Hello. Welcome, everybody. Money softer. My married on my solicitor on day lecturer on to know very pleased to welcome you to today session through data law This is the family law and practice update for 2020 Session to now, As you know, this is session two off a three hour session whereby we're going through various aspects off updates on family matters principally due 2019 and more soulful early part off 2020. And I'm going to various elements with you covering amongst of the matter's violence sees cohabitation, marital breakdown, personal protection Also certain aspects on Children. Last time you remember spent two favorite time going through with you some aspects of marital breakdown on also carpet ation, particularly when we're looking at the Civil Partnership Act of 2019. Today I'm going to be spending more time with you going through somebody aspects on financial aspects, falling marital breakdown on looking at somebody developing case law insofar as this is concerned. So the three sessions, which are effectively three hours, are covering all the five elements that have mentioned here. So Children, persons computation, financial remedies, divorce injunctions on also developments in case lawn statue provision throughout this, like, say, today session, I'll be spending go through somebody. Financial aspects and financial remedies in particular, as always, have put the copyright act much money acknowledging Crown copyright and also the Dfe as corporate author, right? First case Want to discuss with you today? Is this case of a committee over against Accurate of All on Disease, a case handed down in October 2090 in the High Court Justice by Mr Justice Knowles on Really, it really brings into play the issues surrounding recovery off hidden assets. As many of you will know, this is really a feature off financial remedy proceedings. Sometimes we're by the May well be assets, which we're trying to establish as to their whereabouts and therefore the mainly could be various applications by where freezing orders, for example, orders against the parties joining instead parties, for example, on also applications enough example. Section 37 off EMC A 97 3 That's much one because at 90 73 for the various injunctions that could be sold to prohibit person someone disposing goal handling assets, it could also get the freezing gorgeous figs on putting, preventing people transferring or disposing of assets overseas, for example, and that's very much what this case was about. It was a very big one of these multi £1,000,000 company cases, so therefore, obviously there's a lot of money involved and therefore it's these types of cases which often will make their way into the the law books. So let's have a look in this case that in a bit more details. It's handed down in October last year on. It related therefore to financial relief proceedings whereby the court had ordered within most proceedings for the husband to pay the wife a some off approximately £453 million in some want over financial claims in respect in amounts again, you can see a a huge big money case. This one was on. It's sort of divorce had already been dealt with. The financial relief for seniors had already been determined and in fact, the court had made in order. Insofar as that is concerned, the husband have it did not voluntarily pay. Andi enforcement had taken place on uh, wife had only been able to recover for the enforcement scene is a very small proportion of that. In fact, only five million, which, in the grand scheme of things, really wasn't much at all, considering how much he was awarded. 453 million. So you can see she got very little back by way of enforcement under at English court. Granted various orders against offshore companies, another entities used by the husband, Onda. The application by the wife. The present application by the wife was a gauge to trustees who had been used, she claimed, by the husband to hide and protect her husband's US. That so she brought the scene, is against East trustees and therefore your dragon and are the parties to the proceedings. And shortly after conclusion of the financial relief proceedings, her husband, she said, had course somebody efforts assets to be transferred over overseas to less sustained stent in order to ensure that the wife would not be able to and force a judgment against them. So you can see this was a case where, by the wife was claiming that the husband had inappropriately transferred majority of the assets overseas to stop away from being able to access those on. It took the wife some time to be up to try and figure out what had happened to somebody's assets, and she was arguing that he had actually transferred a lot of the monies into various trusts. Andi into the names of the off the trustees also. So there's various applications that were brought by the wife on data recovered these assets from needs trust accounts and then to preserve them as she had relied first before without notice. Order to join the two trustees in their capacity as trustees, and she wants to join them as parties percent to 9.36 b now, as you know, dusty provision in the family procedures, which allows third parties to be joined accordingly. So she wanted them brought it on that basis on, of course, subsequent in to get orders for disclosure on discovery against them. Andi. Secondly, the wife brought in action whereby she was seeking freezing injunctions to be granted on density orders against these two trustees to them to prevent them from disposing of assets insofar as those that were handling on behalf of the husband were concerned. And thirdly, wife was asking for orders under Section 43 of the Insolvency Act 1996 Onda, or section 37 of the emcee A were by just looking set aside, all transfers off the assets to trusts of which these two people trustee so therefore satisfied transactions to these two to trustees on instead to order them to pay the value to someone's received by each of them. To her so effectively, the husband. The money is that the husband transferred to these trustees. To them, we brought back into a tent via either the insolvency act of section 37 of em. See a on the basis that she was arguing that this was done as a way of avoiding his responsibilities towards his wife, and therefore, the avoidance of disposition effectively not regard on this substantial application was to be determined on notice to the trustees. Now, the first application about joining was being sort without notice on. That's because by giving notice, it was likely to freely frustrate its purpose. It was been said that the wife claimed that the history demonstrates that the respondent will use any opportunity so her husband, former husband, would use any opportunity given to him to move assets in order to and short of the wife could not access those. So there was a fear that if the trustees on the husband were given notice, he made them once again transferred the assets elsewhere. So the grand talked of freezing order. Uh, onda joining was regarded as being dealt with or without notice basis to prevent those assets from being transferred and therefore to effectively preserved those assets. Now, the husband had a substantial wealth on a lot of this was, as a result of these sale of his interest in these audio North cast in 2012 where he had sold that for a staggering amount off 1.375 billion U. S. Dollars. You can see it a significant amount of money. They and once he had sold oh stand opposed to sail were used to acquire a variety of assets and these assets were significant. But the three main classes of assets were these. Firstly, there was a super yacht in honesty M y Luna on, and this was acquired for 260 million year old, so that was the first asset. Secondly, there's a portfolio of our work CAC wide, which was finally that some $145.2 million So there was a lot of artwork again we can see was worth the significant vast amount. And thirdly, the rest of the assets were taken in the form of cash and securities off about 650 million, which were. How does monetary assets you can see? The three main asset classes were there Onda and in so far as the vessel were concerned to see per yacht on. Also the artwork to see Piat, as you can see, was worth in the region. About 260 million euros on the artwork about $145 million. What wife I'll give that The husband had previously taken steps to put both of vessel and also the artwork beyond the reach off the wife yet set up effectively a dummy sale to a certain party, suggesting that he had actually sold this, but in fact that had it happened and money's had it. Therefore, Bean exchanged, wife claimed on uh The court said that this transfer was part of the husband's continue campaigning to feed the wife by concealing his assets in various offshore companies. So this was really just indicative off what the wife was organ that her husband was doing. The husband in the previous set up, seems, had been done for contempt of court that he had failed to transfer of, except a wife and Peyton or monetary equivalent to her. As for the artwork, they said, moved from London and New York to Switzerland on later, Husband caused the artwork to be transferred overseas to another country so you could see he was really moving assets, the wife said, from one country to another, and then trying to evade the wife from being able to track down what was happening to these monies on. Bad Wife had relied upon Section 43 of the Insolvency Act, which provides that the court has broad powers to ground remedies. Were person has entered into transactions at an undervalue with the future than putting these beyond the reach of a person who may have a claim. What does have a claim against him so he can see the Section 43 route is very similar, sir Section 37 M. C. A route, which is there also for the purposes of avoidance of disposition. So the actual relief that the wife was seeking was fiercely she wanted a trustee. Three joined his party's and, as I mentioned, describe it down under the family procedure, whose 9.26 B they wife said had had assets transferred into their name and in their capacities as trustees don't need to be brought into the proceeding sold at the court, then make necessary orders for disclosure and get to see what the extend off their financial involvement with the husband was particularly bearing in mind after he had tried to put the assets beyond the reach off. The wife, Andi, and the wife had also sort of freezing order on. The application of Joyner was being made without notice. Update effective. That was, if they were joined and the trust with trustees would have a limited amount of time, day after to apply to set aside a joint, it there would be given a minimum a period of some seven days to apply to set aside, He joined a while stirred in Watts. There were obviously served at that stage in that regard. In so far as the freezing in judged under financial relief is concerned, the wife, like mentioned early, was also seeking for this to be made on without notice. Basis on this was to avoid to reduce the risk that the monetary assets would then be moved again in offshore structures to frustrate any relief given body English court. So again, you can see the thinking behind this. If, of course, you did give noticed and there was a significant on real risk that money would be transferred elsewhere. Once again the court and looked at the law and freezing injunctions. And there was really consideration of deep leading authorities on this, such as the case of our against K freezing orders, principles and Safeguards. This 2015 case on, uh, one of things which was highlighted in that case was the fact that the onus is on the wife to establish, ah, strong case whereby which is one which is more than capable off off serious argument whereby she has to show more than 50% success chance of success or if they force us showing a balance of probabilities and she just his shoulders that there is solid evidence of a real risk off dissipation. She must show by reference Stickley of evidence off unjustified dealing with assets which could include threats for example, by a former husband giving rise to conclusion that there was a solid risk of dissipation of assets to her prejudice. Okay and felt Thirdly, then the other point that l on K race was that it must then be just inconvenient for a freezing injunction to be granted into circumstances. They can see those woody elements which the wife had to demonstrate on a balance of probabilities. And this case of LNK also said that a without notice application should only be made where there is powerful evidence that giving her any Nolte's would lead to respond to take steps to them. Defeat the purpose of the injunction will under fax here, given that the husband had previously dissipated assets on. But this is one where the husband would exercise a high degree of influence of control over the trust's on. Also, there had been a history of previous actual dissipation to court on the facts, was satisfied that they would make the freezing Gorda honor without notice basis in the circumstances and therefore this was done accordingly. No relation to ancillary disclosure are. The court did say that insofar as the asset disclosure is concerned, hand in hand with a freezing injunction. This was also necessary than to render effective and capable of being policed in that regard. So that was also done in the circumstances. What about naming the directors and the penal notice? And this is where of mentioned here that Her Ladyship did set out that when it comes to committal applications, if there is a need for that, if, for example, the directors are not going to be complying with court orders, then who at some 0.3 sub section three of the fpr which relates to committed applications or breach of orders and breaches of undertakings is that committal order may be made against the company or the corporation on. Therefore, it may have made a case, any director or the officer off the company or corporation, and therefore, with that in mind, it can be done. But of course, on order cannot be enforced unless it comes first and foremost, it complies with a peanut notice and that therefore would be required in the circumstances. And it's a far subpoena, Noticed is concerned. What the court therefore setting the circumstances is that I would say some 0.4 subsection three provides that you can not go for enforcement unless people notice attached. First and foremost on, many of you would have seen the Pena noughties, which sets out the fact that it would be a breach of the orders, contempt of court for which they could be fined or sent to prison. So all of those orders were being soared on on the facts. The court felt that they were necessary to be made on. Therefore, on that basis, the court subsequently did grantees. Now then what happened is there was then a short while there after the further application which have been set up for you. So this was the 2019 further decision also handed down by Mrs Justice Knowles in the High Court of Justice Family division. So this was handed on just a few weeks later. This was 17 to October 2019 and essentially that this was the return date on that this particular judgment and dealt with the issue about the service and mortification of the application or sort of return date. Given that there was that without notice joined, it was the without notice freezing order that had been made on also this was going to be dealing with the development since the without notice hearing and also a continuation or otherwise off without notice. Injunctive relief on what happened here is this. For the purposes of this return date, wife had taken steps to serve the husband it using the different methods off water service, which had been permitted by the freezing Gorda the husband didn't receive D. What's up message, which was one of the methods that the wife used, probably because he had blocked asunder telephone number and delivery at his office. Address documents were delivered to his personal email address without any bands back on. There were also delivered to his son's, Addressed in the jurisdiction on also former service duty judicial channels under trustees was not complete until sometime later. It was delayed because they need to translate lengthy documents and also the requirement for the documents to be very pipe by another translator on the notary in the second dances. But knob prejudice had been caused. Excuse me, no prejudice has been caused by the trustee because they want a receipt off the freezing order identified. A game in date on day had been received with that for some five weeks or so. So in that respect for service had been affected on both the father of the husband and also on the trustees. In that regard on development since the without notice hearing word that in relation to the freezing on the document Caesar orders Thea lectured state called rejected complaints on did in fact uphold the order. Start had been made, and Her ladyship did say that he supported interference. Did infants with which the wife raised, which was that the assets had been transferred on demand. The husband was trying Teoh avoid dear obligations towards his wife. In that regard on the application for the continuation, the freezing order was made on implication there was that order wouldn't continue to need to be separated so carefully. Freezing order also continued thereafter. See, so it's a good case because, as I mentioned earlier, what this case illustrates, I would suggest, is that sometimes, particularly with cases of this kind where there may well be big money cases, but the principles are still there, those principles being that if if one is hiding us, it's always like it, too than not that may well be a means on a necessity to actually freeze, does the other situation. I want to mention that they said this case off Vladimir Putin in on Battalion Petagna Paternina on. But this case is really linked with somebody. Other previous cases we've had relating to the issues surrounding applications for financial relief falling in overseas divorce. So this was a 2019 case handled by Mr Justice Cohen Onda, both husband, wife were Russian nationals husband was worth again, a staggering amount of money. A looking at 20 billion U. S. Dollars under that married in Russia and had three Children. Subsequently they divorced her and married. Her party's lived only in Russia on the parties were not always wealthy but from Miranda. In 19 nineties, Husband was able to take advantage of opportunities which exist in Russia to build up really the enterprise on the bill, the businesses and like so now he's worth close to 20 billion U. S. Dollars on dumb. Both parties had built up substantial cash balances in their their own names. Now, Wife's argument was there. She said that she should be. We have received unequal sharing of the assets, Whether these were held in her soul name or each other's names or otherwise on. She argued that although they divorced in Russia when he came to the finances, the approach adopted by the Russian court should have been similar to, if not the same as to what it would be like in England. So that's why when she then came to England, she was effectively bringing connection seeking relief here. And she did that by bringing an action under the 1984 worked. So the wife's claim was this. They had divorced in Russia that doubt with the finances there. But in in England she brought an action under the much mone in Family Proceedings Act of 1984 for relief by way off a financial order. Onda claim that she brought was she was seeking an equal share of the assets held in the party's joint names. Now those applications are such that at these can be, of course, brought where there has been, as in this case in overseas divorce on, but should require leave of the court to do so. On Dada court shall not grant leave unless it considers there is a substantial ground for the making off on order and in the circumstances on under section 15 of the act, the court needs to have jurisdiction or that we love jurisdiction to entertain an application. If either of the parties was Thomas, hardening the world's up the date of the application or was habitually resident throughout the period of one year, ending with a date on the application for leave okay on that ihsaa need then for the court to look at the financial benefit on the core is quite considered financial benefit. Dwight at had recede in Russia in consequence of the divorce, and she said that she had received demand in Russia akin to 41.5 million US dollars. But the husband said it was double that amount. But of course the court would need to be clear as to exactly what I'm at. The wife had in fact, received. So what what right did the wife actually have to apply? Well, this is where Section 16 subsection two subsection F requires a court to consider any right that the applicant has or has had to apply for financially from the other party to emerge in Russia that a wife had been involved in extensive litigation oversee than the husband did, say that her application here was a sheet, as he put it, a second bite of cherry. But more so, he said, not so much a second bite in many respects from Bring Deed more akin to a 60 bite of the cherry. So he's argument was that they had been pierced application, and the wife was really just keeping, bringing back, trying to get more, more in the circumstances. So what is the position and with Dear Board that the wife had already got? Well, one of the things that court does have to look at is a length of time. It's been since the divorce under Section 16 2 subsection one on the length of time they for that had elapsed since the divorce and divorce had taken place on five years previously, the court do think that the five year period could can't necessarily greatly against the wife in the current circumstances. So what about the award that she had already received a corn to English while standards? How would the court view that will in relation to what she had received? The court did say here that what the wife had received by English standards was a poultry award bearing in mind the length of the marriage under whilst accumulated by the husband doing a marriage if they have bean English England residents. I had divorced in England. We had looked at apply Section 25. The court did say that the wife would have, in fact, received on the ward off a higher sums. Of course, he's Lordship was a team prepared to say the judgment that she would have got more had she actually don't define Nancy's in England as opposed to Russia. Now this is where some of you will know that there's been a previous key decision on this the case of a man and cement, which was referred to, and that it was a case where, by a wife again in Russia, who had the finances resolved, that brought in action in in England on again. In that case, the wife was referred to us seeking a second bite of Sherry, and she was unsuccessful. In that particular case, the wife was arguing that in Russia the court had only dealt with theme ain't inside our matters and endowed it resolved the capital side on before she was bringing an action for that here. But in fact, the court took the view that that wasn't the case. In fact, in Russia, they had it out with the proceedings. They in terms of the financial orders on the financial remedies on that just because the orders available, Russia differently order still available in England. That doesn't necessarily give the wife a right to bring a further course of action just to give to get more than what she did previously. So the corn on less refer to this previous case, Onda Husbands Legal Team did argue that if disclaimed by the wife was allowed to proceed, as he put it, this was a six bite of cherry. Then he said that there would be no limit to divorce tourism so people would actually pick and choose as to which country they would lodge their divorces to which country they would seek to proceed. If financial orders and indeed even trying lodge on the financial application in England, even though there has been a fallen divorce through the 84 act just to be able to get more under court questioned whether it should allowed to cling, to proceed on a limited basis only namely that off means on that. This is where the called then looked at the situation in terms of the criteria under the court did say that would matters such as this what one has to look at his this duties on the Section 16 and some team together imposed into related duties like the weather circumstance of the case, England Wells is the appropriate venue on whether or not they should be making an order, having regard to order circumstances and in particular having got to the emcee. A. But what the core emphasize was that part three off the 84 cannot be used to top up following provisions in relation finances in order to make it equate to an English award. It follows that the mere disparity is insufficient to trigger the application off part of three. So we shouldn't to use the A careful back here just to be able to give somebody on amount of what they would have got her day lodged, divorcing the finances here, supposedly what they got in another country, and the court did say that really, what this case was highlighting is that this was a classic, classic example of a spouse whose background was such that married life were fixed in their home country. In this case, Russia. Andi she had very little if any, connection with England, whether by presence by three assets being here or business activities otherwise on. And what the wife was doing here was to try and take advantage off what was going to be a more generous approach to the financial claims than what she would have got in Russia. And this is where, like to say, the husband was therefore arguing that if this was allowed to be no limited, so called effectively divorced tourism, Onda should therefore to court allowed to claim on should they allow it to proceed on the basis of just meeting needs, not a core exception. After wife was successful on the facts, he would achieve a better stunned of living and one which you could argue she was entitled to. But and this is the crux of this judgment. It wasn't foot English courts to correct what may be regarded as being the deficiency of other legal system, so it's not appropriate and correct for English courts to impose what people may regard as being fair. Andi, of course, if the boot was on the other foot than it was, could work certainly to to our disadvantage in the sense that it would be easy to imagine on being accused that other courts don't saying that people are using English and Welsh courts, Reacher chief fairness, which would then imply that courts in other countries are not therefore dividing assets on the pace of what's reasonable, unfair on the court did say that he cannot focus on needs to exclusion of the other factors under Section 16 in that regard and therefore, with that in mind, the court satisfied that in fact there was no solid basis for making the award on, hence, the application by the husband to dismiss the application for leave to bring a claim on the par three off the 80 forward would in fact be granted in the circumstances on perceived injustice in one country does not entitle a person to get more in different country, which is effectively what the wife was trying to claim here. So they from that basis the wife was are going to be unsuccessful under facts So again, you can see a very important decision on there for one that we do have to be clear about when we're dealing with matters off this kind. Okay, now that then brings me on to this other case off Acme or Dove and commit over. And this links in from the previous judgement that we looked at. So this was handed down by Mr Justice Nolde, sitting in the High Court of Justice Family Division on the 22nd of November 2019 on what this really is looking at is thes positions running our documents, which may have been obtained inappropriate. So this ties in very much would be position with the imminent set off documents that turned up we deal with. So this was a judgment given for in the application of Mrs Sakamoto over pursuant to u K u L A. Gates BK Freezing orders at 2014 Decision Andi, essentially, this case them formed part of long running litigation between the wife and the former husband. A Z. You know, earlier in the session, I spoke about the freezing Gordon that the wife had obtained on also be joining enough d trustee. So it follows on from name Andi in tears of the documents than there were documents that were provided to the wife by the sole director on Also, employees of the asset management company on this director of this company had accepted a job from the husband, set up and run the family office. I had a course of his employment directors received, had received information relating to the husband's companies, esos financial information to its various bank statements and also, for example, details to living expenses and costs generally. But a relationship between this direct and husband broke down and her husband and subsequently dismissed the director on, and this director had been required to do. It'll do a lot of work for the husband to wind under company. He did also retain after he was dismissed, somebody Iike equipment his office PC on he had emails on documents which was stored. A later, this director contacted the wife to offer to help with managing her interests and also enforcement efforts in terms of trying to figure out what assets the year the husband actually did have on. But that's very much wear this issue about it. Always, therefore, because the question then, was the documents that the director had offered to assist a wife with Were those documents that he was in touch to provide with the documents that the wife was entire to use. Their foot brings into play d D position with a moment and also UK LTD case and the whole director and had contact your wife to offer to help her. I would imagine her interest in a litigation enforcement efforts on day. He said that there was no discussions, relation documents. He had a two time, though he did concede that the wife would been aware that he had information about husbands financial situation in so far as that is concerned. So what he did was this. He actually provided Don't the USB stick, which contained some of the documents he had, which were relevant to a strategy deployed but her husband to try and hide somebody. Assets on Wendy's were provided, but the wife was instructing lawyers to represent her in the English proceedings on the director, informed US listers off the documents on arranged date and arrange for a director to give these documents to an independent barrister so that he made and review them for privileged material. This barrister then concluded a majority of documents were covered by privilege. So just posing there for a minute. What's the position then with accessing off documents in these types of situations? And that's really one of the first things really got this case very mature looks at. And this is where the judgement in particular paragraph 17 off her on this judgment, Day four sets this out some advice it very well. What the court said here is that the modern principles surrounding illegitimately obtained documents were set out in a case off him under 2011 case on. In that case, the wife's brothers had obtained confidential information by accessing the husband's computer records without his information on and copying dolls and and making those available to the wife's lawyers. So what the key principles? Then, that came out of a moment or firstly, the court was saying that it is a breach of confidence for one person without the authority of the other two examined or make or retain of supply copies to 1/3 party of a document which is confidential based, very nature, and one person lord already been tighter to obtain an injunction to stop the other there from looking at the documents and to prevent them from passing those on the subject of any good reason to the other person. A claim based on confidentiality is electable claims subject to normal active principles in that regard, so those are somewhat of principles. Also, both her husband and a wife can blow both claim confidentiality against each other in relation to documents on. But there's therefore no principle previously what we used to call the Hilderbrand rules, by which a person can actually engage in self help by obtaining information which otherwise would be concealed or destroyed. So there's no right to go on access information which is confidential and go on self help. In that regard, however, claim for breach of confidentiality may be defeated by showing that documents revealed unlawful conduct intended unlawful conduct. So even if you do obtain them Onda, you obtain them inappropriate and of course, any claim for computer confidence chanting, maybe be defeated by showing that the documents for field unlawful conduct. But that doesn't nonetheless give one to right to go on access them in the first place on the court therefore needs to strike a balance between the two competing concerns between one. Somebody who's who should obtain improper benefits and being able to use confidential documents which were obtained unlawfully and secondly at the other person should not disposal for high documents which may may be applied to dispose of in that situation and therefore making it. The doctor may have to disclose world in that situation. Therefore, Del deliberately trying to hide. So therefore, it's a question of balancing the two elements there. OK, even if documents are illegitimately obtained on, um, there may still be admitted part of court, so there's still have discretion there. Onda Court did say that relation to the principles and implement these were applied in a later case of you L against BK and one of the key things that came out off at that case was that sisters who received documents are to return these to the other parties. Listers could ensure that day off referred to as part of duty of full of disclosures off example. If se wife was to bring to me documents which she's saying she would not ordinarily have access than I should not be looking at those. I should be invited to return those and not keep copies onder if documents are obtained, which the wife maybe suggested that she does have a right to. But it teases the speech body aside, and the U L and B K case would require then considerations to where the doors should then be returned to the other party solicitors. And if these documents are relevant and he's part they do to you, Frank providing disclosure, they shouldn't be disclosing those. And but in the event that the other party does not have solicitors acting for them, then this is where the court should be asked to provide directions on the court is likely to direct in those circumstances independent counsel to them be appointed to then give proper disclosure. Okay, that's one of the things that came out of the UAL case on, uh, both. The court in this case recognizes their for that clean cans principle. Therefore, very much applies in the circumstances and left what is very important. Therefore, decide and make sure that us don't properly with that in mind, what happened here while the watch lawyers should have made an application for a review by an independent counsel, given that husband at the time was actually without Lewis. So I should have except that light off the U. N. B K case, because her lawyers were given documents by her under Jandi, a USB stick which were given to her by the director. And there was question Marcus to confidentiality. Don't should have them be provided to husbands lawyers, but we give a given. He did have lawyers of time. The court export have expected the lawyers for the wife to obtain directions from the court so as to then instruct counsel to then reviewed those documents. So Directions Auto have been given from the court. When the director gave the wife lawyers those documents and therefore before the review and she took place, the court was told that the wife did apologize to the court that this, of course, had not been followed by her. That's listers on the court family surprising that lawyers fell to make its necessary application a sooners or shortly after documents were in their possession on term, the court was therefore fate, very concerned about the fact that this was not done. Okay, so what did the court actually decide on the fax bearing in mind that these documents had been obtained. What course satisfied that the documents were not confidential on. Therefore, no relief should be granted to protect any confidentiality and the fraud exception to privilege applied. There's no reason, therefore, to order that the wife should return. We'll make no use of these documents which were made available on their photo. Assessed apart is going forward to a number off gliders points which were given in this case to assist, like, say, going forward. Firstly, that the court gave some suggestions to his old potential difficulties, which made in a rise in circumstances where the owner off the document from tearing green issue is represented. It was not represented by its lister, always failed to engage within the proceedings as in this case. So first in application to call for directions must be made in circumstances where the other party is UN representatives. So that should have happened here and it hadn't been so. That's the first thing that should be happening in these circumstances on it should be made as soon as practical after documents came into the lawyers possession delay, therefore, must must be kept to an absolute minimum in this regard. And if the court does make an order for a review of documents by an independent lawyer such as the council, then it would usually be a proper for in order to permit the other part of them to make representations if they so wish. Studio Indepent lawyer. Setting out Why They believe that deep, materially subject legal professional privilege on the Rive English attempt to actually produce a report which reported police to both sets of parties under court in the event of a disagreement. And if there is disagreement about 1/4 of a few by either the one party or the other, the matter should then be refers to call for determination on the circumstances. One, usually the living lawyer considers the assistance of the court is required, then that those lawyers should restore the matter to court for directions. On that Lloyd shouldn't prepare report explained the basis of any referral to the court. In those circumstances of case you can see, the court took the opportunity to set out some very important guidance are going forward with matters off of this nature. Now the next case wanted to refer to also off November 2019 Pounded on by Mr Justice Moore is this case of new on neo. This was handed down in the family court and what this case we looks at is the issue surrounding conduct costs and also setting aside orders in appropriate cases on that. This was an application which was actually brought by the year Husband has set aside in order for the determination of the amount for which the wife was lie Batumi relation to he share of the proceeds of sale off the former much when your home and also for the payment off. The amount determined to be do on his case was that the order does was obtained actually by consent had in fact been obtained by way of fraud. So he was effectively applying for in order to set aside a financial remedy. Auditor had been agreed and set aside on the basis that had been obtained by fraud. And this is where the wife, in fact, made to cross applications one for the enforcement of the maintenance of years as purty order where he was, the husband was to pay him maintenance and also for her to get in order to vary the periodical payments in order and secondly, she sought for on a plane for maintenance pending suit. Now the wife was acting in person on diversifies. The MPs is concerned the maintenance planning suit. The court had to tell her that this application had to in fact be dismissed because in fact, decree absolute had already been pronounce and therefore there was no jurisdiction to make the MPs order in the first place. Safe for the ONI application of wife's, which would be considered would be the Empire application for the enforcement of the maintenance of years on all sort of variation of the PP order. But the husband was saying that the original order shouldn't even remaining place because his argument was that he was obtained by way of fraud on the part of the former wife. Now this is where, as you know, consent orders can be set aside after the event on the pace of, for example, material, non disclosure or if some information comes to light later which suggest that was obtained by fraud or otherwise, which is really very much what the wife, the husband was arguing here on the court, specifically referred to leading or thought he's on that which many of you will know about the case of Charl Unde on also cohere these work. The case is handed down in October 2015 by the Supreme Court in both cases cases whereby the former wise had applied to successfully to set aside the consent orders which had been obtained on the basis that their respective husbands had in fact, lied. Dune doors for naturally proceeding says principally as to the value of the assets and also as to the extent of the world on there for what they had agreed was substantially less than what the wives, respectively, would have got had the husband's provided full of frank disclosure had been honest and not been fraudulent in their approach Sunday. Ford, of course, specifically effectiveness Charlotte for Charlotte undergo he'll cases because, of course, those principles in those two cases were therefore relevant on the facts for this particular case of new on Neil. That sort of course, said that fraud is established in the order will, of course, be set aside, saving very limited situations such as we found the time to call made a consent order to fraud would not have influence a reason a person to agree to it or you wouldn't really have made any significant difference to the order that was already granted into circumstances on the court here did say that it was hard to imagine how they could be anything other than a set aside or at least part of the order, if the core satisfied that the wife did perpetrate a fraud under husband. In the circumstances on that your fraud, her husband, it's that took the form off. The wife not obtained the husband's informed consent it'd eventual order on due to the making of the substance of periodic payments order. So this is one where duty financial relief proceedings effectively. What was happening here was that the wife did have the benefit lawyers. Andi. She had obtained her, got her lawyers Then, too, uh, basically amend the terms of the order without her husband's consent. And how had did this actually happen and will essentially the court set out that they had to be some serious findings made against the wife on the essence off. These were these. Without her husband's knowledge, the wife had got her lawyers to amend the terms in the first order to delete the charge back on to include nominal maintenance of £1 per annum. Onda husband refused to engage in the wife's lawyers. Hit, in fact, sent an aggressive email to your wife, saying, You don't wish to really hear from my lawyers. But this probably wouldn't have happened, had engaged in the process of that staying. In fact, if he had instructed lawyers than deceit may have been exposed, and I was the thing the wife had, Lewis should instructive them on, um, and effectively. What happened is, uh, the DeLuise were then certainly been instructed by the wife as to what was being soared on. But it was only natural and for firm of solicitors than to believe that what the order was that had been signed was one that was, in fact approved body of the party. The husband like, say, was a litigant in person. On that there was provision for that for maintenance on, in fact, also for the periodical payments. But a husband's argument was this. He said that the order was sent to him at the wife sent D consent order through her lawyers to the husband husband said that it was sent to the to him on Bond. The wife said that the final order that was signed was the signature of the husband, but turned her husband said that he accepted that he did sign something, but denied that he signed a consent order. And the wife said that he was unable to identify the fake signature when she cross examined him through third lawyers. The handwriting evidence was equivocal on, although the wife had every or propensity to sign documents the court could not be short of. The husband did not, in fact, signed this particular one. And of course, that's fine. He definitely did sign a document, but the husband's argument was either he didn't sign this document. If it did, he didn't appreciate that he was actually committing to making a life long maintenance off some £5500 per month to the wife. And that's really the issue here. In that the point that was being raised, what that day husband argued that although he signed the document not necessary, that document that he thought it was, and secondly, he did not remember who could not remember having had signed that document on which he had no knowledge off. And that's really one of the things here because if, as in this case, the wife's got a bent, benefited lawyers, uh, negotiating with her husband, they send him to draft consent order. They invited him to read it. They watched him to take independent legal advice, if silently about the contents of it. He signs it, but he doesn't propose to not know what he was actually signing on. Subsequently to document was filed at court and it was approved on, um later. He felt pain, the majors. And that's not for one to try and us simply because he didn't appreciate. He said that he had actually signed a document expecting him or requiring him to actually pay. That s o following the sale of the property. The husband did not pain you the maintenance, because putting it simply had no idea that he was actually supposed to pay this amount. Andi, he wouldn't have agreed to do so. In any event, he said Onda, he said that it was clear to him that there should be a clean break on But he did say that he had agreed to pay the wife on amount of maintenance, but not as her. What was in the order now? The court was satisfied that the husband had been very naive on that course. That's fun and the fact that her husband was, in fact my evens in the sense that that's not a crime, of course. But this was a feature and often featured, which would do have in financial remedy cases. Dishonesty was also a regular feature of financial remedy cases. Andi Ladyship did say that should never come across. That court order like this one were by fraud, had been obtained in a manner where the actual consent to the order was obtained dishonestly. Andi, the court did regard This has won the most serious forms of conduct as provided for for the pips of section 25 to G. As you know, that allows the court to take into account conduct where it would be inequitable to disregard it on on the facts. The call was in fact, satisfied that the order can and should be set aside, which there were therefore going to be doing the course satisfied that her husband wasn't up to a set. Aside of the order, his application have a wasn't to seek a total set aside. He wanted to set aside the part of the order relating to the period of payments order on for the court to determine what they thought would be the appropriate amount to be paid to the wife in the circumstances on bond. The court therefore said that the only reason why clean break order was not made in the period sword was because the wife was deceitful twice has to matter. Firstly, she told US listers at the parties had agreed to nominal Masons when they hadn't, and secondly, she told him that the husband had agreed to a substantial made him sort of when, in fact, he had not done so. Onda. She should not be in a position to be able to benefit that from her deceased from her deceit that a court new not a huge amount of to the husband's financial position do. I said that he was do very well. He had a huge income. She said that he drove a Bentley and the Mercedes Jeep that was living in a house costing some 8500 per month to rent on the other, always taken luxurious holidays that the court had not direction to follow for me. Nor had the wife being to investigate the circumstances on the court did say they'll take the wife's position that it's heist on. The court would assume that really to financial position was, as she was suggesting on what happened. Therefore, was this the course satisfied that the wife will not get to substantial nations from the husband? In the circumstances, there was no realistic prospect of the wife would ever get a substantial maintenance order against her husband. The circumstances? One because off the wife's conduct a course simply quit ignore. That was off a serious deceit on the part off the wife Andi. Second, if she had not engaged in this conduct, they would have already been acclaimed Clean Break many years ago, and also she really brought a lot of difficulties upon herself on dumb. She could have, for example, invested a lot the money she got from herself to property. But she had found to do so, and the court also said Davis inconceivable that a judge would order her husband paid his wife maintenance without lank him to the doctor money. He old He was old, given her conduct as well. On Dada, Husband was invented accommodation. He stated he had to borrow significantly to fund his litigation and therefore that obviously would also have to be taken account, therefore summing it up. But the court said that this was one of those very rare cases where the court must take into account conduct and here the wives conduct. And if the court allowed wife to proceed with a claim for maintenance to court, be longer to benefit from a fraud in the circumstances, that sort of long marriage there was a child on the wife's conduct was magnetic importance in the circumstances. So what did the court actually decide on on that basis when essentially they're dead? Just did decide on a clean break saved up. The wife did all the work husband amount of short of £250,000. That, and also the court was minded to report the wife to the DP piece of department paying pensions on the court would have done so. She not associate director of public prosecutions and the court would have done so had she not already served in eight month sentence for contempt. So that was also the other issue. The court also ordered a wife had to pay their husbands costs on an indemnity basis on and he's taught costs where 293,652 police fat on the course. Esther's cost in the region of £250,000 including V A T. Therefore, the wife had to pay those willing 14 days with interest in default at 8%. So you can see it's a very significant case, this one, which really looks at the setting aside of consent orders based upon deceit on the conduct, really that the the wife had subjected the husband to in the circumstances which led to do you clean break and the order being satis side on. Also, indemnity costs being awarded a swell that a final case want to mention today's the case of MB against E Bi Onda Dis ease a case handed down in December 2019 by Mr Justice Cohen Sitting High Court of Justice family division. Really, what this case is looking at is asking the question as to whether the wife in the circumstances would be expected to pay the husbands at standing needs where, as in this case, his needs were much greater than that. The wife's on a case related to an assessment off as to where the husband had extending needs, which the wife should then meat, or whether we did a case should have. Actually, Bean resolved much earlier, prior to that on. It's a case whereby the wife, except that she had resources available to her in the region off some £50 million that her husband was a struggling artist. Hey, had Father statement setting out there over a period of about four years or so. He had only sold about two paintings from his office lease profession, and these were a total of about £5000. So really, he had no realistic prospect of any meaningful employment. He had lived in a converted garage, which is now effectively a studio where he was doing case his painting wouldn't upstairs sleeping platform. He lived there so I could rent out the flat on his income. Net of tax and expenses was in regional about £16,000 a year on but the studio they lived, it wouldn't really be sufficient accommodation for the long term. And he spent a lot of time abroad on his income needs, he said. When the region about £3000 now the wife didn't challenge the £30,000 is being unreasonable saved at her, she said that she couldn't afford this if it became necessary and if it was necessary. But a court did in fact disallow this on the basis that if your husband's artwork wasn't selling, that it wasn't something otherwise should be obliged to fund. Of course, his income needs were knocked down to some £25,000 per annum. Now the parties had in fact signed a document previously on some years. Previously, there's an agreement reached between the parties put in a document that boat taken legal advice. The effect was whereby the husband would be given what he asked for, which was namely, a flat, where he could rent out rooms to have an income and a studio which critic work on. It was to be no further provisions on that. This was a short marriage of some four years under excited had actually agreed between themselves as to division off the marital assets. Previously on uh, this is really limited. What they had agreed was limited to what it was felt the husband would get, given the short marriage in the circumstances. Now, the wife had in fact, made two offers Onda wife and my two off the first tee off. It was the sum of £300,000 which was a current meeting. He's costs off some £155,000 plus interest. There was no response from him. And then about a year later, the wife increased her offer to 336,000 which would leave him leave her husband slightly worse off on that This would help him towards his housing costs and the tragedy latch the order. Why should pay the sum of 236,000 by both legal saves? His order. Andi provided that the husband was to grant her a charge off the interest in the flat, which was in his name to secure that money that she was putting forward to meet his costs on bond. Like, say, the offer was in place on the the court was very concerned about the fact that really this was an easy case to settle in. The should have actually settled much earlier than what day, what they did. And really, the case went on much longer than when it should have. Bean Ah, some of about £25,000 for life for a man off 59 years of age would require lumps on about £325,000. Andi, here at court was concerned that the case had not settled when he should. Now court came to the view that the reason that this case had not settled that was because the husband under way in which he decided to run his case, he said that the marriage had lasted some 17 years and in his view that was a very long period of time. The parties remained married for a very long period of time, yet contributed and tight towards the marriage. So really, this was a case where by the wife had made to office previously, uh, she had offered initially on amount off some £300,000 in about year later increased their offer to some 3362 denk over some of his fees, but he had accepted those on, as I say, this is one whereby the court was very concerned about the fact that that this has and really was a very easy case to settle on. Um, really, for man off this man's age, 59 years of age, a sum of 25,000 pounds for life, according to dusk ducks pre tables would would have acquired in lumps off some £325,000. In fact, what the wife had often was a reasonable amount in the second on the court did say that the reason why this case haven't settled was because frankly of the way in which the husband had chosen to, uh to run his case on Did sought to argue that firstly, the marriage lasted longer than what he claimed it had. He said they last for 17 years, but he was trying to rely upon the fact that the parties have been living together for a period of time. He also argued that he had made a full contribution towards the marriage is a homemaker. He argued that this was a case where he had a sharing claim on that The agreement under entity previously was of more relevance, he said, because he was arguing. Do us on undue influence. But the court took DaVita. Each one of these arguments that the husband was running was, in fact misplaced. Andi was wrong in the circumstances, and the court therefore took the view that all of these arguments that the husband was running really had failed or sway really in terms of the decision that the court would make on the court, therefore decided that this was a straightforward needs case, and even with the expense off top firms of solicitors, it should not have really cost each side more than about £100,000 in costs in with a view to resolve in this matter. So what was the position with costs and also the decision? While the court said that an award of £325,000 would be ordered to meet their husbands needs for an income on the Firth £10,000 for the replacement, his vehicle on that this was really still less than what the wife had previously offered him in the circumstances, and so far has cost his concerns. You'll be aware of Part 28 or the family procedure rules on in particularly 28.3 and in particularly set Saturday in deciding what to order for me to make in relation to costs at the court must have regard to any failure by party to comply these routes on the order of the Court of practice direction, as well as to consider any open offer to settle by a party as well as whether or not it was reasonable for party to pursue. Veysel run a particular course of conduct, an issue on the money which they pursued their argument. Now this is where the court did say that paragraph 4.4 practice direction 28 a was amended from 27th of May 20 at 19 saw that it's now amended to also incorporate This provision says that the court will take a broad view of conduct for the purpose of this rule and were generally conclude that to refuse openly to negotiate reuse them tend to responsibly will also matter conduct in respect which to call, would consider making order for costs. Okay, so to refuse old police negotiate reasonably will also not be taken for counter. So this inclusive in a needs case where the applicant litigate unreasonably, resulting in the costs incurred by part of becoming a disproportionate to the amount Italy Award made by the court on where, in order for costs is made action from stage, the core would not, usually allowing resulting liability to be reckoned as a debt in the computation of those assets and can see this that this was brought in as well as of May 2019 and here the costs. The payment was in the region of some 1.2 million worth of costs between the parties, which is grossly disproportionate to the actual amount. That was an issue on bond the wife's offer, although on the one side it was light, if there had been a sensible response than that could have been a quick resolution to this matter. Onda. The court, therefore, did order costs. Andi, in fact, a court capital, iVillage, costs off £250,000 in that regard on. But this figure was identical to what? Because where that the wife made in her open off previously so you can see that this case not only does it really bring into play the need to ensure that when you are negotiating, it's got to be obviously reasonable and that sometimes what appears to be called a complicated case, in fact could have actually been dealt with much earlier on in easier, mature Leon, but also make make sure you're aware of the fact that there were these amendments to the family procedures, particularly related costs that came into effect in May 2019. Okay, so that brings this session to an end. You can see I've covered a fair bit today. Looking at some of the key aspect surrounding financial matters, in particular, particularly matters relation on disclosure documents obtained inappropriately, we've looked at the position with finances falling on overseas divorce. We've looked at the position surrounding dissipation of assets and acquisition that way on that, we've also looked at the position surrounding conduct costs and also indemnity. So there's been quite a lot that we've covered on the financial side. The final session, Session three, which have been covering next. I'll be going through a few more things on finances, but also look at some aspects of Children law and also some aspects on domestic abuse particularly domestic abuse bill. Thank you very much indeed for listening. I hope it's been a useful session for you, Onda. I speak to you next time. Thanks very much. Bye for now.
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