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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Quan v Bray & Ors [2017] EWCA Civ 405 (16 June 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/405.html Cite as: [2017] EWCA Civ 405, [2018] 1 FLR 1149, [2017] 3 FCR 648 |
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ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION (RCJ)
Sir Paul Coleridge sitting as a High Court Judge
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DAVID RICHARDS
and
LORD JUSTICE MOYLAN
____________________
Li Quan | Appellant |
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| - and - |
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Stuart BrayMaitland (Mauritius) LtdChinese Tigers South African Trust Save China's Tigers Ralph Edmond BrayConservation Finance LimitedThe Attorney General |
1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent |
____________________
Vardags
Solicitors) for the Appellant
The First Respondent appeared in person
The Second Respondent did not appear and was not represented
The Third Respondent did not appear and was not represented
The Fourth Respondent appeared in person
The Fifth Respondent did not appear and was not represented
Stewart Leech QC and Sarah Phipps (instructed by Lee and Thompson LLP) for the
6th Respondent
Ruth Hughes (instructed by The Government Legal Department) for the 7th Respondent
Hearing dates : 31 January to 2 February 2017
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lady Justice King :
Introduction
Bray
("the husband") or Li
Quan
("the wife"). In the light of his findings of fact the Judge further declared that CTSAT is not a post-nuptial settlement.
virtue
either of
variation
of a nuptial settlement (if one were held to exist), or as a 'resource' available to the parties and capable of being utilised to satisfy the wife's claims within her financial remedy proceedings.
Representation
view
that the involvement of SCT UK in the proceedings falls within the definition of 'charity proceedings' under s.115 of the Charities Act 2011 and that the Attorney General is a necessary party to all charity proceedings. The Attorney General was accordingly joined as party to the appeal and has been represented by Miss Ruth Hughes.
Background
Vartys").
The
Vartys
ran a successful commercial ecotourism
venture
in South Africa. By the end of 2001 the husband and wife had travelled to China with the
Vartys
to investigate possible tiger reserves to be based on the
Vartys'
model. Land was needed in South Africa for the project and agreement was reached that the
Vartys
would acquire land for the proposed reserve with funds provided by the husband. In January 2002 the husband provided £2.5m to the
Vartys
and 32,000 hectares of land was bought on behalf of the husband. The land was then leased to the Chinese Tiger Project for 99 years at a pepper corn rent and upon terms that prohibit its use for any other purpose than the Chinese Tiger Project. The tigers would be bred on the South African reserve before eventually being 'rewilded' to the new reserves in China. This land, known as the Laohu
Valley
Reserve (LVR), is now held by CTSAT the husband having, pursuant to an undertaking given in these proceedings transferred ownership of the land to CTSAT.
Vartys
might have used funds provided by the husband in
violation
of their mandate. Notwithstanding these suspicions, matters progressed steadily towards a planned date in October 2002 for the signing of what was to be known as the Framework Agreement, which would provide the structure for the Chinese Tiger Project. The only parties to the Framework Agreement were to be "the China party" (that is to say the Chinese government) and "the South Africa party" (the
Vartys).
Part of the Framework Agreement was to govern the rehabilitation of Chinese tigers bred in South Africa to tiger reserves in China. Within weeks of the anticipated date for signing the Framework Agreement, the
Vartys
sought to renegotiate the terms, in particular by seeking to abandon their commitment to reserves in China, a critical but expensive element of the project. It looked as if the whole project would fail; it is common ground that the wife was "in despair" at the prospect of the collapse of the Chinese Tiger Project. Whether or not, as was the husband's case, she was "suicidal" is not to the point; what is to the point is that the husband was willing to step in to try and find another route by which the Framework Agreement, and therefore the Chinese Tiger Project, could be salvaged.
Vartys
in the scheme and would sign the Framework Agreement in their place. At this stage it was still envisaged that the
Vartys
would remain involved to the extent that they would lease their land to the newly formed trust, which was to be called the Chinese Tigers South African Trust (CTSAT).
"This new structure (the CTSAT) is actually better. Since the Chinese Tiger SA Trust is non-profit, it is easier to solicitate [sic] donations.
People in the West do not want to sponsor or give donations to a commercial company. . . People would have no problems giving money to the trust."
"Sorry this is so urgent . . . just when we were about to sign the tiger rehab agreement on 11 November with China. We had to quickly find a solution to the problems and decided to set up a trust - the sole beneficiary would be Save China's Tigers. We are still aiming to sign the agreement shortly, but the trust of Save China's Tigers will take over . . . the Chinese could also serve as protectors given that they do not want to make day to day decisions."
Vartys
suggested Mauritius as an alternative. On 1 November 2002 a standard trust deed was sent to both the husband and wife indicating that SCT UK, the charity set up by the wife, would be the settlor and sole beneficiary of the trust. It later became clear that under Mauritian law the settlor could not be the sole beneficiary and so the decision was reached that the husband would settle the required $10 allowing SCT UK still, as planned, to be the sole beneficiary of the new trust.
Vartys
had ceased to be involved in the project, the Chinese did not feel it was necessary for them to act as the Protector. The Chinese officials had, she said, confidence in the husband and wife and the charity, and were satisfied that they would be working for the benefit of the South China tigers.
"If upon the winding-up or dissolution of the Company there remains, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the Company, but shall be given or transferred to some other charitable institution or institutions having objects similar to the objects of the Company".
Vartys
had completely broken down. In early 2003 litigation commenced with the
Vartys.
Thereafter David Leibowitz (a member of the South African bar and trustee of CTSAT between 2003 and 2007) worked on the litigation on behalf of CTSAT for the best part of a decade. The Judge found that Mr Leibowitz was totally committed to the cause, working tirelessly either without payment or at a significant underpayment. Mr Leibowitz subsequently said in written evidence at trial that:
"[He] would never involve himself at his own expense, put [his] reputation at risk and sign agreements with the Chinese government if [he] had any inkling at any stage that CTSAT was a trust out of which the husband and wife were entitled to benefit in a personal capacity."
Varty
litigation had naturally required both the husband and wife to file affidavits and to give evidence. The evidence contained in those affidavits was entirely consistent with the account given by the husband at trial before the Judge and entirely inconsistent with that given by the wife. The wife's case at trial was that she was largely unaware of what was going on at the time CTSAT was set up. This was not borne out by contemporaneous documents, by the evidence of Mr Leibowitz or by the unequivocal findings of the South African Judge who found the husband and wife each to be witnesses of truth within that litigation. The wife's evidence had been to the effect that CTSAT had been set up urgently to step into the
Vartys'
shoes and with a single charitable purpose. Ultimately, the
Vartys
litigation went to arbitration and an award was made against them on 30 October 2008.
Varty
litigation in its favour, the Chinese Tiger Project had been seriously damaged by what had occurred. The
Vartys
had secretly negotiated a deal with Discovery Channel to make a film in relation to their own two Bengal tigers. This film was so similar to an intended film about the re-wilding of the South China tigers that it rendered the latter no longer
viable
as a commercial proposition. It had been anticipated that the documentary about the Chinese Tiger Project would have been a major source of revenue, enabling CTSAT substantially to fulfil its obligations under the Framework Agreement. It therefore became all the more necessary to find alternative methods of funding in addition to that which the husband could invest in the project.
varied
considerably but were often substantial. The wife complained about the paucity of evidence in respect of this company. In oral submissions Mr Todd submitted that the fees paid were large. Mr Todd said that he could not say that the husband was being overpaid for the consultancy work he was undertaking for CTSAT, he could only say that it was a great deal if not an excessive amount. Mr Todd accepted that this did not make CTSAT a 'resource' unless the husband was simply dipping into CTSAT
via
JAS.
Quan
Trust established on 27 August 2003, a trust of which the wife was the sole beneficiary. The husband lent the trust some £4.5 million of his own money and from there it worked its way through a series of transactions to fund the Chinese Tiger Project. The wife was, and no doubt is, suspicious of this transaction. The husband's case was that had he simply lent the money directly to CFI it might have been regarded by the US Internal Revenue Service (IRS) as having given him an equity stake in the business, and therefore become subject to the onerous regulatory regime of the IRS.
value
of the SARs in due course became the central feature in litigation between G Bank and SCT UK, as owner of the SARs. The husband had wished to give the SARs to SCT UK by making a declaration that he held them on trust for the charity. In order to do this the husband was potentially required to seek the consent of G Bank. Objections raised without foundation by the bank however meant that there was a significant delay in the transfer being effected. As a consequence, the charity was unable to capitalise on a substantial fiscal opportunity which would have been afforded to them by the fact that there were, at the relevant time, takeover rumours in relation to G Bank which significantly enhanced the
value
of the SARs. By the time the husband made a declaration of trust on 23 March 2005 (following confirmation that the consent of G Bank was not after all necessary) the
value
of the SARs had declined substantially.The money raised from the subsequent disposal of the SARs was used to further the Chinese Tiger Project.
i) Fund grants for research of endangered and
vulnerable
wild cats around the world.
ii) Create commercially
viable
tiger reserves in China.
iii) Establish a charitable foundation for tigers in China.
"It is LiQuan's
position that although she may have told her husband that she was resigning from the charity in the course of a quarrel (and on another occasion, threatened to resign) she has not resigned and therefore she continues to be a trustee of SCT.
Li's primary concern is to ensure that SCT (i.e. the English charity) is not closed and is well funded…The work of the charity is now achieving international acclaim and this, in turn, means there is a real prospect for attracting major donations from individual and corporate donors…
Concerns in relation to the grant of £19.7 million made to Save China's Tigers Ltd in Hong Kong.
Li's concerns here relate to:
- Monitoring the application of the donation against the purposes set out in the resolution of proving the grant;
- And establishing that SCT complied with HMRC's requirements for donations to non-UK charities."
variation
of a post-nuptial settlement (i.e. of CTSAT) was sought by the wife at that time. A couple of days later on 24 August 2012 Farrer & Co wrote to the husband on behalf of the wife in response to a request by him that she give confidentiality undertakings. The letter said:
"Given the passage of events and in particular MsQuan's
removal as trustee at SCT UK and your failure to address her concerns about the application of the donation of £19.75 million made to SCT UK to Save China's Tigers Limited in Hong Kong she cannot see how it would be in her interest to give the undertakings you have requested."
"W's objective in these proceedings is either to establish and ensure that the funds said by H to be donated to charitable purposes are in fact going to be used for those purposes and only those purposes, or if (as she now believes or fears or suspects) the charitable purposes are being used as a cover for H to avoid (i) taxation on the "donation" and (ii) what would otherwise be his obligations to her consequent upon the breakdown of their marriage, then she would like to receive a fair share of the assets which are not truly destined for charitable purposes, so as to provide for her own needs at a level commensurate with what the parties actually enjoyed during their marriage."
Mr Marks accepted there was a philanthropic element. The question, he said to the judge, was "is that all there is?"
Vardags,
her current solicitors. On 30 November 2012 they wrote on instructions from the wife to the husband:
"I am only going to reiterate that Li's objective in these proceedings does not include any attack on assets which belong to any of the charities, and on the contrary she is intending to establish which assets have been donated and to ensure that they cannot subsequently be retrieved or diverted away from the charitable objectives… Mr Marks QC's note for the First Appointment…which makes it abundantly clear what Li's concerns are, and the purpose of almost all the questions in the questionnaire is to give you the opportunity to allay those concerns…there is no conflict of interest between Li's role in the charities and her objective in these proceedings – indeed they are wholly aligned."
vary
CTSAT as a post-nuptial settlement.
CTSAT
very
wide. As set out above a Protector is required under Mauritian law. The appointed Protector has wide ranging powers, including the power to remove or appoint trustees, determine the applicable law, withhold consent from specified actions of the trustees and request information and accounts from the trustees. The husband remained Protector until 7 May 2013 when Rumit Shah, David Leibowitz and Heinrich Funck, the general manager of AVR, took over. On 7 November 2013 all three of the Protectors gave notice of resignation to take effect on 7 December 2013 and, at the husband's request, his father Ralph
Bray
became and remains Protector, the husband's case being that this was to enable the former Protectors to give evidence at the trial.
"(i) The conservation and protection for the public benefit of tigers and other endangered species of big cat in China thereby preserving them from extinction."
The balance of the objects prescribe for the manner in which the objects are to be furthered. Broad provision is made to 'establish, support or aid' 'trusts, associations or institutions' in any way connected with or furthering the objects of the charity.
varied
by the Protectors so as specifically to exclude the husband and all his family relations from becoming beneficiaries under the trust. On 7 November 2013 (prior to their resignation taking effect) the Protectors and Maitland entered into a, now irrevocable, Deed of Declaration excluding the husband and wife as beneficiaries. The husband's case was that he had never been a beneficiary and the exclusions were intended to provide comfort to the wife and the court by reassuring them that he had no intention ever to seek to become a beneficiary. The
variation
of November 2013 was made in an effort to reinforce the position. The wife's case was that this was merely a device facilitated by the husband's friends to prevent her from having access to the funds held by the trust.
via
SCT UK' he did not 'find that the trustees would be likely or be expected to be guided by his wishes' (para 70(a) and (c)).
The Proceedings
i) The circumstances under which the China Tiger trusts were set up;
ii) The purpose of those trusts;
iii) Whether those trusts were nuptial settlements;
iv) The availability of funds within those trusts to the parties;
v)
Whether the funds within those trusts could only be utilised for tiger conservation.
view
as to how the central question, namely the purpose of the CTSAT, could best be addressed in the following way:
"It is simply not necessary, not to enable me to make a finding that the trust is or is not a post-nuptial settlement or any of the subsidiary questions. I suspect most of it will turn on a few documents and on your evidence and the evidence of your wife. I think some of these other witnesses will add some flesh to the bones and I would like to hear from them."
In respect of the lengthy supplementary questionnaire the Judge said that, instead of replies to the questions, what was required was:
". . . further narrative statements to deal with the points which are, one way or another, contained within those questionnaires will simply shorten things next time and as I say, key documents are what we are looking for not every bank statement."
". . . dealing with his financial resources, the provenance of funds which went into thevarious
tiger conservation trusts, his relationship with those trusts, his case on the accessibility by the parties of the tiger conservation funds now and on his case where those funds within those trusts are (e.g. which companies or which trusts retained particular wealth whether this be by way of cash holding options, proportional shares or otherwise)."
view
of both the Judge and counsel, including Mr Todd on behalf of the wife, that the case turned on the evidence of the husband:
"Sir Paul Coleridge: So really it comes down to myview
about Mr
Bray
and his evidence, really, because if the others are stooges, they would say that would they not, would be your submission?
Mr Todd: Absolutely, quite."
"Sir Paul Coleridge: I cannot bind myself as to what attitude that I would take if you do not call them or whatview
I will take of their untested evidence but, as I say, it seems to me, given the way that Mr Todd puts his case, it really stands and falls with Mr
Bray.
Mr Todd: It does."
view,
that the credibility of the husband and wife was critical to the outcome of the case, was again made abundantly clear by the Judge at an early stage in his judgment.
"24. The core of the wife's case is that the documents whatever they may say or seem to say on their face do not tell the whole story. Thus her case must stand or fall on the oral evidence. In other words the more the documents do not support the wife's case the more Mr Todd QC, on her behalf, asserts, and is driven to assert, that that is inevitable because the husband with his expertise, has set up and organised the structures precisely with the intention of making actions untraceable and the structures impenetrable. The absence of documents is part of his strategy of leaving no paper trail."
"Once again my function is to "examine the true nature of the arrangement" embodied in CTSAT not forgetting that the relevant transaction in this case is embodied in a "formal written document."
Varty
litigation together provided powerful support for the husband's case. The wife therefore had to satisfy the Judge that (contrary to what appeared to be her position as stated on her behalf in the early stages of the litigation) the husband had had, throughout, an ulterior motive in setting up CTSAT, namely to preserve his own assets and in particular, it was alleged by the wife, to protect himself from the US tax authorities (the IRS) until such time as he was able to renounce his US citizenship. The Judge was, putting it crudely, clearly of the
view
that the case became "his word against hers", a
view
that seems to have been accepted by both the husband and wife at trial.
very
poor
view
of the wife. He held:
i) That the wife had been beside herself with grief and anger at the way that she had been, as she saw it, unjustifiably removed from SCT UK. In support of this conclusion he referred to a number of angry and intemperate emails sent by the wife.
ii) That initially her preoccupation was to ensure the continuance of the work with the tigers and that the suggestion that CTSAT had or might have had other purposes "crept in later" and the application to
vary
CTSAT later still.
iii) The Judge did not accept the attempts of the wife to distance herself from her evidence in the
Varty
litigation against the backdrop of the finding by Mr Justice Kriegler, the South African Judge, who had found:
"With regard to the filming claim, MsQuan
played a more prominent role than her husband…Ms
Quan
had been actively and intimately engaged in the planning and development of the
various
facets of the envisaged financing of the scheme…in this witness box she displayed the almost missionary determination that had characterised her pursuit of her dream…it is also claimed that however partisan she might be, she is truthful."
The Judge noted that many hours were spent by the wife (with professional help) in compiling her affidavit in theVarty
litigation.
iv) That the wife's evidence was "wildly inaccurate" in places particularly in relation to their standard of living. The Judge concluded:
"36. …I am driven to find, overall, that she is an unreliable witness upon whom the court cannot rely. This is specially so when deciding where the truth lies about the underlying purpose of the CTSAT and any discussions which took place at the time of its creation.
37. The wife is avery
intelligent person but she has become blinded by her desire for revenge and this has led her to fabricate where she thinks it will assist her case."
Varty
litigation)". The Judge regarded the husband's grasp of the history of the case and knowledge of the documents as being 'extraordinary and encyclopaedic' and in particular that:
"He was in the witness box for four days, three of which consisted of rigorous and searching cross examination by Mr Todd QC. It could not have been more thorough. Over and over again the husband's knowledge of the detail of the transactions leading to the establishment of CTSAT and other structures supporting the Tiger Project was tested and found to be sound. His evidence was at every stage clear, detailed and consistent (both internally and by contrast with the evidence in theVarty
litigation). He took great pains over the answers and made minor corrections as appropriate. He also agreed with the wife wherever possible."
His ultimate finding in relation to the husband was:
"39. At the end of the day his passion for the Tiger Project was as evident as it was the wife and the longer he gave evidence the more convinced I became that he was telling the truth and doing his best to assist the court in arriving at the right answer. In contrast with the wife's evidence, I found his evidence bore all conventional hallmarks of honesty and accuracy."
The Judge concluded:
"42. Accordingly I am driven to the inevitable conclusion that where he and the wife differ in their recall and evidence especially over whether there were discussions at the time of the creation of CTSAT to the effect that was for their benefit as well as the tigers' his recollection is to be preferred and relied on."
"65. I have read and heard a mass of evidence about the thinking behind the establishment of CTSAT, the means by which, and reasons why it was created in the form it was and why it was formed in Mauritius. I have read (and re-read) and heard lengthy and detailed submissions too. All arguments have been canvassed and from every angle."
view,
to the same effect. The Judge posed three questions of law (para. 66) as a route to determining whether CTSAT was capable of being a postnuptial settlement. He then went on to identify (para. 67) three factual questions which underlie the three legal questions:
a) "Is the husband ultimately capable, one way or another, of procuring changes to CTSAT to enable the parties to benefit from it?
b) Is there evidence to demonstrate past, present or future benefit to one or other of the parties from CTSAT?
c) In the end what was or were the intention or intentions underlying the creation of CTSAT……."
a) As already recorded at para. 52 above, the husband could procure changes to the beneficiaries of CTSAT but the trustees would be unlikely to agree;
b) That "there was no evidence as to past present or future benefit to the parties from CTSAT";
c) "At the time CTSAT was established it was with only one intention and it had only one sole purpose, namely to further the Tiger Projectvia
SCT UK". The Judge found that there were no conversations at the outset, or subsequently, which took place and established an intention to benefit the husband and wife, or either of them, and there was, he concluded, no ulterior/secondary purpose as the wife now sought to suggest. That case is, he said:
"….in forensic parlance, a late invention by the wife. CTSAT was always, and is, only for the Chinese tigers. Accordingly it is not a post-nuptial settlement which can be directly invaded by court order."
view
that whilst it does not apply in the present case, a settlement which is non-nuptial at its inception can itself later become "nuptualised" if there was, in fact, a flow of benefit to the parties during the marriage from the trust. That conclusion is in part the subject of a Respondent's notice filed on behalf of SCT UK. For the purposes of this appeal, given the Judge's overall findings of fact, it is not necessary to consider whether as a matter of law a settlement, non-nuptial at inception, can subsequently become 'nuptualised'.
v
Thomas [1995] 2 FLR 668 line of cases, the court could assume that the trustees would respond favourably to a request by the husband for funds to be released to him from CTSAT in order to satisfy any order the court might make in her favour. The Judge held that CTSAT could not be regarded, in the section 25 Matrimonial Causes Act 1973 sense, as a 'resource'. This conclusion might be thought to have been inevitable when considered against the backdrop of the findings the Judge made about CTSAT's original and ongoing purpose and that the parties had never been beneficiaries. In Thomas, Glidewell LJ, in articulating the principles to be applied in such applications, said at 677H-678G:
"If on the balance of probability the evidence shows that, if trustees exercised their discretion to release more capital or income to a husband, the interests of the trust or of other beneficiaries would not be appreciably damaged, the court can assume that a genuine request for the exercise of such discretion would probably be met by a favourable response. In that situation if the court decides that it would be reasonable for a husband to seek to persuade trustees to release more capital or income to him to enable him to make proper financial provision for his children and his former wife, the court would not in so deciding be putting improper pressure on the trustees."
The Judge held that the assets of CTSAT are for the Chinese Tiger Project and that it would be wrong to make a lump sum order against the husband in the hope and expectation that funds would be provided by CTSAT in order to satisfy the same.
"74. As I accept theveracity
of the husband's evidence and in order to provide a fuller narrative of the events surrounding the creation and funding of the tiger project I have annexed an abbreviated
version
of the husband's December 2013 statement to this judgment. This will enable another court to understand the full context of my findings should it be necessary."
The Barrell Application
v
Emery Reimbold & Strick (Practice Note) [2002] EWCA Civ 605; [2002] 1WLR 2409.
view
was that they amounted to either "a reiteration of points or evidence previously made, or reliance on new points and other evidence". The charity's (SCT UK) response, he said, provided a more or less "point by point repudiation of the wife's further note and in so doing similarly reiterated many of the points and much of the evidence previously made or provided new justifications for previous arguments".
"The findings were reached, I remind myself, aftervery
careful consideration of the evidence and arguments before, during and after the time when the hearings took place in December 2013 and June and July 2014. Indeed, on the contrary, I am fortified in my findings and conclusions by the consideration of the further notes".
Finally he observed that:
"to have descended into the kind of detail which the wife now seeks would hugely increase the length of this judgment on these preliminary issues for no useful purpose".
v
Ferensby [2003] EWCA Civ 1820 May LJ said in relation to applications to reconsider a judgment:
"Once a judgment has been handed down or given, there are obvious reasons why the court should hesitate long and hard before making a material alteration to it. These reasons have been rehearsed in the cases to which I have referred and I need not elaborate them further. The cases also acknowledge that there mayvery
occasionally be circumstances in which a Judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive summary rejection in most cases. It will only
very
rarely be appropriate for parties to attempt to do so. This necessarily means that the court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case."
"44. Furthermore, if a Judge were entitled to change his mind, a party would presumably be entitled to invite him to do so. No doubt most Judges would do their best to have no truck with the invitation. But could the party be prevented from pressing for the exercise of the jurisdiction on the basis that, in his first judgment, the Judge had failed to weigh certain evidence sufficiently or at all? In effect the Judge would be invited to hear an appeal against himself. There is a distinction between an appeal and avariation
for cause. This is the principle underlying the basic rule that an order is final once sealed.
45. The point does not arise in this case and it was not fully developed in the arguments before us. The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisionalview
upon it. In our
view
the preferable solution would be to avoid the situation arising in the first place."
view.
I would however
venture
to suggest that if (following full argument) it is held that a party may invoke the Barrell jurisdiction on the basis that the Judge has failed to weigh certain evidence sufficiently or at all, it is nevertheless the case that such an application will only rarely be allowed and should not to be regarded as being routinely available to a disappointed party.
Costs and Case Management
vain.
The original trial was listed for 10 days. The Judge did his best to focus the minds of the parties. Mr Todd himself accepted that the issues with which the Judge was concerned turned substantially on the oral evidence of the parties. The case ultimately lasted for 25 days with 33 lever arch files in the bundle. The judgment, as already noted, was met with a Barrell application accompanied by many pages of closely typed submissions.
v
Marshall application to adduce fresh evidence. The application was refused.
The Law
v
Piglowski [1999] 1 WLR 1360 and ending at the Supreme Court decision in DB
v
Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 which was handed down on the second day of this appeal. (DB
v
Chief Constable was not cited in argument. However, given that it merely underlines what is accepted by the parties to be the existing jurisprudence, I have not felt it necessary to invite additional submissions in relation to the judgments in the case).
v
Piglowski at 1372:
"…….First, the appellate court must bear in mind the advantage which the first instance Judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the Judge's evaluation of those facts. If I may quote what I said in Biogen Inc.v.
Medeva Plc.[1997] R.P.C. 1, 45:
"The need for appellate caution in reversing the trial Judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous Judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the Judge's overall evaluation."
The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the Judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district Judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the Judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the Judge by a narrow textual analysis which enables them to claim that he misdirected himself.
"53 As Baroness Hale JSC and Lord Kerr of Tonaghmore JSC explain in paras 200 and 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial Judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial Judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable Judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it isvery
hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first)."
v
Chobani UK Ltd [2014] EWCA Civ 5:
"[114] Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial Judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Incv
Medeva plc [1977] RPC1; Piglowska
v
Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd
v
United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911 and most recently and comprehensively McGraddie
v
McGraddie [2013] UKSC 58 [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include
i) The expertise of a trial Judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial Judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial Judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v)
The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi)
Thus even if it were possible to duplicate the role of the trial Judge, it cannot in practice be done".
v
Thames Water Utilities Ltd [2007] Bus LR 726; [2007] EWCA Civ 3. At [70] he stated:
"In a complex factual case such as the present it will often be comparatively easy for an appellant to allege that a judgment is imperfectly or inadequately reasoned on one aspect or another and even to persuade this court, on an unopposed permission application, that that is arguably so. Appellants must, however be aware that there is no obligation on a Judge to give a particular response to every submission made (judgments in this country are quite long enough already) and that, unless it becomes apparent in the course of the appeal that a serious injustice has been done, appeals on the ground of inadequacy of reasons in complex factual disputes are likely to fail."
very
recent observations in DB
v
Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 must be kept in mind:
"Review by an appellate court of findings at first instance
78. On several occasions in the recent past this court has had to address the issue of the proper approach to be taken by an appellate court to its review of findings made by a Judge at first instance. For the purposes of this case, perhaps the most useful distillation of the applicable principles is to be found in the judgment of Lord Reed in the case of McGraddiev
McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. In para 1 of his judgment he referred to what he described as "what may be the most frequently cited of all judicial dicta in the Scottish courts" - the speech of Lord Thankerton in Thomas
v
Thomas [1947] AC 484 which sets out the circumstances in which an appeal court should refrain from or consider itself enabled to depart from the trial Judge's conclusions. Lord Reed's discourse on this subject continued with references to decisions of Lord Shaw of Dunfermline in Clarke
v
Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, [1919] UKHL 303, 36-37, where he said that an appellate court should intervene only it is satisfied that the Judge was "plainly wrong"; that of Lord Greene MR in Yuill
v
Yuill [1945] P 15, 19, and that of Lord Hope of Craighead in Thomson
v
Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 17 where he stated that:
"It can, of course, only be on the rarest occasions and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial Judge had formed a wrong opinion."
79. Lord Reed then addressed foreign jurisprudence on the topic in paras 3 and 4 of his judgment as follows:
"3. The reasons justifying that approach are not limited to the fact, emphasised in Clarke's case and Thomasv
Thomas, that the trial Judge is in a privileged position to assess the credibility of witnesses' evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson
v
City of Bessemer (1985) 470 US 564, 574-575:
'The rationale for deference to the original finder of fact is not limited to the superiority of the trial Judge's position to make determinations of credibility. The trial Judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial Judge's efforts in the court of appeals wouldvery
likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial Judge that their account of the facts is the correct one; requiring them to persuade three more Judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be "the 'main event' ... rather than a 'tryout on the road.'" ... For these reasons, review of factual findings under the clearly erroneous standard - with its deference to the trier of fact - is the rule, not the exception.'
Similar observations were made by Lord Wilson JSC in In re B (A Child) [2013] 1 WLR 1911, para 53.
4. Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housenv
Nikolaisen [2002] 2 SCR 235, para 14:
'The trial Judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial Judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whoseview
of the case is much more limited and narrow, often being shaped and distorted by the
various
orders or rulings being challenged.'"
80. The statements in all of these cases and, of course, in McGraddie itself were made in relation to trials where oral evidence had been given. On oneview,
the situation is different where factual findings and the inferences drawn from them are made on the basis of affidavit evidence and consideration of contemporaneous documents. But the
vivid
expression in Anderson that the first instance trial should be seen as the "main event" rather than a "tryout on the road" has resonance even for a case which does not involve oral testimony. A first instance judgment provides a template on which criticisms are focused and the assessment of factual issues by an appellate court can be a
very
different exercise in the appeal setting than during the trial. Impressions formed by a Judge approaching the matter for the first time may be more reliable than a concentration on the inevitable attack on the
validity
of conclusions that he or she has reached which is a feature of an appeal founded on a challenge to factual findings. The case for reticence on the part of the appellate court, while perhaps not as strong in a case where no oral evidence has been given, remains cogent.
"'The trial Judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial Judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whoseview
of the case is much more limited and narrow, often being shaped and distorted by the
various
orders or rulings being challenged.'"
The Appeal
"[70(c)] At the time CTSAT was established it was with only one intention and it had only one, sole purpose,viz.
to further the Tiger Project
via
SCT UK. The husband's evidence (supported by copious documents, the other witnesses and the parties' subsequent exhaustive and exhausting work and actions) establish this to my entire satisfaction. There were no conversations at the outset or subsequently which took place which establish an intention to benefit them or either of them and there was no ulterior/secondary purpose as the wife now seeks to suggest. That case is, in forensic parlance, a late invention by the wife. CTSAT was always and is, only for the Chinese Tigers. Accordingly it is not a PNS which can be directly invaded by the court."
variously
described as 'succinct' or, more pejoratively, as 'sparse'. Although done in order to "provide a fuller narrative of the events surrounding the creation and funding of the tiger project" it was ultimately neither helpful nor appropriate for the Judge to have attached the 'Annex' to his judgment containing excerpts from the husband's long narrative statement, which statement included reference to a number of issues which were in dispute between the parties.
view
stand or fall on the findings in the judgment proper. That which is set out in the Annex cannot properly be regarded as 'findings' informing this or any other court, being merely 'context' against which to consider the judgment itself.
i) The Judge failed to give adequate reasons for his findings – a reasons challenge;
ii) The failure to do so was reflected in the fact that he analysed inadequately certain critical topics which should have informed his central findings;
iii) Had he properly conducted this exercise he would have found that CTSAT was at least in part for the benefit of the parties from inception and therefore a post-nuptial settlement;
iv) That under the Thomas approach the assets of the trust were a resource which could be called upon by the husband.
i) The Judge's failure specifically to deal with the so called Reisman emails. Connected with this is whether CTSAT was set up as some form of tax shelter for the husband, who was wishing to expatriate from the United States and who, it was contended, in order to avoid punitive exit penalties and substantial investigation by the IRS, sheltered his wealth in CTSAT whilst intending that ultimately he and the wife would benefit;
ii) The Judge's failure to deal with the "Smoking Gun" email;
iii) That certain key witnesses, in particular Mr Thomas and Mr Shah, 'declined to submit to cross-examination' and that the Judge wrongfully rejected the evidence of a Mr Stephen Cross;
iv) The acceptance by the Judge of the conclusions found in a report prepared by BDO on behalf of the husband;
v)
The Judge's failure to deal with the fact that the husband had considered the sale of the South African land.
"78. In deference to the industry of all Counsel I re-read and re-considered the draft judgment in the light of the three notes and have reached these further conclusions."
i) The use of the Barrell jurisdiction in these circumstances and in the fashion employed by the wife is quite simply wrong and not the purpose of that process. That process is designed to allow the court to look again at particular findings or conclusions where some particular fact or evidence has obviously been omitted, overlooked or has changed since the hearing. It does not afford a party the right to invite the court to start again from scratch and "have another go" at finding for them based on an entire re-arguing of the case. If that were a permissible approach it would result in litigation without end as one Barrell application would inevitably follow upon another and then another. 99 pages of further submissions says it all.
ii) The implications of the potential findings to all the main parties are, and always have been, patently obvious to all and have caused me to approach the husband's case in particular, with considerable caution. They have been in the forefront of my mind since the first occasion when the case came before me.
iii) However, there is nothing that I have read in the wife's latest supporting note which causes me to revisit any of the findings or conclusions (legal or factual) which I made or amplify any of my reasoning. The findings were reached, I remind myself, aftervery
careful consideration of the evidence and arguments before, during and after the time when the hearings took place in December 2013 and June and July 2014. Indeed, on the contrary, I am fortified in my findings and conclusions by consideration of the further notes.
iv) To have descended into the kind of detail which the wife now seeks would hugely increase the length of this judgment on these preliminary issues for no useful purpose."
(i) Tax Shelter and the Reisman emails
various
transactions were motivated by a desire to avoid US tax on the part of the husband. Not only did the Judge find Mr Cross to be a wholly unreliable witness, but he is not, in any event, a US tax expert, did not file a witness statement and could produce no direct evidence of the husband's motivation.
Vartys
and China and there was no anticipation or expectation that CTSAT would be set up. Mr Todd suggests as an alternative that it may be in relation to the Li
Quan
Trust, about which, he submits, the Judge should have been suspicious and have regarded as part of the husband's tax planning; but that trust was not set up for a further 12 months and it was, in any event, the husband's case that the Li
Quan
Trust did indeed involve tax planning and was used as a tax efficient route to transfer monies into CTSAT for the benefit of the Tiger Project.
very
opposite is true. Mr Leech drew the attention of the court to the balance of the relevant emails. Reading to the end of the trail reveals the husband writing on 23 July 2010:
"…I understood that his (Sandy's) principal job is to advise Family Businesses. In order to do that well he has to understand the whole Business. My family consists of Li and me. Our family business is the Chinese Tiger project. That Family Business (i.e. the charity's Tiger Project) includes communication, financing, sponsorship, tiger management, reserve management, political lobbying, scientific research among many other things. "
view,
not only undermines Mr Todd's submission but, in turn, must inform the interpretation of a further email heavily relied upon by Mr Todd and referred to in these proceedings as the "Smoking Gun" email dated 31 October 2011.
(ii) The "Smoking Gun" email
"In the worst scenario that something happens to you, I would need a pittance to carry me for some time to be able to stand on my feet again. Further, there is the bigger issue of the tigers that we need to allow for sometime before they can be returned to China completely in that event."
"The shares in Royal Mint Studios, with the associated long-term lease of 66D Royal Mint LaohuValue
Reserve, the Dutch Econcern debt, the Chinese forestry plantation, and the cash left from the big donation to SCT are all held by CFI. CFI is legally held by CTSAT for the benefit of the tiger project established by the Framework Agreement signed by SCT UK, CTSAT and NWRDC in November 2002. The only trustees of CTSAT are you and Inter-Ocean Management in Mauritius (http://www.inter-oceanmgt.com/en/). Any legal documents entered into by CTSAT require the signature of all the trustees (that includes you). In the event that everything is wound-up, whatever remains ends up in the Li
Quan
Trust. I do not get anything."
via
the Li
Quan
Trust upon the winding up of CTSAT.
Quan
Trust at the conclusion of the email was a simple error on his part. Mr Harrison (who then represented SCT UK) submitted that this was obviously correct; in the event that CTSAT was wound up, everything would inevitably go to SCT UK as the sole beneficiary of CTSAT, and thereafter, in accordance with the terms of the CTSAT trust document, there would be no funds to go to the Li
Quan
Trust (or anywhere else). Further, Mr Harrison had argued, when the email was read as a whole it was quite clear that the husband was seeking to emphasise that he had no interest whatsoever in any of the assets within CTSAT.
view
that the wife, in her email, was asking about two things (i) what was going to happen to her and (ii) what was going to happen to the tigers. The Judge said that he understood that Mr Todd was inevitably going to invite him to attach considerable significance to the emails but expressed the
view
that it was necessary to be careful about "what they really say". The Judge, Mr Leech reminded the court, clearly had the emails in mind when giving judgment and referred in terms to the wife's submission that the court should look at the "whole of the evidential picture, especially the emails".
Quan
Trust in the email. Such a finding is consistent with the husband's own emphasis in the email that he himself would not be entitled to anything and also with the fact that SCT UK was the sole beneficiary of the trust. It is unfortunate that the judge did not specifically refer to the 'Smoking Gun' email but Mr Todd was right in conceding that failure to do so was not fatal to the judge's judgment.
(iii) Failure to call certain witnesses and the evidence of Mr Cross
i) Mr David Thomas: a chartered accountant who had been the charity's director from April 2000 alongside the husband and wife. Mr Thomas resigned as a director in 2012 but is now the charity's sole member and represents the charity as a litigant in person in the appeal.
ii) Rumit Shah, also a chartered accountant, who was the husband's junior partner in JAS and Protector of CTSAT from May to December 2013. In his statement Mr Shah dealt with his role in the businesses and explained that as a result of the wife's allegations that the trust had financed her personal expenses, he had caused an audit to be undertaken which did not substantiate her allegation.
video
link being arranged, Mr Lawrence Cole-Morgan also failed to attend for cross-examination.
Vardags
were informed in June 2014 that contact had been made with Mr Cole-Morgan and the remaining witnesses in order to keep them appraised of the timetable and the days upon which they may be required to give evidence. Arrangements were made to provide a
video
link where appropriate. In the event, as the transcript reveals, Mr Todd, in referring to Mr Thomas, (who had attended at court pursuant to a witness summons), said: "Mr Thomas actually attended court this morning under a witness summons but we physically told him, outside Court 35, that he could go as he had been released".
"…I am afraid your Lordship is going to have to take time for reading, but it may be that we have more time because of an approach tovarious
smaller witnesses. We are not pursuing our matter in respect of a witness summons. Obviously we cannot in respect of Lawrence Cole-Morgan anyway because he is out of the jurisdiction. We are not pursuing that in any event."
"[26] Mr Todd says he would have wanted to question other witnesses who produced statements on behalf of the husband and their absence is a telling lacuna in the respondents' cases. I have read the statements as I was expected to. I must and do of course take into account that some of the makers of the statements have not been available to be questioned. However their evidence is largely repetitious of other evidence produced by the husband himself and witnesses who were called and in the end I do not regard myself as disadvantaged by their non-attendance."
"[46] At the end of the day I am left with the strong impression that Mr Cross (who is unable to give direct evidence of the purpose behind transactions but can only guess or speculate based on his background in structured finance) has put the worst interpretation on events because of the sense of injustice he feels at the treatment of him by the husband. Against this background I have a distinct sense of unease in relation to his evidence and don't find it to be reliable or in the end that it takes the wife's case forward in any real way. In large part and in relation to the important issues in this case, it is speculation as opposed to recall of witnessed events."
v
Beechcroft LLP [2012] EWCA 1230 at para.72, in relation to the difficulty an appellant has in challenging a Judge's finding on credibility and her observation that "it is therefore rare for an appellate court to overturn a Judge's finding as to a person's credibility".
(iv) The BDO report
"[9] Save as already replied to and save for justified exception, the Respondent shall serve replies to the Petitioner's attached Schedule of Deficiencies and Further Questions (as amended by the court) by 4pm on 19 May 2014. For the avoidance of doubt, the Respondent shall not reply to the Petitioner's supplemental questions 65 (iii) or (iv) (in the original supplemental questionnaire) and thus shall not disclose or make available at all the invoices collated in connection with the audit of CTSAT nor any of the supporting documents provided to the audit firm instructed in this regard and he shall not reply to the Petitioner's supplemental question 47 (in the original supplemental questionnaire) seeking financial statements for JASFH."
"[7] The respondent shall have permission to disclose to Mr Mason of BDO the position statements filed in these proceedings and any extracts from the evidence concerning allegations that CTSAT assets have been used to fund the petitioner and the respondent's personal expenses, such extracts to be agreed in advance between solicitors for the Applicant and the Respondent."
A further direction was made for the wife to give notice as to whether she wished to cross-examine Mr Mason.
various
entities were consistent with the fiduciary duty to the Chinese Tigers Project and whether or not SCT UK expenditure (which had been identified as personal by the wife) was paid for with funds arising from CTSAT. Mr Mason's team was further told to consider, amongst other things, the parties' use of the property at Mint Street, use of credit and debit cards and the G Bank donation.
vast
majority of the conclusions and opinions I have given have been based on my own
verification
or my team's
verification".
He went on to refer to the fact that "we have got all the detail on hundreds of spreadsheets. I have summarised what I looked at in my report in broad terms, but the detail . . . is
voluminous".
"[51] . . . he carried out avery
comprehensive (and
very
expensive) quasi audit of CTSAT to deal with the allegation made by the wife that it had been a source of funds for the parties' private expenditure. He was unable to conclude that any of the expenses had been used to fund the husband or the wife.
[52] In the end the highest this point can be put is that it is possible that the parties have benefitted incidentally from staying in nice hotels when on charity business. Mr Mason found nothing untoward about that from an auditing point ofview."
(
v)
The South African Land
various
times between 2009 and 2012 actively considering selling all or part of the land in South Africa where the tigers were, and are, living.
Conclusions as to Topics (i)-(
v)
victim
of an injustice.
v
Al Sharif [2008] EWHC 2380:
". . . The task of the court was 'to examine the true character of the arrangement'
[238] . . . I would only add that, where the relevant transaction is embodied in a formal written document, the exercise involves the familiar process of construction of the document, giving the appropriate legal effect to the words as properly construed. Where the transaction, as in the present case, is not said to be embodied in any formal document, the process is essentially one of finding the facts, a process which can legitimately involve the process of drawing inferences with aview
to ascertaining what the terms of the transaction really are."
i) Here there are formal written documents identifying the object and purpose of CTSAT. Examination of the Trust Deed and the Articles of Association of SCT UK together with the Framework Agreement should be undertaken adopting the approach in Ben Hashem, namely by applying "the familiar process of construction of the document, giving the appropriate legal effect to the words as properly construed" doing so, she submitted, leads inexorably to the sole purpose of CTSAT being for the Chinese Tiger Project;
ii) The parties have never been beneficiaries (and are now irrevocably excluded). The Judge did not overlook the fact that the husband could, as a theoretical possibility, seek to procure changes or additions to the beneficiaries but did not find that the trustees would be likely to be guided by his wishes;
iii) For the 10 years after the Chinese Tiger Project was formalised through the Framework Agreement, the parties worked tirelessly on the project. As Miss Hughes
vividly
put it: "the Tiger Project consumed their lives and ultimately it consumed their marriage". There can, she reminds the court, be no denying the genuineness of the project, there are 22 South China Tigers in South Africa awaiting relocation to China once agreement can be reached as to the terms;
iv) The wife asked the court to look outside the formal trust and find that she and the husband were, and are, some form of invisible and informal beneficiaries;
v)
The wife's early approach to the litigation as recorded in the letters from Farrer and Co and the position statement of Mr Marks QC, together with the fact that her original Form E sought no
variation
of CTSAT as a nuptial settlement;
vi)
Control is not the end of it – the husband does not shy away from admitting he has
very
significant control but that does not mean he will benefit. The issue is access to resources, not control.
Discussion and Conclusion
v
Chabani which is an inevitable feature in an appeal of this nature. On a number of occasions Mr Todd took the court to evidence spread through the bundles which, he submitted supported the wife's case in relation to one of the topics upon which he relied. Mr Leech in response, took the court to further documents which, he argued, wholly or substantially undermined the submission made by Mr Todd (for example in relation to the 'Family Business' emails). This demonstrates not only the importance of the court being presented with as full and balanced a picture as possible of the evidence which was before the court of first instance, but also the necessity of the appellate court keeping in mind that the judge had (to borrow the words of Lewison LJ) "the whole sea of evidence available to him" and that it was upon that basis that Coleridge J had answered the questions posed.
i) Was the basis upon which the Judge reached his decision clear and could the parties understand the basis upon which he reached his decision?
ii) Were any or all of the topics raised by Mr Todd critical to the decision of the Judge or did they fall within, what might be termed, the Judge's margin of appreciation as to what issues were critical and what peripheral to the determination?
iii) If critical, on an analysis of the evidence available, had the Judge specifically made findings in respect of the issue/issues in question, would the outcome have been different?
value
of the land in South Africa) would thereafter become available for distribution to her in settlement of her claims. Mr Leech in response denied that this is the case. Even if the wife is right, and the 'rewilding' of the tigers from South Africa to China happens sooner rather than later bringing this project to an end, the assets of the trust will thereafter be used for other charitable purposes and will not be available for the benefit of the husband or wife.
i) In the light of the Judge's findings which have not, as a consequence of this appeal, been successfully challenged or undermined, CTSAT has never constituted and does not constitute a disposition which makes any form of continuing provision for either of the parties and the Judge was therefore right in concluding that CTSAT is not a post nuptial settlement;
ii) Given the Judge's findings the Judge made no error of law when concluding that CTSAT's assets are not a Thomas
v Thomas resource of the husband's; they are, as the Judge found, available for the Chinese Tiger Project and only for the Chinese Tiger Project.
Lord Justice David Richards :
Lord Justice Moylan :