Family Law Hub

OS v DS [2004] EWHC 2376 (Fam)

  • Neutral Citation Number: [2004] EWHC 2376 (Fam)

    Case No: LN02D00278

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    06/10/2004

    B e f o r e :

    THE HONOURABLE MR. JUSTICE COLERIDGE

    ____________________

    Between:

    OS

    Petitioner

    - and _

    DS

    Respondent

    OS v DS (Oral disclosure: Preliminary hearing)

    ____________________

    Lewis Marks QC and James Ewins (instructed by Rooks Rider) for the Respondent

    Hearing dates: 4th _ 6th October 2004

    ____________________

    HTML VERSION OF JUDGMENT

    ____________________

    Crown Copyright (c)

    The Hon. Mr Justice Coleridge :

    1. Today I approved a settlement of an application for ancillary relief. In round terms the value of the settlement to the wife was £2m. Nothing exceptional arises out of the fact or amount of the settlement. However the procedural route by which the settlement was achieved was novel and, dare I say, innovative. Following settlement Counsel have invited me to set out shortly the procedure adopted in this case as it is thought to be potentially of wider professional interest. I agree with them and am happy to do so.

    2. The background facts are simple. This was a case involving a marriage of some eight years between a husband and wife both of whom had been married before. There was a twenty year age difference between them and there were grown up children but not of this union. The husband was a wealthy man by the time of the marriage. His wealth was generated largely from his commercial interests in Africa. By the time of the separation these interests were contained within corporate structures based in offshore tax havens (Jersey and British Virgin Islands). It was a very complex picture with a complex international history.

    3. The wife's petition was issued as long ago as February 2002 and her Form A in October 2002. There were contested maintenance pending suit proceedings. By the time of the First Appointment in March 2003 it was apparent that the underlying financial issues were complicated and hotly contested. Lengthy Questionnaires were served and answered which, inevitably gave rise to further questions; applications were made to join other parties (both corporate and human); and eventually further applications were made for leave to serve letters of request abroad. The whole application was properly transferred to the High Court and it was first listed before me by way of a further First Appointment on 14 October 2003.

    4. At that hearing I allocated the case to myself and made a comprehensive raft of orders directed to the provision of further detailed information by the husband and designed to timetable the case to conclusion. Many of the orders for disclosure were in fact by consent. I did not at that stage join any other parties as the husband was indicating that he would "use his best endeavours to obtain information" from those mentioned on the list of potential parties. The wife at that stage was content to accept that course. As part of the case management a further directions hearing was scheduled for 19 February 2004.

    5. Entirely predictably, by the time of the February 2004 hearing there remained or had arisen, so far as the wife was concerned, dozens of unanswered questions. So, understandably and conventionally, that hearing was intended to deal with the further questionnaires and the applications to join and for leave to serve letters of request. By this stage a final hearing had been fixed for ten days in May 2005.

    6. It was at that stage that the procedure took a novel turn.

    7. It occurred to me in my pre-reading for the February 2004 directions hearing that it would be highly desirable, before making any further decisions about disclosure or production of further documents or joinder of other parties, to have the opportunity of hearing from the husband on oath in relation to a number of the crucial, central and highly contested financial issues, both historical and current. As practitioners in this field know only too well, there are often innocent explanations for transactions. And on the other hand decisions to join third parties to expensive complex litigation in which they are only likely to figure peripherally are not lightly made. Furthermore, although certain explanations had been tendered the plausibility of such explanations normally has to wait until it can be tested at the final hearing with all the inevitable attendant increase in costs and delay.

    8. Accordingly I suggested to Counsel that a further hearing involving the oral examination and cross examination of the husband at this relatively early stage in the process might considerably shorten the whole and dispense with the need for many of the further documents and/or the joinder of intended parties. Although this was, I believe, a novel proposal, at least in the ancillary relief jurisdiction, both Counsel readily, even enthusiastically, agreed with this suggested procedure. They considered that it would be likely to save time overall and to enable them to tender more accurate and realistic advice about eventual outcome than would ever be the case if the only predictors available to them were the usual statements, documents and their own client's untested explanations.

    9. With counsels' agreement I therefore gave the following directions to enable a three day "preliminary/oral discovery" hearing to be as effective as possible.

    "There be a hearing, fixed for 4th October 2004 for 3 days, before Coleridge J, for the purpose of taking oral evidence from the Respondent and resolving the issue of joinder of (i) Mr A; (ii) B Ltd.; (iii) C Ltd. and (iv) D Ltd (BVI), for the purposes of which hearing the following directions shall apply:-

    a. Counsel for the Petitioner and Respondent do agree a Statement of Issues on or before 16th July 2004;

    b. The parties' solicitors do agree any further bundles on or before 30th July 2004;

    c. The parties' solicitors do agree a re-designation and full pagination of all bundles to be used at the hearing on or before 30th July 2004 (the existing bundles to be re-designated A-E etc.).

    d. Counsel for the parties do exchange skeleton arguments on or before 1st October 2004, such skeletons to take the place of an oral opening of the case at the hearing;

    e. 4th October 2004 shall be a reading day;

    f. On 5th & 6th October 2004 the following timetable shall apply:-

    i. There shall be no oral opening;

    ii. The Respondent's Counsel shall have 1 hour to examine the Respondent in chief;

    iii. The Petitioner's Counsel shall have until 1 p.m. on 6th October 2004 to cross-examine the Respondent;

    iv. The Respondent's Counsel shall have 1 further hour to re-examine the Respondent;

    v. The remainder of the hearing shall be used for further legal argument, directions and provisional findings.

    10. The directions were fully complied with and the hearing commenced yesterday. By the short adjournment on the first day the husband had been carefully and effectively cross examined by the wife's counsel on many of the crucial disputed issues and documents. Negotiations ensued and the entire ancillary relief application had been settled by the end of that day. The resulting saving of court time (10days) and costs is self evident and very significant.

    11. The advantages of adopting this process in the appropriate case seem to me to be:

    a. At a far earlier stage than would otherwise be the case explanations and factual issues can be fully tested.

    b. The need for production of further documents can be more rigorously considered. Trips down blind alleys can be ruled out or at curtailed.

    c. Preliminary indications or even findings can be made.

    d. The parties (and particularly the party under scrutiny) are able to appreciate at an early stage what they face in terms of examination both orally and in terms of the production of further documents and the involvement of other parties.

    e. Advisers are in a far better position to make accurate assessments of outcome and so negotiations are more likely to be fruitful.

    f. No time overall is wasted as the final hearing, where these issues would normally be explored, is almost certain to be shortened.

    g. The Court is able to immerse itself in the detail at an earlier stage and give more focussed directions and, in the right case, indications.

    12. I would not seek to suggest that this is the ideal procedure in all, or even the majority of, complex ancillary relief cases. Further any judge considering this course or conducting such a hearing must be astute to ensure that both parties' right to a fair hearing is not jeopardised. But where the financial substratum of the resources is bound to require considerable elucidation I consider that this procedure has many advantages including those set out in the previous paragraph.

    13. I have no doubt that the court has the power within the rules to order a hearing of this type. Whether it is designated as a trial of a preliminary issue or oral discovery or the first part of a split final hearing (c.f. public law children cases) the court has the necessary tools to case-manage in this way. After all the court is primarily conducting an inquiry, not an adversarial trial. The procedure is, in my view, concordant with the overriding objective applicable to ancillary relief proceedings set out in FPR 2.51B. 14 In the recent and not dissimilar case of J v.V. 2004 1FLR 1042 (involving serious non disclosure) I commented, not for the first time, on the obvious desirability of putting "the cards on the table face up at the earliest stage if huge costs bills are to be avoided" in these cases. The court should always be vigilant to discover new and better ways of encouraging and assisting parties to that end so that they can resolve their litigation in as cost efficient a manner as possible. I commend this as a procedure worthy of employment in the right case.


Judgment, published: 06/10/2004

Topics

Items referring to this


Published: 06/10/2004

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item