR 1571, [2000] 2 FLR 981). The relevance of the origin of the funds is likely to be greater in a short marriage case than a long marriage case:
“In the case of a short marriage, fairness may well require that the claimant should not be entitled to a share of the other's non-matrimonial property. The source of the asset may be a good reason for departing from equality. This reflects the instinctive feeling that parties will generally have less call upon each other on the breakdown of a short marriage. … With longer marriages the position is not so straightforward”
Lord Nicholls in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 at [24/25]). This is a marriage of less than median length, to which the comments above are therefore apposite.[30]I have further paid particular attention to the helpful analysis of the treatment of non-matrimonial property by Mostyn J in N v F [2011] 2 FLR 533, culminating in his four-step approach discussed at [14] (introduced by consideration of whether the existence of pre-marital property should be reflected at all. This depends on questions of duration and mingling), to which he adds at [15]: “Of course, all of this is subject to the question of need. As Lord Nicholls of Birkenhead said in White ‘however, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property'”. (emphasis added). Companies[31]PS: The husband deposes to the fact that his own inheritance from his mother was initially managed by a Jersey-based trust, which was wound up in 2008 or 2009 following a series of unwise and unprofitable investments. The residual fund was then invested through a BVI listed company, PS. This was utilised by the husband to hold investments during the marriage and into the period of the parties’ separation. PS holds (or held), I believe, a mix of cash accounts, equities and “alternative investments” in the form of collectible rare gold coins. The parties were appointed directors of PS in 2009, and the company originally had two shares, one in the husband’s name, and one in the wife’s. In two separate transactions in 2010 and 2013, altogether eight more shares were created.[32]In July 2016, at the time of the First Appointment, and the preparation of the Form E, the husband valued his 80% shareholding in PS at c.£29.7m. Mr. Bishop ascribes a current value of £26,346,000 to the shareholding in light of the available disclosure.[33]It is the husband’s case (in this regard I reference his replies to questionnaire) that once the property portfolio had been created in Singapore (see [39] below) the parties agreed that the wife no longer needed a share of the PS assets, as she would have appropriate “financial security that would generate financial resources in excess of her needs in the event of the [husband]’s death”. It was in those circumstances that the wife transferred her share in PS to the husband’s son, N, in January 2013. Simultaneously (January 2013), again according to the husband, the parties executed new wills “and the [husband] left all such real and personal property that was situated in Singapore at the time of his death to the [wife]”.[34]Thus, by the time of the breakdown of the marriage, the shareholding in PS was held as to 80% to the husband and 20% to the son. The background to this re-configuration is not unimportant.[35]By chance, the wife’s solicitors recently discovered that PS was being placed into voluntary liquidation; this had happened shortly before the listed directions hearing, and at a time when the husband still had solicitors on the record as acting for him. I can confirm that this step was certainly not contemplated at the time of the First Appointment before me. PS is not a trading company so there will be no creditors; the entire assets will revert to the shareholders.[36]EP: This was a BVI company through which the husband claims that he made most of his earlier investments (long before he met the wife). The company was struck off the BVI company register in 2012. I conclude that the wife must be wrong in asserting that it was through this company that the parties conducted their day-to-day financial affairs, certainly insofar as she may have been referring to the latter stages of the marriage. The financial disclosure provided by the husband identified the existence of independent private equity investment funds used by EP for the husband’s investment portfolio, namely AV LP and AC LP. These funds had not been disclosed on the husband’s Form E. It is noted that the husband received a distribution in the sum of US$44k in September 2016 from AV. Liquid cash[37]The wife deposed in her Form E to holding a number of bank accounts, which at that time (July 2016) contained an aggregate balance of £630k. Mr. Bishop advises that this balance has been significantly reduced (to the tune of £130k) by legal fees over the last 16 months.[38]The husband deposed to c.£580k in multiple accounts; I am sure that that figure is bound to have changed. The more recent disclosure suggests that the figure is closer to £400k. Indeed, the wife has recently discovered (by her advisers) that the once replete joint Singaporean bank accounts now have negligible balances. Property[39]Singapore properties; The parties own nine properties in Singapore in joint names; some were purchased between 2007 and 2011, and others were purchased off-plan in 2012. They are mortgage free, and are believed to have a current aggregate value of c.£9.5m. The husband asserts in reply to questionnaire (with justification it seems to me) that the funds for the purchase of these properties derived from his pre-relationship assets. As at July 2016, the sum of £687k (according the husband’s counsel: First Appointment note, a figure broadly accepted by Mr. Bishop) was still owing to the developer of the second tranche, to be paid on completion.[40]Both parties independently acknowledge (per their Forms E) that they each own a one-half beneficial interest in the properties. These properties (or some at least) are now believed to be tenanted, although the wife claims that the husband entered into the tenancy agreements without her knowledge or involvement, and he has not accounted to the wife for the rent or any part of it. The annual rental income for three of the properties alone, albeit that the figure is somewhat out of date, amounts to S$133,410 (c.£60k net).[41]Singapore Housing Association flat: The wife owns a former housing association flat in Singapore; this is mortgaged and has a relatively modest net value (£174.5k).[42]Monaco flat: It is believed that the husband owned a property in Monaco, but that this was disposed of by him in August 2015 for €3m.[43]The Mews House: The wife has a home of her own in London. It has a value of c.£2.1m. It is mortgaged; indeed, the borrowing against the property has increased significantly in the last two years, in order to fund the wife’s living costs and legal fees. The net equity is a shade over £1.2m. The property is tenanted; the wife currently receives rental income of c.£22k per annum.[44]Commercial property (NE): The wife owns a modest commercial property in the North-East of England. It has a net value of c.£58.2k, with no mortgage[45]Residential property (NE): The wife had an interest in residential property in the North-East; in 2013 she entered into an agreement for the conveyance of the property into the name of R (the wife’s son from her previous marriage); this was achieved in 2016, and the wife has received £250k by way of consideration. Miscellaneous[46]In her Form E the wife set out her ownership of various items of jewellery. The wife has a 10-carat diamond ring, which has an apparently agreed insurance value of £500k; she has other items of jewellery to which she ascribes an insurance value of c.£640k. In late-2015 the husband issued an application for the instruction of a single joint expert to value the jewellery; this was never pursued. In his application form he queries the wife’s aggregate valuation of £640k but does not specifically assert that this is an erroneous or misleading figure. The husband has not disclosed any miscellaneous assets of his own; the wife claims that the husband has a valuable watch collection.[47]The husband states that he provided a personal loan of €500k to a business colleague in June 2014; it is said that as at January 2017, £365k is outstanding. Liabilities[48]The husband asserts an outstanding debt to his son of €7.9m, which, he says, represents his son’s bequest from the husband’s mother (the son’s grandmother), which has been “co-mingled” (sic.) with the husband’s own assets pending N attaining the age of 27. At that age it was assumed he would directly benefit. There is no evidence of this informal arrangement, and Ms Gaudern is exercised as to the legitimacy or validity of the same, particularly given that N is now over the age of 27 and no obvious attempt has been made to repay him. She argues that, quite apart from any other consideration: i) There is no evidence of the value of the gift to N under the will of the husband’s mother, or how it was handled; ii) Even if it were right that the sum bequeathed by the grandmother was indeed €5m, N has been given 2 out of the 10 shares in PS (which represented in part the mingled funds) in 2010/2013 which has an approximately equivalent value; Additionally: iii) The wife’s lawyers discovered that in 2010, Canadian $3m was paid to N (not previously mentioned or disclosed in the proceedings). It is asserted on behalf of the wife that, given the extensive documentation generated in the administration of the parties’ finances, it is notable that no document has been produced which evidences this apparent liability. Placing a value on the assets as a whole[49]I take as a convenient starting point an ‘investment questionnaire’ generated by Standard Chartered Bank in May 2009 which was, so it appears, signed by both the husband and wife; this document emerged in the financial disclosure process. It shows the parties estimating their “total net worth” at that time as US$88.6m. This figure is consistent with the figure contained in a separate e-mail from Standard Chartered to the husband dated June 2009 (i.e. US$88m). A separate e-mail dated 17 September 2009 also ascribes the husband’s portfolio worth as US$80+m. These documents disclose information which is all of a piece.[50]Mr. Bishop observes that most of the husband’s investment at the time of the 2009 questionnaire was in gold; given the movement of the price of gold over the last 8 years, he asserts, that investment is likely to be worth significantly more now than it was in 2009 (the peak in value being in summer 2011). If the husband was worth c.US$88m (£53m - £60m) in 2009, one could assume, he continues, that (subject to disposals and losses, of course) his net worth is greater now.[51]Having considered all the factors above, Mr. Bishop values the assets overall at c.£42.5m (or, as per his opening note, “not less than £45m net”). He computes this sum very broadly as follows: i) c.£26,346,000 invested through BVI companies, notably PS; ii) c.£1,506,609 represents the wife’s net property holding in the UK (the Mews House, the commercial property (NE)), together with the Singapore former-housing association property; iii) c.£8,455,149 represents the net value of property holding in Singapore (nine properties in the in the joint names of the parties); iv) c.£1.4m in bank accounts, and loans due to the parties; the wife’s case is that the sums in her accounts have been eroded in the last 24 months by her liability for legal fees; v) c.£5m capital undisclosed (i.e. I am asked to draw an adverse inference from the husband’s litigation behaviour, and non-engagement). vi) From this sum, there is deducted a liability of £296,422 for ongoing legal fees, and outstanding car finance.[52]I apprehend that in computing the global assets, the husband would have taken issue with at least some of the above calculation. Such challenge was foreshadowed at the First Appointment by counsel then instructed. For instance, he would I believe: i) not have included the £5m reflected by alleged undisclosed assets ([51](v)) above; ii) have deducted a further c.£7m from this figure to represent his indebtedness to his son for his inheritance; iii) have added £642k for the wife’s jewellery and other chattels. This would have given a global sum of a little over £31m.[53]Having considered Mr. Bishop’s submission, and reflected on the probable countervailing position, I have reached the following conclusion: i) As I have indicated above ([28]), I do not feel able to quantify the ‘undisclosed assets’ and attribute to them a specific figure. I therefore reject Mr. Bishop’s notional but specific figure of £5m. within the asset schedule; ii) I include in the schedule the wife’s declared chattels (her 10-carat ring and other items) valued at £642k (she refers to these in her own Form E); however, I accept that the resale value as opposed to the insurance of purchase cost is likely to be in the region of 1/3 of this figure; iii) I am not persuaded on the information available to me that the husband still owes N €7.9m (£7m) representing his inheritance (or a part thereof). N acquired the final share of his 20% holding in PS in 2013 when he was 27, the age at which it is said he would be entitled to inherit from his grandmother. The 20% shareholding is not just coincidentally worth a little over c.£6.5m; insofar as there may be a shortfall, I accept the wife’s account that the husband had already given to N the sum of Canadian$3m in 2010 c.£1.7m. I therefore value the global assets at £38,042,000. In view of the husband’s lack of transparency and his failure to co-operate with my orders for disclosure, I would round this up to c.£40m.

What is known about the husband

[54]Given his disengagement from the litigation, it is difficult, and in some respects it would be wholly unsafe, for me to reach any firm conclusions about the husband, his personal circumstances and/or his financial situation.[55]I note that the husband claims (Form E) that he suffers ill-health; he deposes to suffering from severe asthma, and from lung emphysema. He says that he has prostate problems, and has had a hernia. He maintains that he receives regular medication (unspecified). He anticipates that he will incur costs of special medical care for himself, though does not quantify this. He indicates (Form E) his intention to continue living in hotels and serviced apartments for the future.[56]The husband ceased to make financial provision for the wife in December 2015; I am satisfied that he has not accounted to her for the rental income from the Singapore properties.[57]The husband produced an annual budget for himself with his Form E; significantly, he estimated his future annual budget requirements at SGD$950k. On today’s figures (16 months on) that is likely to be represented by a figure of c.£550k. Mr. Bishop observes that this is an underestimate of his likely expenditure; for instance, he ascribes merely SGD$21,500 (c.£16k) for travel each year – if his pattern of international movement throughout his life, travelling first class, is to be continued to some degree, this figure is likely to be a significantly greater. By contrast, the wife assesses her future travel costs at £32k which seems altogether more realistic. Notably there is no provision made in this sum for the cost of future nursing or specialist care.

The wife: her reasonable needs

[58]I consider it appropriate to consider the wife’s needs in two parts: her general reasonable needs (see [59]-[64] below), and her specific needs arising from her medical condition ([65]-[71] below).[59]In assessing the general needs of this wife, the factors in section 25(2) which have particular resonance are: the wife’s age (64), the accustomed standard of living which she had enjoyed during the marriage, the extensive financial resources of the husband, and the wife’s own relatively modest personal financial resources. These factors are likely positively to influence her ‘needs’ claim. As against those factors, I have had regard to the length of the marriage and the source of the assets (see generally Lord Nicholls in White v White: [29] above). In an appropriate case, courts are encouraged to assess or interpret needs reasonably “generously” (Baroness Hale in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, [2006] 2 WLR 1283 [2006] 1 FLR 1186, at [144]).[60]It seems to me unarguable that the wife has a reasonable need for a home in England. She currently rents a practical-sized property in a desirable part of a city in the North East. She has the option to purchase this property; the option is open to her until April 2019, though at a favourable price if before April 2018 (the purchase price would be £1.2m). The home is geographically close to her son. It requires some adaptation to reflect the wife’s physical disabilities, which (in accordance with the detailed specifications which have been submitted in evidence) would be likely to cost in the region of £250k.[61]Mr. Bishop contends that the wife has a reasonable need for a property in Singapore. This is, or would be, evidently more contentious. Mr. Bishop argues that this is an entirely legitimate aspiration having regard to a combination of the following factors:(a) Singapore is the wife’s home country;(b) during the marriage, the parties spent extensive time there;(c) the wife ought to be able to spend time near her family (she has a large family in Singapore);(d) she benefits from the climate there. This will be, as he put it, a second home in the true sense, where she contemplates spending 12-18 weeks per year; this is not a holiday house, such as a ski chalet or Mediterranean villa. The wife travelled to Singapore in September with her care consultant, Ms Chance; this visit enhanced “a positive mental attitude and good energy levels” in the wife, who was also able to access various therapies while there. I broadly accept the wife’s case in this respect.[62]Mr. Bishop finally submits that in a case such as this, there are sufficient resources to justify housing provision of just over £3m in aggregate.[63]The wife’s budget as claimed has been assessed by her legal team at £581k per annum. I have studied the claim with care. Given what I know of the parties’ lifestyle, I have resisted the temptation to view it through too parsimonious a lens. The properties in England and Singapore will need to be maintained. It is reasonable in my judgment for the wife to travel to Monaco for up to three weeks each year, to New York (where S has been living), and of course to Singapore. It is reasonable for the wife to have the use of a part-time Personal Assistant and of a Financial Deputy. I felt it was right only to trim the somewhat overly extravagant annual budget for food/dining/household, shopping/restaurants, socialising, clothing and handbags, entertainment and hobbies, and I did so by reducing it to £65k.[64]The general needs would therefore be met by an annual figure of £298,648. Were it not for the wife’s special care needs this would be the extent of her income claim; had this claim been capitalised, the wife would have required a sum in the region of £5.4m. The wife: her medical condition and specific needs;[65]The Matrimonial Causes Act 1973 (‘MCA 1973’) requires the court to have specific regard to the physical and/or mental disabilities of the parties (section 25(2)(e) MCA 1973). This is, of course, of particular significance in this case.[66]I have reviewed the compendium of medical reports obtained in relation to the wife (see the list at [13] above). It is of advantage that most of these reports have been the product of joint instructions, commissioned at a time when the husband was represented, and with the benefit of advice.[67]The wife suffers from a complex combination of neurological conditions, with both physical, emotional, and cognitive disabilities. Dr. Ruth Kent describes the wife having sustained a “severe” injury related to a relatively localised area of the posterior aspect of the brain, leaving her with very specific health needs. She suffers a range of disabilities, including dysarthria and dysphasia and an ataxic gait; she has a right leg chorea, and a partial left Horner’s syndrome (all provided by Professor Chinnery, Consultant Neurologist). She is in constant neuropathic pain, experiences headaches, suffers double vision and problems with co-ordination, choking and difficulties in swallowing, and displays communication difficulties with a decrease in vocabulary. She has a severely impaired memory, has suffered depression, and has suffered from mood disorder, paranoia and aggression. Dr. Donald Brechin is of the view that she is at increased risk of depression in the future. She has difficulty holding information in her mind, and displays evidence of confabulation.[68]Dr. Brechin reveals that the wife has lost her ability to manage her personal, domestic and financial affairs, and became vulnerable to exploitation:
“… performance on psychological tests indicates a substantial decline from [the] estimated premorbid level…. [HC] displays neuropsychological and behavioural evidence of problems with executive functions, consistent with her suffering from a dysexecutive syndrome. An important of this syndrome in [HC]’s case is that she demonstrates limited insight into the extent of her difficulties… [HC] cannot independently manage her personal and financial affairs (including organising her care package) … it is more likely than not that the majority of spontaneous cognitive recovery has occurred, and that further recovery of cognitive abilities is limited in scope. The nature of her dysexecutive syndrome is that it affects insight, problem-solving and judgment, and my assessment indicates that [HC] confuses information, she is impulsive and she is vulnerable to suggestion. As such, she could inadvertently put herself in situations that compromise has safety, and she is at risk of exploitation by others. As such, it is my view that [HC] requires care and support to maintain safety.”
[69]Dr. Brechin is of the view that the wife’s difficulties are highly likely to persist for the rest of her life, and she will require “life-long care and support”. Deterioration in her condition is likely, in the view of Dr. Kent, to be neurological. Dr. Kent further opined:
“The main area that she is missing is her inability to visit members of her extended family, and to have an increased variety of contacts. Essentially, she had been used to travelling on a regular basis beforehand. She does find a cold climate can be quite difficult…”
[70]Ms Patti Summerfield is of the view that the wife requires “skilled and experienced professional support and therapies to maximise her functioning and optimise her quality of life… [HC]’s level of functioning is such that it is likely that, with the addition of illness, she would struggle to cope alone for any part of the day or night and would require additional support”. Ms Summerfield has costed the provision of future care with some precision. Dr. Kent endorses this, specifically recommending the provision of a Case Manager to manage the wife’s care and the physical equipment needs, and confirms the views expressed elsewhere that “it is important that she has a personal carer with her on a regular basis … it may be necessary to employ a small team”.[71]The medical opinions in combination paint a vivid, and rather bleak, picture of the wife, and her prognosis. I deal next with how these medical needs translate into future care costs.

The wife: future care requirements

[72]The evidence in relation to future care requirements is to be found through two sources – through the evidence of Ms Patti Summerfield, commissioned on behalf of the wife, and from Kathy Kirby, the Single Joint Expert. It is unnecessary for me to rehearse in this judgment the routes by which each expert arrives at their final conclusions. It is fair to note that the wife’s legal team were at one point sufficiently unimpressed with Ms. Kirby’s analysis that they sought leave to adduce additional expert opinion. However, the experts have met, and in all but the most limited respect, agree the parameters and costs of the wife’s current and future care needs.[73]Ms Kirby opines: “Clearly [HC] cannot live by herself, and although she currently lives alone at night she is very vulnerable and ideally requires someone to live with her on a permanent basis. A live-in carer will be able to provide the level of assistance [HC] will require … it is unlikely that there will be any improvement in [HC]’s overall functioning, and the level of support will be required indefinitely.[74]Miss Summerfield and Miss Kirby agree (discussion 16.10.17) that past care of the wife was reasonable and reimbursable, but this is not quantified. The following points in relation to the wife’s future care are made: i) The wife requires a support worker for 14 hours per day; ii) When the wife is away from her home in England, there should be an increased care allowance; iii) There should be a contingency for night care for 6 weeks per year, to cover periods of illness; iv) When the wife attains the age of 70, she will need permanent night care.[75]The experts do not express an opinion about the need for the wife to have a part-time PA; it is, they suggest a matter for “legal argument”. It seems to me that the wife will have many things to organise in her daily life, which will be beyond her capability. The wife fulfilled the role of PA for herself and her husband during the marriage; the provision of a PA for 15 hours per week is in my judgment entirely justifiable on the facts of the case.[76]The experts (Kirby/Summerfield) have largely agreed the cost of the wife’s future requirements for extensive care as follows: Item Cost p.a. (£) 1 Case Management Yr 1 (set up year) 19,824 2 Case Management Yr 2 and ongoing 15,571 3 Personal assistant: 15 hrs per week 17,160 4 Support care cost Yr 1 174,996 5 Support care cost Yr 2 172,959 6 Support care cost Yr 3 173,668 7 Community Care Alarm 445 8 Vestibular physiotherapy 1,140 9 Light therapy 1,000 10 Occupational therapy Yr 1 4,940 11 Occupational therapy Yr 2 1,140 12 Pain consultant 2,290 13 Personal trainer 4,680 14 Art therapy 1,350 15 Dietician 180 16 Neuropsychologist 9,280 * Acupuncture 1560 * Optometrist 2,600 * Speech and Language therapy Yr 1 1,890 * Speech and Language therapy Yr 2 945 * Neurophysiotherapy 7,410 TOTAL (Yr 1) 250,745 TOTAL (Yr 2) 238,150 Those items marked with a (*) above are not agreed, but are the figures proposed by Miss Somerfield, which I accept. Those items in italics are the figures for future years[77]Additionally, Miss Summerfield and Miss Kirby have considered and agreed projected costs of holidays, and the provision of support staff for such events.

The basis of computation for future provision: Ogden or Duxbury

[78]I was invited to consider whether the future income requirement should be computed by reference to the ‘Ogden Tables’ (the actuarial tables used for assessing the sum to be awarded as general damages for future pecuniary loss: now in their 7th edition: 2011; see section 10 Civil Evidence Act 1995), or by a Duxbury calculation. This was of particular relevance in this case given the quasi-personal injury character of the wife’s claim given her presenting condition. The contrast between the two bases of computation has been exposed this year by the changes to the discount rate applicable when assessing compensation for future loss in personal injury cases (a reduction from 2.5% to minus 0.75%). The upshot is that under the new rate (w.e.f. March 2017), compensation awards in personal injury claims will have to be much higher than under the old discount rate.[79]Ms Gaudern has argued strongly that the Ogden Tables should be used as the basis for computation of future pecuniary need. These tables are formulated on a different set of underlying assumptions. In short, the Ogden Tables contemplate virtually no growth, on an investment of virtually no risk, whereas Duxbury contemplates an element of risk. She maintains “I take the view that if a lump sum is calculated with reference to the Duxbury principles there is a very real risk of a significant shortfall resulting in a failure to meet [the wife]’s ongoing care needs.” The case has nonetheless been presented on behalf of the wife is in fact content to proceed on the basis of Duxbury, notwithstanding that she will have to invest cautiously in order to ensure that she is provided for.[80]The Duxbury computation factors in the range of imponderables which more commonly arise in a family law context than in a personal injuries context; many of these imponderables are not likely to be relevant to the wife here, including for instance the prospect of remarriage. Duxbury calculations are fair, but they also: “…suffer from the uncertainties of prediction. Nothing will in fact turn out exactly as it is predicted to turn out, whether in family law or in personal injuries law. A far safer way of catering for future financial losses is by way of a structured settlement involving capital payments for some needs and periodical payments for future needs, which can be adjusted year on year for inflation in accordance with the most suitable index available” (Baroness Hale in Simon v Helmot [2012] UKPC 5, [2012] Med LR 394).[81]I have not heard detailed argument, and notwithstanding Ms Gaudern’s view I was not invited to adopt it; it would therefore be inapposite for me to develop the competing considerations further. By adopting the Duxbury approach, the overall value of the capitalised claim will be lower than it would be if I applied Ogden. Therefore, notwithstanding the articulately expressed claim for an Ogden basis of computation, and the cautionary note sounded by Baroness Hale above, I am satisfied that it would be appropriate to accept the argument advanced by Mr. Bishop and adopt the Duxbury method of computation.

The section 25 review: a just award

[82]In exercising my wide discretionary powers under the MCA 1973, I have had regard to all the circumstances of this somewhat unusual case. I have dutifully kept in mind the principles of fairness (i.e. the outcome should be “as fair as is possible in all the circumstances”: Lord Nicholls in White v White – [29] above) notwithstanding the absence of the husband to rein in or challenge the wife’s aspirations.[83]Both parties sought at an early stage of the proceedings to rely on the conduct of the other (section 25(g) MCA 1973); the wife did not pursue this issue at trial, and the husband plainly did not advance this case either, and I therefore exclude it from consideration.[84]This is undoubtedly a ‘needs’ case. Mr. Bishop has rightly characterised it, and presented the case, as such. In evaluating the right level of ‘needs’, I have borne in mind the opulent standard of living of the parties during the marriage, and the financial resources of the parties. I have considered, although have given it modest weight only given the demise of the marriage, that the parties agreed during the marriage that the wife was to receive the Singapore property portfolio in consideration for her shareholding in PS (see [33] above). While these factors pull in one direction, I readily acknowledge that this was a marriage of shorter than median length (8 years only, in a relationship of 10-12 years).[85]Both parties are in their 60s. The exceptional need in this case arises from the wife’s medical condition. It is evident from all that I have said above that I accept that the wife has significant specialist future care needs having regard to her neurological and physical impairments, as fully discussed above; I have accepted the figures (and the premise on which they are advanced) as agreed by the experts at [76]. I have borne in mind that the husband may well have specialist care needs of his own now and in the future, but his non-participation in this process has left me without any explanation, description, or calculation of the same.[86]The wife’s needs have been helpfully set out, and very largely agreed, by the wife’s expert (Summerfield) and the single joint expert (Kirby). The care needs involve a full-time carer, wherever in the world she may be; she will have a need, I am satisfied, for a part-time Personal Assistant. The wife’s annual budget going forward reflects of course the needs of a wife who has enjoyed and benefited from a luxury standard of living for more than a decade in the middle to latter years of her life, but materially reflects (and indeed is doubled by) the bespoke care costs required to provide for her special medical needs.[87]In evaluating the reasonableness of the budget for the wife, I am guided to some extent by the fact that the husband himself suggested (a year ago) an annual budget for himself of £546,229p.a. (without any adjustment for specialist care) although as I have indicated above ([57]), this may well be an under-estimate.[88]It seems to me to be reasonable for the wife to exercise the option to purchase her current home in the North-East of England; it is familiar to her; it is not excessively large, and has a reasonable value (£1.2m). The wife has a community of friends and associates in the area, through the church and otherwise. Importantly she is happy living there; with adaptations (which have been costed out for me), it will meet her needs entirely. It is reasonable that the property is mortgage free.[89]In my judgment, as earlier signalled, the wife has a further reasonable claim for a property in Singapore; I accept the arguments laid out by Mr. Bishop in this regard (see [61] above). To recap: Singapore is the wife’s home country, it is where the parties made their principal base during the marriage, and it is where the wife’s extended family live. It is proposed that the wife would be spending about 18 weeks of each year there, more time than would be spent at a ‘holiday home’. I am satisfied that the recent trip to Singapore had a materially beneficial effect on the wife’s well-being.[90]I have already indicated my view that it is reasonable for the wife to travel to Monaco for up to three weeks each year, where she has fond connections, having spent most of her first marriage living there, and extended periods during this most recent marriage.[91]From the First Appointment, it has been broadly uncontroversial that this would be a needs case; however, the husband has not made any open offer of settlement, and he even declined to provide a relevant steer in his Form E as to the likely form/shape of award for the wife.[92]Drawing the threads together, in my judgment, the wife’s reasonable needs will be met by an order which reflects the following: 1 Purchase of her current property ([88] above) 1,200,000 2 Property in Singapore ([89] above) 1.865,489 3 Future income (Duxbury) 10,458,626 4 Account for rental income from the Singaporean properties 50,000 5 Outstanding legal fees 270,000 6 Balance to pay developer to complete purchase of second tranche of the Singapore properties 685,253 7 Capital Gains Tax liability 365,480 8 Adaptations to her current home ((1) above) 250,000 9 Stamp Duty Land Tax 106,250 TOTAL 15,251,098[93]I consider that these needs should be met from the assets as follows: 1 Wife retains the Mews House (which I anticipate she will sell) 1,273,899 2 Wife retains the commercial property (NE) 58,200 3 Wife retains the Singapore Housing Association flat 174,510 4 Wife to have transferred to her a three-bed flat in Singapore for her use as her home there 1,865,489 5 Wife to retain her jewellery and chattels (1/3rd insurance value) 214,000 6 Wife to retain liquid cash in her bank accounts 500,000 7 Singapore properties (gross) 7,640,393 TOTAL £11,726,491 Balancing cash payment £3,524,607[94]As indicated in the summary above, I propose to permit the wife to retain her Mews House, and the commercial property in the North-East together with the housing association property in Singapore. She will have the freedom then to sell these properties should she wish/need to do so. To finance the Duxbury claim, I further direct that the wife shall have transferred into her sole name the nine Singapore properties; the wife sensibly proposes to keep one of the Singapore flats for herself, which is large enough to accommodate a carer on her regular visits.[95]The eight Singapore properties should realise (gross) the sum of c.£7,640,393. The contents of the parties’ UBS joint account will be available to the wife (£50,000 would otherwise have been due to the husband). The husband will therefore have to pay to the wife a cash lump sum of £3,474,607. On payment of the lump sum and transfer of the properties, there will be a clean break as between the parties in life and on death.[96]On the sealing of this order, the 10-day hearing scheduled for May 2018 shall be vacated.[97]I shall make such ancillary orders as are necessary to give effect to this order. I shall make no order as to costs.

Following judgment:

[98]Following the delivery of the judgment, I was invited by Mr. Bishop and Ms Faggionato to make a freezing injunction, in respect of a relevant proportion of the husband’s assets. It is submitted that such order is necessary to give effect to the order for financial provision which is set out in my decision above.[99]In exercising the jurisdiction under section 37 MCA 1973, I have had regard to the guidance set out in the judgment of Mostyn J in L v K (Freezing Orders: Principle and Safeguards) [2014] 2 WLR 914, and in particular to his comments at [51]:
“the applicant must show, by reference to clear evidence, an unjustified dealing with assets (which would include threats) by the respondent giving rise to the conclusion that there is a solid risk of dissipation of assets to the applicant's prejudice. Such an unjustified dealing will normally give rise to the inference that it is done with the intention to defeat the applicant's claim (and such an intention is presumed in the case of an application under the 1973 Act).”
[100]I am satisfied that it is indeed both necessary and proportionate to make such an order at this stage, and that it is appropriate to make the order effectively ex parte. Given the husband’s lack of co-operation in the process over the last 10 months, the wife is entitled to be protected from the husband’s efforts, and prospective efforts as I find, to defeat her claim for financial relief. I am further satisfied that the giving of notice would be likely to lead the husband to take steps to defeat the purpose of the injunction. In so concluding, I have taken into account the following (non-exhaustive) list of factors: i) The husband’s non-engagement with this legal process once the FDR concluded without settlement; ii) The husband’s ‘drastic’ step (see [28](iv)) in August 2017, shortly before his lawyers came off the record, of liquidating PS, thus placing significant assets into the ‘dark’ (my phraseology not theirs); iii) The husband’s lack of transparency generally; iv) My finding that the husband had sought to reduce the assets available for distribution by arguing a specious liability to account to N for his inheritance when this had been satisfied some years ago.[101]In the circumstances I am satisfied that, subject to the usual safeguards, it would be right to make the order which will prevent the husband from disposing of, dealing with or diminishing the value of his assets whether they are in or outside England and Wales such as to reduce their value below the sum which he is obliged to find to satisfy the wife’s award. I shall discuss further the precise terms of the order with counsel.[102]That is my judgment.

Cited in 1 later judgment