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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> F -v- G (Matrimonial) [2012] JRC 136 (13 July 2012) URL: https://www.bailii.org/je/cases/UR/2012/2012_136.html Cite as: [2012] JRC 136 |
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Matrimonial - application by the respondent that the petitioner be
directed
by the
court
to issue a letter regarding trust beneficiaries.
Before : |
Advocate M. E. Whittaker
for
the Petitioner.
Advocate L. J. Glynn for
the Respondent.
judgment
the deputy
bailiff:
1.
This is an
application by the respondent for
an order that the petitioner should by
close
of business on a particular
date
issue a letter to each of Bedell Trustees
Limited, Investec Trustee (Jersey) Limited and Investec Nominees (Jersey)
Limited making enquiry as to
whether
the petitioner or either of the
children
of the two parties is or has been or is ever likely to be a beneficiary of any
trust or trusts of
which
the recipients of the letter might be trustees; and
also asking of the same recipients
whether
any trust or trusts of
which
the
recipient is a trustee has ever made any payment, loan, appointment or
distribution
whether
in specie or otherwise either
directly
or to another
person but
for
the ultimate benefit of the petitioner and/or either of her
children
or the trustees of the K Trust.
The application suggested that such a letter should
contain
an
explanatory note that in
considering
whether
any of the petitioner or her
children
were
"ever likely to be a
beneficiary", the recipient of the letter ought to
consider
such a
matter likely if either the petitioner's mother or brother is
currently,
has been, is likely to be or is intended to become a beneficiary or settlor of
any such trusts
where
there is a power to add
further
beneficiaries.
2.
The application
is resisted by the petitioner who
goes on to make a
cross
application that the
Court
should make an order that no
further
disclosure
would
be sought
without
leave of the
Court,
save
for
on-going
disclosure
in accordance
with
the
existing orders.
3.
The
context
of the application made by Advocate Glynn on behalf of the respondent
is this. The
Court
has pending
application by the petitioner against the respondent
for
child
maintenance,
interim maintenance, spousal maintenance, secured provision and a lump
sum. There are also applications by
the respondent against the petitioner
for
spousal maintenance, a lump sum,
variation of a settlement and a transfer sale or settlement of property. These applications are
due
to be heard
later this year. On 6th July,
2011, the petitioner
deposed
to her affidavit of means. In it she
described
that she occupied as
a licensee a property ultimately owned by the K Trust. She also
disclosed
that in the last 12
months she had received income
from
the same Trust.
4.
The respondent
had a number of questions to raise on the terms of that affidavit. In her answers delivered
on 6th
September, 2011, the petitioner
confirmed
that she had made a request to the K
Trust
for
assistance in
connection
with
the payment of legal
fees
arising out
of the proceedings. The petitioner
was
also asked to set out in tabular
format
a schedule identifying "all
distributions,
loans,
facilities
or other benefit of any nature that the petitioner has received
from
any trust
or other
company
or other entity owned by a trust
during
the marriage".
5.
The
response to that question referred to a letter from
Advocate
Dessain,
which
it
is understood refers to the K Trust alone.
The petitioner asserted that she had no other
documents
than those that
were
provided.
6.
A further
question in the same questionnaire related to the alleged recent purchase of
property in London by the petitioner's brother. The question
delivered
was
whether
the
funds
used by her brother to acquire that property originated
from
a trust or
entity owned by a trust, and if so
what
details
could
be provided. The response
was
that the petitioner is
not privy to the private affairs of her brother.
7.
In
December
2011, the petitioner
delivered
responses to the respondent's
second questionnaire on her
disclosure.
In particular, the respondent had questions arising out of the petitioner's
statement that "to the best of the
knowledge, information and belief of the petitioner, she is not a beneficiary
or potential beneficiary of any other trust" [save the K Trust]. In that
connection,
the respondent had
delivered
a set of questions relating to a trust
which
he believed had been set
up by M
for
the petitioner's benefit, that settlement having subsequently
been transferred to Jersey on the advice of the late Advocate
Cristin.
The respondent also sought a
confirmation
as to
whether
the petitioner
was
or has ever been a beneficiary of
a settlement emanating
from
the maternal side of the
family,
namely the H
family.
In her responses to these
questions, the petitioner indicated that the trust transferred to Jersey on the
advice of Advocate
Cristin
was
no longer in existence as the assets
were
transferred to the K Trust in 1993 and she
was
not able to recover any
documentation
in relation to that earlier trust. She
further
went
on to say that she had
already
disclosed
her beneficial interests and she
was
not a beneficiary of any
other settlements as
far
as she
was
aware.
8.
A further
question
was
put in relation to the alleged purchase of property by the petitioner's
brother the underlying thesis of the respondent being that he had allegedly
received
funds
from
the petitioner's mother or a trust
connected
to the petitioner's
mother, and that similar support
would
be provided to the petitioner. The response
was
that the petitioner
was
not privy to the private affairs of her brother.
9.
On 11th
May, 2012, the respondent swore an affidavit particularising occasions on which
he asserts the petitioner has indicated she is entitled to benefit or has an
interest in the
family
wealth.
His
affidavit asserts that she told him in 1998 that she
was
an heir to the H and J
(Grocers)
fortune,
and that her mother
was
the sole
child
of Mr and Mrs H
who
themselves
were
the
co-owners
of H and J. He
asserts that the petitioner advised him that a Jersey
family
trust
was
set up
in or around 1970 by persons associated
with
Mr and Mrs H in order to
deal
with
the
family
wealth.
He
went
on to
assert that his researches indicated that the petitioner's mother lived
in a property
which
was
owned by a
company
called
L Limited, the two
shareholders of
which
were
Investec Nominees (Jersey) Limited and Investec
Trustees (Jersey) Limited,
from
which
he
concluded
that the property
was
held
under a trust structure. He
asserted that the original Memorandum of Association of L Limited and its
Articles
were
drafted
by Advocate
Cristin,
who
later married the petitioner's
mother and
who
himself upon his
death
left significant assets into the K Trust
for
the benefit of the petitioner.
He asserted that the trustees of the K Trust are Bedell Trustees Limited
and that he had attended meetings
with
them in the
company
of the petitioner to
discuss
matters relating to the K Trust.
He
went
on to assert that
during
the
course
of the marriage he and the petitioner
had enjoyed the use of a number of properties
which
he believed to be assets
settled into the
family
trust or otherwise owned by L Limited, including a
property in London
with
a value of approximately £2m and a property in
Staffordshire
which
was
substantial and had
formerly
been the home of the petitioner's
grandparents. In relation to the petitioner's
brother, he asserted that the purchase of property by him in London had been at
a
cost
of something in excess of £1.3m, that the petitioner's
brother
did
not have savings or borrowing
capacity
to purchase such an
expensive property, and that the petitioner had told the respondent that her
brother had been given the purchase monies
from
the
family
either by
way
of
gift or loan or both
from
the
family
trust.
10. The petitioner takes issue with
some, perhaps
all, of
what
is in the respondent's second affidavit. She
continues
to maintain that she is
not aware of being a beneficiary of any other trusts than the K Trust,
details
of
which
she has already provided.
11. The case
for
the respondent is that there is prima
facia
evidence of a trust. Advocate Glynn submitted that it is not
unreasonable to think that the petitioner and the
children
of the marriage
might benefit
from
such a trust and all one
was
considering
here
was
a
direction
to the petitioner that she should
write
to persons believed to be
trustees to enquire
whether
she
was
a beneficiary. The expectation
was
that a trustee
receiving such a letter
would
be obliged to answer affirmatively if in
fact
the
petitioner
was
a beneficiary under a particular trust, and of
course
that might
then lead to
further
enquiries being made.
Advocate Glynn emphasised that it
was
simply information that
was
being
sought and that this might be relevant to an application
for
income payments
from
the husband to the
wife.
This
was
merely a reasonable enquiry as to the means and resources available to the petitioner.
12. Advocate Whittaker
asserted that this
was
not
just an issue of sending three letters.
The
Court
was
being asked to authorise a
fishing
expedition. This
was
not an application
for
specific
discovery,
but it
was
nonetheless a
fishing
exercise. Had it been an application
for
specific
discovery,
the respondent
would
have been required to show a prima
facia
case
before obtaining such
an order. Reliance
was
placed upon Jones-v-Atkinson
[1989] JLR N 2c, Victor Hanby Associates Limited and Hanby-v-Oliver
[1990] JLR 337, Beghins Shoes Limited [1995] JLR N 4B,
D-v-R
[2001] JLR N 49, P-v-
C
[2002] JLR N 26 and M-v-G [2003] JLR N 28.
13. As there was
no
clear
evidence that a trust
existed, no order of this kind should be made. She
went
on to say that the petitioner
would
be embarrassed in
writing
letters to people she
did
not know.
Furthermore
the terms of the
draft
letter
which
the petitioner
was
requested to
write
were
far
too
wide.
In any event, to the extent that they
were
questions as to
whether
the
children
were
beneficiaries, the respondent
had parental responsibility and
was
perfectly able to
write
such a letter
himself on their behalf.
14. As to the provision in the draft
directions
that an order should be made restraining
further
questions being put
without
the
consent
of the
Court,
she expressed the
concern
that the respondent
would
always
find
something else to ask questions about, and that
dealing
with
constant
enquiries
was
a
disproportionate
burden
for
a legally aided party to
impose on a party
who
was
not legally aided, but in
fact
running short of
money.
15. It is apparent that the parties were
contending
for
different
tests to be applied.
The respondent
claimed
that the
Court
should make the order because it
was
merely ensuring that the petitioner made reasonable enquiry as to her means
and resources in
circumstances
where
the petitioner
does
not say specifically
in her affidavit that she is not a beneficiary of any other settlement. The petitioner asserted that she
was
in
effect being asked to give specific
discovery,
and that this
was
a
fishing
exercise.
16. What
I have here is an affidavit sworn by the petitioner
which
contains
the statement at page 15:-
"I, F
of [ ] make oath and
confirm
that the information given above is a
full,
frank,
clear
and accurate
disclosure
of my
financial
and other relevant
circumstances."
The affidavit is sworn.
17. The respondent is correct
that there is no
statement in terms that the petitioner is not a beneficiary of any other
trust. However paragraph 2.16 of
the standard
form
requires
details
of any assets not listed above to be set out
and includes the guidance that trust interests, including interests under a
discretionary
trust, stating the estimate of the value of the interest and
when
it is likely to become realisable, should be
disclosed.
The guidance also indicates that if a
party
considers
that the interest
will
never be realisable, or has no value,
reasons must be given. Accordingly
the statement
which
I have set out in
full
above that the information is "
full,
frank,
clear
and
accurate" must be taken to include a statement that there is no other
trust interest of
which
the petitioner is aware. In theory, such a statement
could
be
truthful and yet incorrect in the sense that there
was
in
fact
a trust interest
of
which
the petitioner
was
unaware.
18. If this were
an application
for
specific
discovery
in relation to a particular trust, I
would
accept the submission of
Advocate
Whittaker
that it
would
be necessary
for
the respondent to show a prima
facie
case
that such a trust
existed. However this is not the
application before me at the moment, and I therefore
do
not think that that is
necessarily the test
which
should be applied.
19. I accept the submission made by Advocate Glynn
that a party must make reasonable enquiry to ascertain the assets which
he or
she might have. Here, in my
judgment the respondent has
done
enough that the petitioner has a
duty
to make
further
enquiry of the three
financial
services
companies
which
have been
identified. At this stage, all that
is being required is that a letter be sent. As I put to Advocate
Whittaker
in the
course
of argument, I
would
have expected the petitioner to
want
to know
whether
she
was
a beneficiary of any other trusts, and it seems to me that it
is unreasonable not to expect this enquiry to be made.
20. That is not to say that it is legitimate to ask
a question of these financial
services organisations in the
wide
terms
which
have been
drafted.
In principle the
petitioner is not entitled to have information about the
financial
affairs of
her mother and her brother.
Generally speaking, these are private and
confidential
to them; but
there is an important qualification.
If it is so that their private
financial
business has an impact on the
financial
position of the petitioner, then at that stage it may be relevant to
procure that
further
questions are put.
The reasonable enquiry that needs to be made is therefore of limited
ambit in the
first
instance, but that
does
not mean that
further
enquiry might
not be relevant later,
depending
upon the nature of the responses. There may
come
a time
when
issues of
proportionality
will
limit the
further
questions that might be raised. At present, I think that the letter
which
the
Court
would
be prepared to
direct
the petitioner to send is a
proportionate response to the issues
with
which
I am now
faced.
21. Essentially, I have reached the conclusion
I
have because it
does
not appear to me to be right at this stage to make any
assumptions as to
whether
the evidence of the petitioner or the respondent on
the matters
contained
in their affidavits is likely to be preferred by the
Court
at the time of trial. I
therefore proceed on the assumption that the respondent's assertions may
be true. If they are true, then
there is a probability of a
family
trust - other than the K Trust -
of
which
the petitioner may be a beneficiary. The
fact
that the property
which
the petitioner's
mother occupies is owned by a
company
which
on the
face
of it is at least in
part owned by a registered trust
company,
also points in that
direction,
and if
the mother is a beneficiary, it
would
not be at all unusual
for
the issue and
remoter issue also to be beneficiaries.
Whether
such a beneficial status
would
have any impact on the
probability of benefit in the short to medium term is of
course
quite another
matter but one
would
not know the answer to that until the information has been
obtained.
22. I turn now briefly to the question as to
whether
the petitioner should send the letter only
for
herself and not in
respect of her
children.
While
I
accept the view that the respondent has parental responsibility and is
well
able to send a letter on his
children's
behalf himself,
convenience
and
practicality
would
suggest that it is better
for
the putative trustees -
for
of
course
that is all they are at this stage - to receive one letter
rather than two, and to receive it
from
the petitioner.
23. The draft
letter
which
the petitioner is
directed
to send to each of Investec Trustee (Jersey) Limited and Investec
Nominees (Jersey) Limited is in the
following
terms:-
"Dear
Sir
In the course
of
certain
proceedings
currently
in train, to
which
I am a party, I have been
directed
by
the
Court
to
write
this letter to you and I should be grateful
for
a reply as
soon as reasonably possible.
I need to know whether
I or
either of my
children
E or
D
are, have been or are likely to become
directly
or
indirectly beneficiaries or potential objects of an exercise of
discretion
of
any trust (
whether
fixed
or
discretionary)
of
which
you are trustee, as I am
obliged to
disclose
such information to the other party and to the
court,
if
that be the
case.
If there is an
affirmative answer to this question, I
would
be grateful if you
would
provide
me
with
information as to the nature of my interest and, if you are able to
do
so, a realistic assessment of any benefit I or my
children
have received in the
last
five
years or are likely to receive in the
future.
In order to assess whether
I or
my
children
may have a prospect of
future
benefit, it is likely to be helpful
to look at not only any trust in
which
I have a
direct
interest but also any
trust in
which
my mother N or my brother P have an interest. Nonetheless it is emphasised that the
Court
is not
concerned
with
information that is private to my mother and
brother. The guidance is given
for
the purposes of a proper
focus
on trusts
from
which
I or my
children
might
benefit.
I am very grateful for
your
help. If any
costs
are incurred in
responding to this letter, please let me have a
fee
note of them so that it
receives attention.
Yours faithfully."
24. The petitioner is directed
to send a similar
letter to Bedell Trustees Limited, marked
for
the attention of Advocate Anthony
Dessain.
The only
difference
is
that the letter needs appropriate amendment to ensure that there is specific
reference to the K Trust insofar as the question is raised as to the benefits
the petitioner has received in the last
five
years or is likely to receive in
the
future.
If there is a
disagreement
about the
final
format
of such letter, there is liberty to
apply.
25. Finally,
I
come
to the requested
direction
that
no
further
disclosure,
other than on-going
disclosure,
is to be requested
without
leave of the
Court.
I stand
that over
for
future
consideration
after the outcome of the letters to the
three
financial
services institutions is known.