AB v B & Anor [2025] EWHC 1891 (Fam)

[2025] EWHC 1891 (Fam)Case No FD21F00033
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/07/2025
Before
MR JUSTICE FRANCIS
Between
ABClaimant
William East (instructed by DAC Beachcroft LLP) for ClaimantJames Weale (instructed by Payne Hicks Beach LLP) for First Defendant/Applicant Constance McDonnell KC (instructed by Stewarts Law LLP) for the Second Defendant/Applicant Adam Cloherty KC and Erin Hitchens (instructed by Charles Russell Speechlys LLP) for the RespondentHearing Hearing dates: 03 - 04 October 2023
Approved JudgmentThis judgment was handed down remotely at 10.30am on 04 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This is a public version of the Judgment which has been redacted to protect confidentiality.
[1]BB died on [redacted]. He was married to the claimant, AB, on [redacted]. The couple had three children together. The couple remained married at the date of BB’s death.[2]These proceedings arise out of a claim made by AB as long ago as May 2021, pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“The Inheritance Act”), for provision to be made out of the deceased’s estate for herself and for the three children. The deceased left a will dated [redacted]. The will provided for the estate to be held on discretionary trusts for AB, the children, and for the deceased’s remoter issue. No capital provision was made for AB under the terms of the will. The executors executed a deed of appointment giving AB the right to the income of the estate. Put simply, AB’s case is that, applying “the divorce analogy”, she and the children are entitled to outright capital provision from the estate, in addition to the income of the estate.[3]The First Defendant, B (hereafter referred to as “B Trustees”) is the administrator and trustee of the deceased’s estate.[4]The Second Defendant, C, is a partner in a firm of solicitors. By the order of Poole J dated 5 October 2022, C was appointed to represent the deceased’s children and remoter issue in relation to the claim. C applied on 21 March 2023 for a third party disclosure order against Z Limited pursuant to CPR r31.17. B Trustees made a similar application on 2 May 2023. This is my public Judgment in respect of those applications which has been redacted on confidentiality grounds in this form which was agreed by the parties and approved by me.[5]On [redacted], the executors obtained a grant of the deceased’s will. The grant of probate indicated that the net value of the estate was an eight figure sum at the date of death. Of this, a substantial proportion (approximately 75%) was represented by the value of the deceased’s shares in Z Limited, according to a valuation commissioned by the executors. That valuation report valued the shares as at 30 April 2020, now well over four years ago, and at the very outset of the pandemic. It is contended on behalf of both AB and B Trustees that this valuation may be an unreliable guide to the current value of the shares. Given the changes that have afflicted the world since April 2020, I see the force of that submission, but even without the pandemic, the Ukraine War, conflict in the Middle East and other cataclysmic world events, it is obvious that the valuation has the potential to be misleading, or simply wrong (and of course in either direction).[6]Accordingly, the instant application is to determine outstanding issues in relation to applications made by B Trustees and C against Z Limited for third party disclosure orders. B Trustees, as administrator and trustee of the estate, holds 50% of the shares in Z Limited. The other 50% of the shares are held by the deceased’s relative, YB, who is also a director of Z Limited, together with his wife, XB, who was appointed after the deceased died. It is a sad, but in my judgement remarkable, feature of this case that since the deceased died, his estate did not receive any income from Z Limited, despite the company holding cash balances of what I am told amounts to almost £ [redacted] million (according to the 2022 accounts). Furthermore, the estate seems to have no representation on the board of Z Limited.[7]It is forcefully argued by B Trustees that it is likely that there will be a disposal of the entirety of the estate’s shares in Z Limited and that, in the event that those are purchased by YB, he will have an interest in minimising the value of the estate’s shareholding. Of course, I form no opinion in relation to that, and I have heard no evidence on this issue. However, I understand the submission that there is the potential here for a conflict of interest. I can also see the possibility of a debate as to whether the deceased’s shares should be subject to a minority shareholder discount or whether they should be valued on a quasi-partnership basis. These will be issues for another court on another day.[8]Given the size of the estate, and the needs of AB and her children, it is in my judgement regrettable that the executors did not, prior to the issue of the claim, make sufficient distributions to provide properly for AB and the children’s needs. On 23 November 2021, Peel J approved a consent order removing the executors as executors and trustees pursuant to section 50 of the Administration of Justice Act 1985 and section 41 of the Trustee Act 1925 and replacing them with B Trustees.[9]On 5 October 2022, Poole J made an order adding C as second defendant and appointing him, pursuant to CPR rule 19.7, as representative of the Represented Class (defined as the children and remoter issue of the deceased). It has, of course, always been hoped that AB and C will be able to reach a sensible resolution of the claim. It is submitted, on AB’s behalf, that this has been “entirely stymied by the lack of a reliable valuation of the shares in [Z Limited], due to [Z Limited’s] refusal to provide the documents which are needed for this”. Hence this application. During the regrettable delay since I heard this case, I would have hoped that the parties might have been able to make progress. Instead, I have been bombarded with a considerable amount of contentious correspondence and post hearing submissions.[10]C filed and served a witness statement on 16 November 2022 saying that he was unable to respond properly to the main claim, principally because the April 2020 valuation was not a reliable guide to the value of the shares in Z Limited held by the estate. The position is put this way on AB’s behalf:a. the court, and therefore the parties in attempting to reach a resolution of the claim, are required to take into account the size and nature of the net estate pursuant to section 3(1)(e) of the 1975 Act. This factor is of obvious relevance to the question of what provision should be made to AB and what should be retained for the benefit of the children and other potential beneficiaries of the discretionary trust.b. In considering this and the other factors under section 3 of the 1975 Act, the court is required to have regard to the facts as known at the date of the final hearing (see section 3(5)).c. In light of this, it is necessary to have a valuation of the shares which is accurate and up-to-date, particularly given the significance of the size of the estate as a whole.

The applicable legal framework

[11]It is not in issue that, AB being the spouse of the deceased at the date of his death, she is entitled as a matter of right to apply to the court for an order under section 2 of the Inheritance Act on the grounds that the disposition effected by his will is not such as to make reasonable financial provision for her.[12]Section 1(2) of The Inheritance Act provides as follows: In this Act “reasonable financial provision” — (a) in the case of an application made by virtue of subsection (1)(a) above by the husband or wife of the deceased ……… means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.[13]Paragraph 2 of The Inheritance Act sets out the familiar menu of the wide range of orders which the court has the power to make.[14]Paragraph 3 of The Inheritance Act provides as follows: Matters to which court is to have regard in exercising powers under s. 2.(1) Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say— (a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future; (b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future; (c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future; (d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased; (e) the size and nature of the net estate of the deceased; (f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased; (g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.(2) [ This subsection applies, without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(a) or (b) of this Act.] The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to— (a) the age of the applicant and the duration of the marriage or civil partnership; (b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family. In the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a [judicial separation order]2 was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a [divorce order]3; but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made by an order under section 2 . [Emphasis added][15]For the purposes of the application, I must therefore have particular regard to the following:a. the size and nature of the net estate of the deceased;b. the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a divorce order.[16]The Inheritance Act followed just two years after the Matrimonial Causes Act 1973. The importation of the familiar “section 25 factors” into section 3 of The Inheritance Act gives rise to what is often referred to as “the divorce analogy” or “the divorce crosscheck”. Indeed, it is for this obvious reason that so many of these claims are heard in the Family Division. Since the seminal case of White v White [2000] UKHL 54, discrimination between spouses has, of course, been outlawed and there is a duty upon the court to carry out an appropriate assessment of the resources of the parties. This is usually referred to as “the computation stage”. In the “pre White days” when discrimination prevailed in the bigger money cases, the wife mostly being awarded her “reasonable needs” (as they were patronisingly called) and the husband retained the rest, it was sometimes thought that it was not always necessary to carry out a full-scale computation. For a time, a device was utilised by the wealthy spouse (more usually in those days the husband) which became referred to as “the millionaire’s defence”. The practice emerged for a time whereby an extremely wealthy husband did not need to give full disclosure of his resources to his wife upon divorce because he could meet her “reasonable needs, however generously interpreted”. Those days are gone. Numerous cases have sought to interpret, develop and adjust the application of the sharing principle which derived from White. An analysis of those cases in this Judgment is unnecessary but it is, it seems to me, helpful to look at what was said in this context by Sir Mark Potter P in his Judgment in the Court of Appeal in Charman v Charman [2007] EWCA Civ 1085:
“To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the property of the parties generated during the marriage otherwise than by external donation; and the consequence would have been that non-matrimonial property would have fallen for redistribution by reference only to one of the two other principles of need and compensation to which we refer in paragraph 68 below. Such an answer might better have reflected the origins of the principle in the parties' contributions to the welfare of the family; and it would have been more consonant with the references of Baroness Hale in Miller at [141] and [143] to “sharing … the fruits of the matrimonial partnership” and to “the approach of roughly equal sharing of partnership assets”
. We consider, however, the answer to be that, subject to the exceptions identified in Miller to which we turn in paragraphs 83 to 86 below, the principle applies to all the parties' property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality. It is clear that both in White at p.605 F-G and in Miller at [24] and [26] Lord Nicholls approached the matter in that way; and there was no express suggestion in Miller, even on the part of Baroness Hale, that in White the House had set too widely the general application of what was then a yardstick.”[17]There have, of course, been very many developments and interpretations of the law since White in 2000, Miller, McFarlane in 2006 and Charman in 2007. But the central principles are derived from these cases. The reasons why I refer to these landmark cases now is to remind myself, and to explain to the parties, that:a. The judge has a duty in this case to consider the factors listed in The Inheritance Act, often referred to as “divorce analogy”; andb. The application of the divorce analogy cannot properly be carried out without proper computation of the assets, in this case the principal asset being the deceased’s shares in Z Limited.

Non-party disclosure

[18]CPR 31.17(3) provides that a non-party disclosure order may be made only where:(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.[19]It is clear from CPR 31.17(1) that there must be some statutory basis for an application for disclosure against a non-party. On behalf of Z Limited, Mr Cloherty asserts that the only applicable statutory basis here could be s. 34(2) of the Senior Courts Act 1981, which (so far as material) provides:
“On the application, in accordance with rules of court, of a party to any proceedings to which this section applies, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim - (a) to disclose whether those documents are in his possession, custody or power; and (b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order— (i) to the applicant’s legal advisers; or (ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.”
[20]Thus section 34 provides that the Court can impose conditions on any order it makes, including by restricting production of any documents to the applicant’s lawyers or professional advisers. Such conditions would plainly be considered where confidentiality issues arise.[21]In Flood v Times Newspapers Ltd [2009] EWHC 411 (QB) at [9] it was said that “…it is necessary for the court to have regard to the special nature of this jurisdiction and to ensure, so far as possible that it is exercised with appropriate constraint and that the relative criteria are properly addressed”: and later: “It is clear that disclosure against third parties should be regarded as the exception rather than the rule”.[22]In Re Howglen Ltd [2001] 1 All ER 376 the court echoed this (at 382h) stating that “… notwithstanding the provision as to costs, the jurisdiction to make an order against a non-party must be exercised with some caution.”[23]I am grateful to Mr Cloherty for drawing my attention to these important decisions which clearly provide the framework within which this court should operate, unless good reason can be found to suggest to the contrary.[24]There are two threshold jurisdictional conditions in CPR 31.17(3): First, that disclosure would be likely to support the applicant’s case or adversely affect the case of one of the other parties. Second, that disclosure is necessary in order either to(a) dispose of the claim fairly or(b) save costs. If both of these hurdles are surmounted, the Court’s discretion falls to be exercised, taking into account all relevant circumstances and broader considerations.[25]Condition 1: disclosure would adversely affect a party’s case Mr Cloherty reminds me that the power in section 34 and CPR 31.17 is exercisable only in support of, and can only be justified by reference to, the case that is actually before the court. It cannot be exercised for any other purpose: however desirable the parties (or the court) might think that a particular disclosure might be in some other context, the court simply has no jurisdiction to make a non party disclosure order for any extraneous purpose.[26]Condition 2: necessity for fair disposal or saving costs In approaching necessity “the court will always need to be wary of categories [of documents] which are loosely or unnecessarily broadly defined” (Henry v News Group Newspapers Ltd (no 2) [2011] EWHC 1364 (QB) at [6]); and “the Court must bear in mind that the order sought, being against a non-party, is unusual and that a degree of caution is accordingly appropriate; and the more so according to the ‘weight’ of the public or private interest in maintaining confidentiality which disclosure would negate” (Omers Administration Corporation v Tesco plc [2019] EWHC 109 (Ch) at [79(3)]).[27]At an earlier hearing before Mostyn J, he referred the parties to the Court of Appeal’s endorsement of Sir James Munby P’s discussion in Re H – L (Expert evidence: test for permission) [2014] 1 WLR 1160 (at [3])24:
“[necessary] has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”
. Necessity will not be made out where the “applicant has already received disclosure of sufficient documents to enable it to advance its case… There must be a limit beyond which it is not reasonable to require third parties to assist litigants by giving disclosure”: Henry v News Group Newspapers Ltd (No 1) [2011] EWHC 296 (QB) at [14].[28]Mr Cloherty further asserts that the wording of the rule shows that jurisdiction only exists if disclosure is necessary fairly to dispose of the claim at this stage.[29]As to the second sub-condition – alleged necessity to save costs – Mr Cloherty submits that the court should also take account of the costs that a large non-party disclosure order exercise will itself generate, and the proportionality and necessity of such costs being incurred, not least with the usual non party disclosure order costs rules in mind. He reminds me of Morgan J’s observation in Fanmailuk.com at [58]:
“… I do not see how it can be said that disclosure is necessary to save costs. If anything, disclosure will increase the costs for [the applicant]. That will certainly be so if I made the usual order that [the applicant] pay [the respondent’s] cost of providing disclosure. Even if, unusually, I ordered [the respondent] to bear its own expense of the disclosure, [the applicant] would still incur costs of its own in considering the documents obtained upon disclosure.”

B Trustees’ case in respect of the non-party disclosure application

[30]B Trustees contend that, unless and until Z Limited provides the documents necessary to enable a proper valuation, the parties and, indeed, the administration of the estate, “will be in limbo”. They further assert that, without the documents sought by the application, there can be no fair hearing of the Inheritance Act claim. The central point made by B Trustees is that without the documents, and the subsequent valuation, the court would necessarily be proceeding in ignorance of the true value of the estate’s principal asset.[31]I have referred above to the submission that it could be seen to be in YB’s interests for the valuation of Z Limited to be taken as being as low as possible. There is no basis on which, in this Judgment, it would be appropriate for me to find that YB is deliberately suppressing the provision of documents in order to acquire the shares owned by the estate at an undervalue. However, putting the matter as neutrally as I can, it is obvious that there is the potential for conflict and that YB is not in a position where he can exercise obviously independent judgement about what documents should be produced.[32]On behalf of B Trustees, Mr Weale forcefully submits that, “much of [YB’s] evidence in opposition to [the application] consists of [YB’s] opinion as to what is (and what is not) relevant to the purposes of a valuation”. Mr Weale goes on to point out, as is manifestly the case, that YB is not an expert and that his opinion in relation to the valuation exercise “is both irrelevant and inadmissible”. Whilst I do not need to go so far as to dismiss YB’s opinion as being irrelevant, it does seem to me that it is not in any way determinative of the matter which I have to decide and I certainly cannot treat his opinion as of much weight. Evidentially, opinion evidence from anyone other than a court appointed expert, is of little value to the court.[33]What I do have is the evidence from the extremely experienced expert MN to the effect that he (i.e. MN) needs these documents in order to prepare his valuation. The documents sought by these applications derive from a list prepared by MN (at a time when he was working for another Valuer, “V”). I am told that B Trustees had hoped that there would be a collaborative exercise which would, if adopted, enable him to make a more targeted request for information and documents. I am not going to descend into the arena of the arguments that have ensued since then, but it seems to me that MN’s ambition was a sound and sensible one. In his two statements, MN has clearly explained in detail why each category of documents that has been requested is necessary. He explains that the nature of the valuation exercise will require him to consider in detail “cash flow generating potential” which in turn requires detailed information related to Z Limited’s assets.[34]With the benefit of his very considerable experience, MN has explained why each of the items in the original list of documents is necessary for the purpose of valuing the shares. In his second witness statement, MN has explained why the objections asserted by Z Limited are without merit. YB has asserted that this would be a “monumental task”. MN’s response is that “this information is critical to the running of a [redacted] business” and “is either readily available or can be quickly compiled with our client’s cooperation utilising simple information request templates”. MN has provided information request templates to assist with this task. Importantly, MN observes that it would obviate the need for disclosure of a significant number of underlying documents. In my judgement, this is important.[35]YB complains, as I have said above, that the task would be “monumental” if he has to provide all of the information sought. When MN provided YB with a request information template, which MN says would make this task very much easier, YB’s response was to complain that he cannot be expected to compile documents, he can only be expected to produce documents that already exist. It seems to me that YB can, here, be put to his election. He can cooperate with the template that MN has requested, taking what appears to me, at least on the evidence presently before the court, to be the easier route, or he can submit to the “monumental” disclosure exercise. If I accede to these applications, and if YB were to elect the “monumental” route then, it seems to me, he only has himself to blame if, in fact, he could short circuit the process in the way described.[36]The only admissible opinion evidence that I have in respect of the necessity of this application is that of MN. YB, of course, does not (and could not) put himself forward as such. In particular, MN explains that Z Limited’s annual reports and financial statements are inadequate because they are historic and do not constitute a fair representation of the cash flow potential of Z Limited. MN has provided a detailed explanation as to why, in his experience, the documents requested are necessary. No expert competing evidence or opinion has been put forward to counter this. However, in an attempt to answer YB’s objections, B Trustees have produced a focused list of further information which would, it is said, be sufficient for MN’s purposes. This is reflected in paragraph 3 of the draft order. The one thing that MN seeks, if he is to go down this much reduced route, is some mechanism whereby he can ensure that the accuracy of the information supplied can be tested. The suggestion is that Z Limited would be required to provide a sample of documents in order to verify the information provided. The irony is, it seems to me, that if Z Limited is unwilling to cooperate in providing this information, then the alternative could be full disclosure of all the documents originally sought. This would then leave MN the onerous task of extracting the necessary information. In my judgement it is noteworthy that YB is not volunteering co-operation, which would quite possibly result in saving of time and cost. As such, it would be in furtherance of the overriding objective.[37]On behalf of B Trustees, Mr Weale forcefully submits that, in circumstances where the proposed expert has provided a detailed explanation of why these documents are necessary, the court should have no hesitation in ordering their production, subject only to the application of appropriate confidentiality restrictions.

C’s case in respect of the non-party disclosure application

[38]Ms McDonnell KC, on behalf of C, forcefully asserts that “disclosure of the documents sought is necessary in order to dispose fairly of the claim and to save costs”, for the purposes of CPR 31.17(3)(b). She aligns herself with B Trustees’ case in all material particulars.

The response on behalf of Z Limited

[39]Z Limited has gone to very considerable, and very well researched, lengths to resist this application. Their case has been immaculately presented by Mr Cloherty KC, to whom the court is extremely grateful.[40]The principal asset of the estate, and the subject of the application before me, is one half of the shares in Z Limited. Z Limited, although formerly half owned by the deceased and now part of his estate is, of course, a separate legal entity and must be treated as such, and I do so. It is the holding company for a prominent sector company [redacted] and, as Mr Cloherty forcefully reminds me on behalf of Z Limited, is not a party to these proceedings. He submits that these applications seek disclosure of “highly sensitive and confidential information” relating to Z Limited, which is not a party to these proceedings, as well as other third parties with whom Z Limited undertakes business.[41]In his very thorough skeleton argument, Mr Cloherty criticises V (for whom MN formerly worked) for failing to recognise various developments in Z Limited’s business. It seems to me that, far from being a factor to support Z Limited’s objection to a new valuation, it makes a new valuation all the more necessary, and renders a 2020 valuation potentially unreliable, or even dangerous. It is not for me to speculate what effect these trends have had on the value of Z Limited. However, I believe that these factors set out by Mr Cloherty support the case for the requested valuation, rather than his own case in resisting one. I do not know whether the factors that he relates will suggest a higher or lower valuation, or even the same, but I accept that these are dynamic changes that suggest that an out of date valuation is potentially deeply unreliable. And if I am right about that, then I do not see how a court can carry out its duty to compute the assets without an up to date and independent valuation.[42]Mr Cloherty states on behalf of Z Limited that the initial purpose of the valuations was “ostensibly said to facilitate the production of a valuation of [BB’s] shares for the purpose of the claim, in particular to assist the parties thereto to attempt to negotiate a settlement”. However, Mr Cloherty goes on to complain that the “real” purpose of the application is “not to undertake the kind of valuation necessary for the Claim, but instead the purpose of ‘otherwise seeking to realise the value of’ [BB’s] shares”. This, contends Mr Cloherty, is “obviously an impermissible use of the (intrusive) third party disclosure jurisdiction.” I agree that, if that is its purpose, such use would be impermissible.

Discussion and my decision

[43]I do not find that Mr Cloherty’s complaint about impermissible use is made out. I agree that one purpose of the valuation may be to assist a disposal of the shares at full value. But I am clear that the principal purpose of the valuation is to do what the law requires, namely to compute the value of the estate for the purposes of the claim brought by AB. Indeed, it seems to me that the court would be unable to carry out the necessary computation without the valuation that B Trustees seek.[44]I have not been provided with any acceptable alternative to the valuation proposed by B Trustees, and I reject the submission that the previous (out of date and made for different purposes) valuation is sufficient for the court’s purposes. In a contested financial remedy case in this Division, where there is a need to establish the value of a company owned by one of the parties, the notion that the court would tell the non owning party to accept the valuation produced for the owning party would be most unlikely to gain traction if that valuation is challenged. That is why the court appoints a single joint expert to resolve such issues.[45]Moreover, as I have already stated above, Z Limited does not have expert evidence to counter the significant expert evidence put forward by MN. Put simply, MN asserts that he cannot carry out a valuation for the court without certain evidence and documents. It is to be remembered that MN’s principal duty, if appointed by the court as an expert, is not to B Trustees, nor to the wife and children, but to the court. As is known to all of the lawyers in this case, the expert’s declaration in such a report makes this absolutely clear. I find no evidence at all to support any assertion that MN is in some way misleading this court, or is saying that he needs things that he does not need. To be clear, MN’s integrity has not been challenged in this way, and I accept, in the absence of any evidence to the contrary, that he needs the documents and information that he says he needs in order to carry out the valuation.[46]I agree that it would, indeed, be an impermissible use of the third party disclosure jurisdiction if the real purpose is to maximise the value of the estate’s shares rather than to enable the Court to discharge its duty pursuant to The Inheritance Act as discussed above. It is, however, clear to me that the principal purpose of the proposed expert valuation is to arrive at a proper computation of the value of the estate’s shares in accordance with the court’s duty pursuant to The Inheritance Act, as discussed above.[47]It has been made clear that the claim made on behalf of AB will be resisted, at least in part, by the existence of a prenuptial agreement. It would be inappropriate in this Judgment for me to express any opinion in relation to the importance of that prenuptial agreement to the claim brought by AB. That is an analysis that will be conducted by another judge at a later hearing. I believe, however, that this is not a Crossley type of case [2007] EWCA Civ 1491). In Crossley it was said that: In a case where the husband and wife divorced but had each signed a prenuptial agreement, which indicated that 'neither party should apply to any court in any jurisdiction for any order for financial provision of any kind based on the marriage...', and where the wife had made an application for ancillary relief, the judge had a discretionary power to require a party to show cause why a contractual agreement should not rule the outcome of an ancillary relief claim, not just when the contract was made post-separation and in contemplation of an application, but also when the contract had been made prenuptially or postnuptially, but before the breakdown of the marriage. In that childless, short marriage case, the prenuptial agreement was found to be of such overwhelming importance that the case was subjected to a limited summary approach. That was a very unusual case and the facts of the instant case plainly do not allow such a summary outcome, for the instant case involved a 14 year marriage which produced 3 children and where a considerable amount of the wealth was probably (without making a finding about this) generated during the course of the marriage. The duty of the court, even where there is a properly executed prenuptial agreement (and I have not heard any argument as to whether this was such an agreement or not and express no view on that) is fully to compute the assets and then to carry out its discretionary exercise taking account of all the statutory factors. Of course, when exercising its discretion, the court will have regard to “all circumstances of the case” and it is clear that one of the important issues in this case might be the prenuptial agreement. In due course the court may find that the pre-nuptial agreement is of “magnetic” importance to this case. However, I am clear that any suggestion that the prenuptial agreement limits the ambit of the enquiry or the duty of the court to compute the assets would be incorrect and I reject it.[48]Mr Cloherty forcefully contends on behalf of Z Limited that Z Limited owes confidentiality duties to third parties. He goes on to assert that “protection of [Z Limited’s] confidential information is thus as much in the interests of the estate and its beneficiaries as it is in the Company’s interests”. I am very sympathetic to this argument, it arises frequently in the Family Division. Mr Cloherty asserts, and I accept without reservation, that YB “well understood the unique confidentiality and reputational sensitivities that were critical to [Z Limited’s] continued success”.[49]Ms McDonnell, on behalf of C, addresses this confidentiality point in short[50]I would add this: the Family Division frequently deals with matters of intense confidentiality. For example, the court is often invested with information that could, quite literally, affect the share price of a publicly quoted company. The court frequently has to deal with circumstances where there is an imminent IPO, where disclosure of information could wreck the IPO completely, alternatively artificially inflate or reduce the price of shares. The court is used to having sensitive information and to dealing with it. It seems to me that it would be plainly wrong to allow the confidentiality issue to interrupt the court’s statutory requirement to carry out a computational enquiry and I am not prepared to allow it to do so in this case. I have listened very carefully to the excellently crafted submissions on this issue and I shall take every protective measure that I reasonably can to ensure that confidentiality, especially of non parties, is respected and protected. Once the parties have had an opportunity of digesting this Judgment, it may very well be that I will need to hear further submissions in relation to confidentiality issues. It may very well be that anyone receiving information in this case should be required to sign a confidentiality agreement and that I should restrict the people that will receive information and specifically identify who those people should be. Plainly, we are not in a position to do that at the moment and it is something that will have to be considered once the parties have had the opportunity to put forward their own reasoned suggestions.[51]On occasions I have, as the Judge, been asked to sign confidentiality agreements. I know that some of my judicial colleagues think that inappropriate, and I respect that. From my own perspective, if it reassures people for me to sign something confirming that I have no intention of doing what I would never do anyway, it does not seem too onerous and, if it helps, then in my judgement that makes it worthwhile.[52]On the subject of confidentiality, and its obvious importance to YB, Mr Cloherty goes on to assert that “this is doubtless one of the reasons why [BB’s] and [AB’s] pre-nuptial agreement provided that [BB’s] shares would always remain his ‘separate property’ and be immune from any marital claim”. As any family lawyer advising in the field of pre-nuptial agreements will know, there is no such thing, at least as the law presently stands, as “immunity from any marital claim”. On the contrary, reliance by Judges on pre-nuptial agreements without a full consideration of the factors set out in s25 of the Matrimonial Causes Act 1973 has been specifically proscribed by the Court of Appeal. See, for example, Brack v Brack [2018] EWCA Civ 2862:
“Where there was a valid pre-nuptial agreement, which provided that the wife had contracted out of a division of the assets based on sharing, a court was likely to regard fairness as demanding that she receive a settlement limited to that which provided for her needs. That would not be the outcome in every case because the court remained obliged to consider all the factors under the Matrimonial Causes Act 1973 s.25(2) and all the circumstances, the first being the welfare of any children.”
Accordingly, and with the greatest of respect to the careful way that his case has been put, I must reject Mr Cloherty’s submission that BB’s shares “would always remain his separate property and be immune from any marital claim”. No such immunity exists. Having rejected that submission, I am in no doubt that the court must do in this Inheritance Act claim by a widow what it does in a financial remedy claim pursuant to a divorce and compute the assets.[53]It will be obvious to the lawyers and accountants who work on this case that confidentiality is paramount. Any breach of that would not only be a grotesque breach of professional duty, and quite possibly a contempt of court, but would also be likely to impact adversely on the share valuation, something that no one involved in this case would wish, least of all AB or her advisors.[54]The need to resolve this case confidentially and without court proceedings is paramount. A contested case would probably be heard in open court, although that is of course a decision for the trial Judge, something about which I say no more, for obvious reasons. The valuation that gives rise to the instant application is intended to serve the negotiation process. I accept and adopt the submission made by B Trustees that the parties “will be in limbo” without the documents necessary to enable a proper valuation.[55]Mr Cloherty further complains that “a [redacted] new start-up incorporated just a few months ago” will be the accountants chosen by B Trustees to carry out the requested valuation in place of V, who were originally instructed. I can deal with this point in short[56]I am satisfied that the threshold conditions warranting disclosure have been met. I find that the documents of which disclosure is sought are likely to inform and therefore support the case for the applicant. Indeed, I go further: I find that the court cannot properly carry out its duty to compute the assets without the documents sought.[57]I agree that the court can impose conditions pursuant to s34 of the Senior Courts Act 1981. I agree that the court can only order production of documents that actually exist. I find that MN has attempted to short circuit, and accordingly reduce the costs of, the disclosure process by inviting the response to questions that he has drafted and producing the schedules that he has. If Z Limited refuse to answer questions reasonably put then they will have to take the more expensive and the more elongated route. That may well sound in costs, if it results in increased costs for the Estate, but that is a decision for another court on another day.[58]Given all that has been said in this case about confidentiality and the risk to value if that is breached, my preliminary view was that this Judgment should, for the time being at least, remain private. I have been persuaded that it would be of assistance to prepare an anonymised and redacted public version of this Judgment and the parties having agreed its contents I am content to approve it. My original Judgment of course remains private and confidential to the parties and their legal advisors.

order

“All that is being proposed and sought in these applications is an entirely confidential valuation exercise by a valuer with particular expertise in the industry in which [Z Limited] operates”. I agree with that concise submission. order: I am told, and it is not disputed, that the valuation sought will be carried out by MN, formerly of V but now with the new “[redacted] start-up”. I understand that MN now works for RST, the entity which Mr Cloherty calls the “[redacted] start-up”. I can overcome this problem quickly and easily by requiring MN to give undertakings to permit access to the papers in this case only to certain named individuals and to be the person in charge of the valuation process. I am of course willing to hear submissions on this issue.