Case No. BV20D0029

Between :Charles Howard QC and Joshua Viney (instructed by Hughes Fowler Carruthers) for the ApplicantJames Ewins QC and Janine McGuigan (instructed by Stewarts Law) for the RespondentHearing dates: 7-11 March 2022Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.MR JUSTICE PEELMr Justice Peel :Introductory comments1.I feel obliged to make some comments about the preparation for trial of these financial remedy proceedings:i)By order made by me at the Pre-Trial Review, the parties’ s25 statements were limited to 20 pages of narrative. Para 5.2 of PD27A mandates that narrative statements, among other documents, shall be typed in “a font no smaller than 12 point and with 1 ½ or double spacing”. H complied. W’s statement purported to comply in that it consisted of 20 pages, but because it used smaller font and spacing it was, in fact, about 27 pages compressed within the 20 page limit provided for by me. The consequence is that her statement was about 33% longer than H’s. This is completely unacceptable, and W’s legal team should not have permitted it to happen. Court Orders, Practice Directions and Statements of Efficient Conduct are there to be complied with, not ignored. The purpose of the restriction on statement length is partly to focus the parties’ minds on relevant evidence, and partly to ensure a level playing field. Why is it fair for one party to follow the rules, but the other party to ignore them? Why is it fair for the complying party to be left with the feeling that the non-complying party has been able to adduce more evidence to his/her apparent advantage? ii)By para 11 of the High Court Statement of Efficient Conduct of Financial Remedy Proceedings, s25 statements must only contain evidence, and “on no account should contain argument or other rhetoric”. In this case, W’s over long statement crossed the line and descended into a number of personal, and prejudicial matters, directed at H which, in my view, were irrelevant to the matters at hand. Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion. Judges will deal with relevant evidence, and will not base decisions on alleged moral turpitude or what Coleridge J once famously described disapprovingly (albeit in a slightly different context) as a “rummage through the attic” of the marriage in G v G [2002] EWHC (Fam) 1339.iii)Approximately 1 week before the trial, I was notified of a bundle issue. W, in putting together the first draft of the bundle index, included a 102 page section of narrative comments by W and fresh property particulars, directed towards the issue of her housing needs. No notice had been given to H, who objected. I was asked to rule on paper. I largely acceded to H’s objections, concluding that this was an attempt to introduce fresh evidence, although I allowed the inclusion of W’s comments on properties already produced in evidence.iv)After the parties had exchanged and lodged skeleton arguments, H served updating disclosure. W objected either to the updates being adduced in evidence, or to the updated figures appearing in the composite schedules. I therefore started the trial with competing composite schedules, which was thoroughly unsatisfactory and defeated the purpose of having composite schedules in the first place.v)The working day before the hearing, H served on W a financial analysis of matrimonial expenditure through the parties’ joint account in 2018 and 2019. The itemised schedule consisted of thousands of entries. W’s legal team unsurprisingly objected to late receipt of this analysis. Commendably, in short order, they responded with a schedule of their own in respect of sole accounts so as to give a more complete picture. I deprecate the practice, which appears to be prevalent, of lawyers producing at the eleventh hour spreadsheet analysis of expenditure during the marriage (and/or since separation) based on primary documents such as bank and credit card statements which have been in their possession for many months. If an exercise such as this is to be relied upon, it must be provided well in advance of the final hearing (I suggest before the PTR or final directions hearing) so that the issues, and evidence, can be properly identified and case managed. 2.It seemed to me at the start of the trial that far and away the most material aspect of the case was W’s reasonable needs. By the end of the trial, my view on that had not altered. It is a moot point whether the wide-ranging, and at times bad-tempered, inquiry by the parties into a multiplicity of other issues achieved much of value.Background3.H is 55 years old. He is a B national who grew up in Switzerland. He is from a very wealthy family which has a significant stake in a publicly quoted company, Company 2. W is 52. She is a UK national. They met in 2001, started living together in 2002 or 2003, and married on 3 September 2004. The marriage came to an end in 2019 so that the period of cohabitation and marriage was about 16 or 17 years. 4.When they started their relationship, W was a PA at Goldman Sachs and H was working in the City. W stopped work when their first child was born. The two children, who are based primarily with W and will continue to be so, are now aged 16 and 13. Child A is diagnosed with ‘A’ syndrome and has only recently been able to undergo full school days; he sees a psychotherapist every fortnight and a consultant at ‘A’ institute. Child B experiences severe anxiety, including panic attacks, and has a history of self-harming issues; she sees a psychologist every fortnight. Both require particular care and attention, including attending frequent medical appointments. Both children attend independent day schools in London, respectively School X and School Y. Regrettably, the parties are locked in ongoing child arrangements litigation relating to Child B. 5.Prior to marriage, on 12 August 2004 the parties entered into, and fully executed, a Pre-Marital Agreement, followed thereafter by a supplemental agreement dated 2 September 2004 concerning child maintenance, as well as two Swiss agreements also dated 2 September 2004 which mirrored the English Pre-Marital Agreement. Pursuant to the agreement, upon marriage H transferred into joint names his pre-owned property at ‘X’ Street, SW5, and transferred into a joint account £1.3m of his own resources. The Pre-Marital Agreement made sliding scale provision for W in the event of divorce up to 1 September 2014, but was silent as to provision thereafter. It provided for a review “if requested by either party on ten years elapsing from the date of the marriage”. In the event, no such review was sought. There was some debate about whether the Pre-Marital Agreement had thereby lapsed or not, but it seems to me that on any view it has been overtaken by subsequent events and I do not need to grapple with that legal nicety. I will, however, need to consider the circumstances in which it was reached as (i) W says she signed it as a result of undue pressure, which H disputes and (ii) the contents of the Pre-Marital Agreement may inform later issues which I must examine. Of note, H’s wealth at that time (all non-marital in nature) was put at £4,317,754 which, with RPI, is over £6m in today’s terms.6.After marriage, the parties lived in London at the ‘X’ Street property. H left the City in 2005, and started to work in the family business, assisting in managing the wider family wealth (which essentially means his father’s wealth) and sitting on the Company 2 board. He spent increasing amounts of time in Switzerland, from where the family office was run. In 2009, he bought a property in Y town. In 2010, W and the children moved to join H in Switzerland. 7.The standard of living was very affluent, albeit not, it seems to me, of the extravagant super-rich variety. They have had the benefit of access to a fine property in the U area owned by H’s father, as well as their own properties in London, Y town and Z town. But their expenditure was not of the eye-watering variety often seen at High Court level, and they did not enjoy expensive trappings such as high-end cars or valuable chattels. Their homes in London and Y town are comfortable, and in sought after areas, but not vastly expensive. The competing expenditure schedules demonstrated, broadly, that in 2019 the total family budget on everything (in England, Switzerland and elsewhere, and including all children’s costs) exceeded £600,000 which, in my judgment, gives a helpful guide to the standard of living. 8.The family lifestyle was largely funded by the generosity of H’s very wealthy father albeit the provision of annual gifts was a tax efficient way of rewarding H for his work. Although the sums varied from year to year, H says in his Form E that “Over the course of the last three years I have received from my father donations totalling £1.17m”, which is about £370,000pa. In the schedule attached to the Post-Marital Agreement referred to below, he said that he received gifts from his father of £500,000-£600,000pa.9.From about 2015 onwards, the parties contemplated, and by 2017 agreed, that the children should attend school in England, feeling that both needed a more challenging academic environment than they were receiving in Switzerland. In March 2017, the children were offered places at London schools and in April 2017, notice was given on their Swiss schools. The intention was for W and the children to live in England, initially at ‘X’ Street, albeit there was an expectation of travel to and from Switzerland where H would continue to be based. 10.On 24 June 2017, H raised with W the idea of entering into a Post-Marital Agreement, to which W was clearly opposed from the outset. Nevertheless, both parties engaged lawyers, a first draft was prepared by H’s solicitors on 21 July 2017, and the parties, and their lawyers, attended a without prejudice meeting on 8 August 2017 at the offices of W’s solicitors, Hughes Fowler Carruthers, in London, which lasted most of the day. Further correspondence ensued and on 22 August 2017 agreement was undoubtedly reached. Arrangements were made for the document to be signed on 29 August 2017. In the event, W declined to do so, although her solicitor signed the relevant Certificate Annexe.11.Broadly, the Post-Marital Agreement provided for W to receive a total of, in today’s terms, about £7.1m plus child provision. It recorded the parties’ assets as follows:i)Husband £12,444,101