England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2006

Mr Justice Coleridge

Introduction

1. In the recent House of Lords decision in the case of Miller/McFarlane [2006] UKHL 24 ("Miller/McFarlane") Baroness Hale considered that the size of the fortune in the Miller case (about £17.5m) put it in the category of "very big money case" (para 149). Adopting a similar categorisation for this case leads to a description, perhaps, of "huge money case". The overall assets even on the most pessimistic presentation exceed £100 million.
2. John Charman (the husband) and Beverley Charman (the wife) are only five months apart in age. They are both 53. They met at school as teenagers in 1969/70. In 1973 when they were about twenty they became engaged. By then they were both working. They married in 1976 when the husband was 23 and the wife 22. They made their first home with the wife's parents but within months moved into their own home. When they married, apart from their respective earning capacities, they had no assets of any particular value.
3. In November 2003, thirty years after they became engaged, the husband and wife separated. By the time the hearing of this application began in February 2006, by the wife's calculation, the husband had generated wealth to the tune of £150 - 160 million although by then it was by no means all in his name. So, for example, nearly £6m of that sum was in wife's name. £25m - £30m (or may be more) was held in a trust for the parties' children. The remaining £125 million or so was either in the husband's ownership (about £56m) or in a trust called the Dragon Holdings Trust (£68m) ("The Dragon Trust").
4. This application by the wife seeks capital provision bringing her fortune up to at least 45% of the total value of the assets owned by herself, the husband and the Dragon Trust. In round terms that is just about £53 million on top of her present £6m i.e. a total of £59m. The husband does not accept the wife's calculations and has offered to pay the wife a sum to bring her assets up to a total of £20m. So simple arithmetic shows that about £40m turns on the resolution of the various significant issues in the application. That, as I say, even by today's standards in this Division, makes the common but unattractive description, "big money case," something of an understatement so far as this application is concerned.
5. The wife's case is the now familiar one. She says this was a long marriage during which all the wealth (however now held) was generated from scratch. She played her full part as wife and mother (of two now adult sons). Fairness dictates that the fortune generated during their marriage (apart from the sum set aside in trust for the children) should be split 50-50. However, in deference to very recent authority she is prepared to accept a 45/55 % split to recognise what has come to be called the husband's special/stellar contribution to the generation of the wealth if, despite her submissions, the court were to hold that in this case that is a factor properly to be taken into account in the divisionary process.
6. The husband resists the application, defending his position on every front.
7. Firstly, he asserts that the assets owned by the Dragon Trust should be left entirely out of account because they were deposited there by him as part of his long-term plan and intention to found a "dynastic trust "for the benefit of as yet unborn members of the family (the children having been already provided for by their own trusts).
8. Secondly, whatever the recent authorities may or may not say, he does not accept a 50/50 starting point /cross check. He says the court should proceed from the position that the wife is entitled to nothing except as ordered by the court and the court should not be deflected from an incremental approach by talk of any particular percentage entitlement, let alone 50/50. Since Miller/McFarlane he also invites the court to consider carefully whether all the assets in the case really fall into the same category for allocation between the parties. The business assets are to be looked at differently, he says.
9. Thirdly, he says the wife's award should reflect or be reduced by the fact that she failed to support him in his business endeavours during the marriage and, as part and parcel of that argument, at the end of the marriage refused to move with him to the tax haven of Bermuda to avoid a massive potential CGT claim. She should not anyway benefit from that tax saving, he says.
10. Fourthly, he says that the wife's calculations of the wealth take no account of proper discounts which should be applied to the valuation of his assets to reflect the lack of marketability of some of the investments he and the Trust hold in Axis, the insurance company he has built up since 2001.
11. Finally and in any event, he asserts that he has made a special /stellar contribution which should lead the court to award him a special bonus/premium in the post marriage division. Thus, departure from equality is fully justified.
12. Those are the significant issues between the parties. Plainly the resolution of each one either way could carry expensive financial implications. I shall decide them as they arise during the course of this judgment.

The hearing and the evidence

13. The hearing lasted a total of nine days and had a number of unusual features. In the first place, it was divided into two parts (in February and May) because it was anticipated, rightly, that House of Lords decisions in the pending cases of Miller /MacFarlane might throw some much needed light onto the proper approach to the "conduct" and "special contribution" debates which have been bedevilling these cases since Cowan in 2002. This was in the context that the wife had made a written concession that she would not contend for a greater share than 45 % of the assets if "special contribution" as a concept survived the Miller/MacFarlane decisions. Accordingly it was agreed that judgment should be reserved following the hearing in February until the House of Lords had delivered their decision. Further written and oral submissions followed the House of Lords delivering their decision on 24 May 2006.
14. Secondly, and unusually, every word of the final hearing was professionally transcribed and produced in written form within hours of its being spoken by a witness, counsel or myself. This was a luxury which very few cases require or can stand but in this case, for reasons which will be apparent, it was helpful.
15. The evidence was partly written and partly oral. The written evidence (Forms E, statements, reports from experts and numerous assorted documents) was contained in 14 coloured lever arch files provided to the court.
16. Many other documents (13 other files) which had arisen during the interlocutory stages of the case were not included in the main trial bundles provided to the court in the interests of manageability. Instead a useful innovation was employed during the trial. It was Bundle N known as the "Elevation bundle". This contained other documents not included in the main bundles but "elevated" there during the course of the hearing by one side or the other as a result of reference being made to them in examination or submission. Its lettered dividers matched the unused bundles so that their origin could be identified. By the end of the hearing it was about one- third full. So far as the advocates are concerned, such a bundle has an advantage over a more conventional core bundle because it does not alert the opposition to the presence of a forensic man-trap lying inconspicuously in the long grass of the more peripheral written material. Whilst the element of surprise is nowadays regarded as a device to be discouraged in the interests of promoting settlement, occasionally it can still be useful and legitimate providing the documents have at the appropriate stage been disclosed.
17. The oral evidence was from wife, husband, forensic accountants and a pension expert. At the start of the hearing there were four other supporting witnesses on the witness template. Two for the wife (dealing with her supportive role as the wife of a business man) and two for the husband (dealing with his extraordinary skills in the world of high risk insurance). In the end, I having read them and given a sotto voce judicial hint, none of them was called. I doubted whether further oral examination of these witnesses would advance either case on the points about which they could speak given that there was no competing evidence on the points.
18. No mention of the material provided to me would be complete without reference to the written opening and closing statements/ memoranda/submissions (and chronologies) provided by the teams of counsel and solicitors for both parties at the beginning and end of both parts of the hearing. They, together with the multi coloured asset and other schedules (in the husband's case laminated for durability in the style of a restaurant menu) have been simply invaluable.

The Wife and Husband

19. Before coming to the background to this application in detail I shall say something of the parties. Common to both of them was an immense feeling of hurt and pain surrounding the marriage breakdown which, I detected, still lingers. As a result extraneous issues/evidence found their way into the application which have caused added bitterness. Both sides blame the other for the fact that the children have become involved. The husband is genuinely bemused that the wife should regard his £20m offer as anything other than reasonable, even generous. Her refusal to compromise on his terms has led him to deploy every available point to protect what he regards as his wealth generated entirely by his efforts. In the narrow, old fashioned sense that perspective is understandable if somewhat anachronistic. Nowadays it must attract little sympathy.
20. It has also meant that the court has been asked to examine closely aspects of the psychological dynamic of the marriage partnership in a way nowadays almost unheard of. At times the hearing almost took on the form of a defended divorce. I mention this now (as well as later) because it explains the husband's approach to the case and affected too his evidence.
21. Both wife and husband were careful witnesses. She is a quiet, even reticent, woman but steady and determined. The husband is a dynamic, energetic, self-made entrepreneur. Both are utterly different in their personality and approach to the priorities of life. Neither approach can possibly be said to be right or wrong, good or bad. Both are equally valid but of course their very difference created tension and conflict within this long marriage which unresolved and without compromise on both sides has eventually led to its destruction.
22. I find, where there is a difference of recollection, that the wife is to be preferred. That is especially so where the detailed events and conversations relating to the ending of the marriage and the husband's move to Bermuda are concerned. His written evidence on these points is less reliable and in his oral evidence he, from time to time, accepted that.

The background and chronology

23. Both sides have produced detailed chronologies and summaries of the background drawn from the statements and documents. There is little distinction, other than emphasis, to be drawn between them. I am not going to set out the whole history of the marriage at such length. They can be taken to be part of my consideration of the whole background picture. Accordingly I shall only now mention dates and facts which are required so that this judgment can be free standing.
24. The husband was born in 1952 and the wife in 1953 so both are now 53. As I have indicated they met in 1969/1970 and started working in 1971 having left school. The husband soon found a position as a junior in the marine box at Sturge underwriters at Lloyd's. The wife worked for Legal and General. In 1972 she became a civil servant. In 1973 the parties became engaged. In 1975 the husband became a deputy marine underwriter.
25. The parties married on the 28 February 1976. They owned almost nothing and went to live with the wife's parents. Later that year they bought a small house in Strood, Kent for £14,500 on a mortgage.
26. The house in Strood was the first of four homes ending in the purchase in 1987 of Dell House, Wildernesse Avenue, Sevenoaks, Kent. This was their home until separation in 2003.
27. The husband returned to Sturge as a deputy underwriter in 1977. In 1981 he moved to a position with Scottish Lion Insurance, a company owned by the wealthy Tung family of Hong Kong . The husband maintains that his approach to both business and family matters was considerably affected by his contact with that family. He explained that both in his written and oral evidence
28. In 1986 the husband returned to Lloyd's and acquired the Posgate & Denby syndicate for £700,000 using borrowed money. HHe became an underwriting member of Lloyd's by virtue of a charge over the party's then matrimonial home Cherry Bank, Bearsted, Kent. The husband maintains that the wife was a little slow to embrace his requirement for the use of the jointly owned home as collateral. The wife admits that she took about 24 hours to make up her mind before signing. Her caution, if such it be, in this respect seems to me to be reasonable, prudent and proportionate given the state of the parties' finances at the time . However the husband's criticism of the wife in this regard is a nice illustration of their difference of approach to life generally.
29. Six years after the marriage, on the 29 May, 1982, Nicholas the eldest son was born so he is now nearly 24. Michael was born on 15 April 1987 and so is 19. The wife ceased paid employment prior to the birth of Nicholas. She has not since resumed a paid position. In 1994 she became a lay magistrate and is now a chairman of her local bench.
30. Charman Underwriting Agencies Ltd was formed in 1986. This was the start of the transformation of the parties' financial circumstances. Dell House was bought the following year for £475,000.
31. On 16 November 1987 the husband created the two main trusts in this case; the Dragon Holdings Trust and the J. R. Charman Children's Settlement. The husband explained to me that he hoped and intended to generate substantial asset value and these vehicles were a natural part of the planning. Both settlements were established at that time in Jersey.
32. In 1994, as a result of the restructuring undertaken at Lloyds, Tarquin was formed and 25% of Charman Underwriting was sold to Tarquin Ltd, by way of an exchange of shares. Each of the husband, the Dragon Holdings Trust and the Children's Settlement disposed of part of their respective shareholdings in Charman Underwriting.
33. In November 1995, the balance of the shares in Charman Underwriting were sold to Tarquin Ltd for a combination of cash and further shares in Tarquin.
34. In 1998 Tarquin Ltd was sold to Ace, a large international Bermuda incorporated insurance company listed on the New York Stock Exchange, for about $575 million (£350 million). The husband became a director of Ace and the senior executive outside the United States, based in the United Kingdom. Consequently, the husband, the Dragon Holdings Trust and the Children's Settlement all became the holders of substantial blocks of shares in Ace Ltd.
35. In October 2000 the Children's Settlement sold 502,000 shares in Ace for £13.4 million. Apart from that disposal, the husband and the trusts retained their holdings in Ace; and in fact received additional shares over the five years from 1998 under a combination of a dividend re-investment plan, the award of additional shares and the exercise of options.
36. In March 2001 the husband left Ace Ltd. It seems that there was a clash of management styles between the husband and two other directors. The consequence was that the husband was summarily removed from his position. The husband was distressed by the circumstances in which he came to be removed from that company and as is often the case when parties to a marriage face a common threat, they drew close. The wife gave the husband considerable emotional support at the time.
37. It is the husband's contention that he was unfairly dismissed by Ace and certainly by 16^th May 2001 the husband had negotiated severance terms of a total value of £4.2m.
38. During this time (i.e. in the months before "9/11") the husband was approached by Marsh & McLennan to set up a new global insurance company based in Bermuda. .
39. Axis Specialty Ltd was incorporated in Bermuda on 8^th November 2001. "9/11" accelerated the setting up and development process and it formally began trading on 20^th November 2001. The husband was appointed CEO and was paid a founder's fee of $2.5 million.
40. Axis was launched with funding of $2.5 billion, of which $200 million was from Marsh & McLennan itself and the balance from finance houses in New York. The husband invested $20 million partly from the Dragon Holdings Trust and partly from the Children's Settlement.
41. The husband's employment had for years entailed him spending much time abroad. But following the decision to launch the new insurance company this increased. There is some dispute about events and conversations at this time but I find that in October 2001 (at a time when they were on holiday in Venice) he told the wife that he would be travelling to Bermuda each week but only for about 6 months during the period the business was being set up . In fact he spent about 3 days a week there from autumn 2001.
42. During 2002 the husband's absences abroad were the cause of real tension between the parties and in late 2002 he told her he intended to limit his travelling to Bermuda to once a month. However, from then onwards in fact he spent most of his time abroad. By January 2003 the husband had evidently decided that he was no longer resident in the United Kingdom for tax purposes for, when he reported the date of his change of residence to the Inland Revenue, he gave that as 27^th January 2003.
43. Meanwhile the development of Axis proceeded apace. On 9^th December 2002 Axis Holdings Ltd was formed as the new holding company.
44. The husband and the Trust were still considerable shareholders in Ace. In a programme of disposals from February 2003 to February 2004 those shares were all liquidated. The summary table prepared by the wife's team shows the position nicely:

Vendor	no. of shares in Ace Ltd that are sold	sale proceeds in cash £
H	1,073,500	22,163,333.28
Dragon Holdings Trust	1,720,805	36,792,945.00
Children's Settlement	261,037	5,575,750.32
Total		£ 59,532,028.60

45. As part of his decision to move abroad the husband arranged to export the family trusts from Jersey to Bermuda. In February 2003 Conyers Dill and Pearman, Bermuda attorneys, were formally instructed to effect the shift which took place in April 2003. The wife remained in ignorance of these emigration plans and steps until May 2003.
46. In July 2003 Axis Capital Holdings Ltd was floated on the New York Stock Exchange.
47. Somewhat inconsistent with the husband's apparent emigration plans, in September 2003 the parties agreed to buy another, larger house in Sevenoaks which they had both always had an eye on, Stormont Court. On 24^th September 2003 the parties agreed to buy it for £3.5 million. In October 2003, in the course of discussion about the husband's absences, he told her he did not want to live in Bermuda.
48. Despite these conversations, on 14^th November 2003 the husband told the wife by telephone that he regarded the marriage as over. He told her that he had established his residence in Bermuda and that he was not coming back to the United Kingdom. This was confirmed in writing on 26^th November 2003 and, on the same day, the wife told the owners of Stormont Court that the purchase would not proceed
49. The husband seeks to rely on the failure of the wife to remove with him to Bermuda at the end of the marriage and her attitude to his work during the marriage. However, many of the facts relating to these matters are very much in issue. I shall resolve those issues, to the extent necessary, later in this judgment when dealing with the relevance of conduct/ contribution within the section 25 analysis.
50. The wife filed a petition for divorce (S.1.2.b of the Matrimonial Causes Act 1973) in London on 28^th June 2004 and the correspondence between the parties' respective London solicitors began in July.
51. However, the husband preferred the divorce to take place in Bermuda and to that end filed a petition there on 26th August. The following day he filed an Answer here, seeking a stay of the English proceedings. The wife sought a "Hemain" undertaking which was not forthcoming and indeed the husband then took numerous steps to progress the Bermuda suit. This early skirmishing (the details of which now no longer matter) ended in an application by the wife for a Hemain injunction which I heard and granted on 24 September 2004. Since that time I have heard all interlocutory applications (save for the FDR) including one by the husband that I should recuse myself.
52. On 11 February 2005 I refused the husband's application for a stay of the English proceedings and I also dealt with the wife's application for maintenance pending suit. I gave the husband the option of paying at the rate of £360,000 per annum or of paying £5million on account instead. He chose the latter course and this is source of the sum of capital which the wife still has. In my judgment this optional approach is the best way of dealing with interim provision in these very large cases.
53. The only other interlocutory step of significance was the wife's application for the issue of Letters of Request directed ultimately to the trustees in Bermuda to investigate the husband's assertion that the Dragon Trust was and had always been considered to be a "dynastic trust" and so, arguable in a different category from the other resources of the husband.
54. On 20 October 2005, despite the husband's vigorous resistance, I granted the request. He appealed to the Court of Appeal but the appeal was dismissed by a series of reserved, detailed and closely reasoned judgments. However, all this forensic activity was to no avail because the judge in Bermuda, Mr Justice Bell, somewhat churlishly in my view, declined to assist the English Court in the face of opposition from the Trustees. He would not order/permit the production of documents by the trustees. He thus rendered any examination of the trustees largely nugatory. There was no time before this hearing for an appeal to be heard in Bermuda against that rather parochial decision of the Bermuda judge.
55. Finally, on 6 February 2006 the husband announced that he would retire when he is 55 "as a direct result of the legal action taken by the wife". That would be 2008. A press release followed to like effect. It remains to be seen whether the husband in the end will adhere to that expressed intention. It is an indication of the underlying strength of Axis that the husband's announcement of his departure has had no adverse affect on its share price.
56. So, as matters now stand, the husband is based in Bermuda and America but still travelling extensively. He has formed a relationship with another woman. That may have been the catalyst for the final ending of the marriage but it was not the cause of its breakdown. The husband has bought two large homes in America ; Atlanta and Palm Beach. He also rents a property in Bermuda
57. The wife remains in Sevenoaks in Dell House. There is no dispute that she should keep it. Nicholas is studying at Birkbeck College in London, his younger brother, Michael is working with his father in Bermuda.

The Statutory "Balancing Exercise"

58. Matrimonial Causes 1973 S.25 rules the day. And despite the endless judicial gloss which is applied to it year in and year out at every level it is always best to start and end in that familiar section. The first consideration is as always the children but they are so amply provided for that they call for no special mention.
59. For some mysterious reason the final figure for the Children's Trust has not been forthcoming despite the husband having, apparently, recently asked for it. The wife calculates it by updating previous disclosure at about £37.7m. The latest actual disclosure put it at nearer £26m. Either way the adult children's financial needs for the rest of their lives need form no part of the main debate between the husband and wife.
60. The obvious starting point for all these applications is the financial position of the parties now. I turn to consider the assets one by one and the issues attendant upon them

The parties resources (assets , liabilities, earning capacity. Subsection 25.1.a)

61. I have referred to the excellent schedules produced by the diligence of Counsel and provided to me in hard copy and electronically. For convenience, as an index, I shall use the proforma provided to me at the conclusion and headed "Judge's Asset schedule" and work down it item by item. The value of some of the assets and differences between the parties are, in the context of the huge figures in this case very small. I shall avoid hair splitting and nit-picking (as indeed parties in these cases should endeavour to do). Swings and roundabouts are always present. The completed schedule will be attached to this judgment.
62. Dell House. A recent valuation by the agreed valuer asserts £2.75m as the current value. The husband thinks that is on the low side. He may be right but in the context of the figures in this case the difference is immaterial. I shall use the valuer's figure.

The husbands American properties; Palm Beach and Atlanta.

63. The husband proposes the original 2004 purchase prices. The wife wants to adjust them by applying published local House Price Indices. The husband's figures are, unlike many of the figures in the case, hard numbers. I adopt them unchanged. HPIs are only the broadest of guides based on averages. Having seen the photographs I doubt these houses are very average.
64. Willicombe House. This is a property occupied by the wife's parents. It has an agreed value of £575,000. The wife wants to discount that to take account of her mother's age and because she says it is not readily available to her. I shall be considering discounts for lack of immediate saleability in the context of the Axis interests later. Where, as here, there is no pressing need to liquidate assets, discounts need, I consider, to be approached with caution in this jurisdiction. The wife will extract full value in the fullness of time. No discount is warranted here.
65. The figures for the bank accounts and smaller investments are not in dispute. The wife's current bank balance derives from the interim arrangement forming part of the order of 11 February 2005. I have included the figures as they appear on the schedule. The figure for the husband's tax liabilities is now also not in dispute (subject to paragraph 94 below); £1,835,000. There is the familiar argument about adding back the paid legal costs. Where they form, as a proportion of the whole financial cake, a significant tranche that may make good sense especially where the bills are very different. The costs in this case are, of course, very high but not as a proportion of the whole. I have decided therefore to ignore them.

Personal possessions

66. The husband's opening position was that a figure of £692,375 should be included as part of the wife's assets to take account primarily of the value of the contents of Dell House, her jewellery and the car. The wife suggested these figures should be ignored in the conventional way. However, each has reversed their position, because as a result of last minute disclosure during the hearing it became apparent that the husband had spent £2.4m on furnishing his houses and buying jewellery etc. Unsurprisingly he would now prefer to adopt the wife's original suggestion! The figures are now too large just to be ignored. Ignoring cars, a reasonable figure for furniture, bearing in mind these are insurance values or purchase prices, for the wife is £400,000 and for the husband £1,250,000.

Pensions.

67. Relatively speaking, the values are not very significant in this case and I think with a bit more give and take on each side figures should have been capable of agreement. The husband has a pension entitlement (SERA) by virtue of his employment with Axis together with a further pension from previous employment with an agreed value of £271,000. The SERA is in the nature of a contractual income entitlement. So both sides have advanced valuations of the expected income stream. I heard live evidence on the matter. It all boils down to the rate of return to be applied to an imaginary capital fund which would produce this income (the discount rate). The higher the return, the lower the value of the fund. By this route the husband now (his expert moved during the hearing) contends for a discount rate of 10% producing a value of £1,906,898. The wife's 7% produces £2,437,215. The contentions on both sides are all completely theoretical but equally well-reasoned and arguable. I hope I shall be forgiven for splitting the difference. I shall take the figure of £2,442,000 including the agreed extra figure of £271,000.

2005 Bonus.

68. This had been earned but not paid by the time of the hearing. I suspect by now it has been paid. It is in sterling terms £785,000. The husband asserts that it should be ignored as it is income not capital. But the husband has a salary in excess of £702,000 as well as stock awards. Distinction between income and capital when the figures are this large is artificial. I shall include it.

Accumulated Income from Dragon Trust

69. This is income which on any view can be called for by the husband because the trustees have always allocated him the income albeit that he has not historically (except for very small amounts) called for it or needed it. If, of course, at the end of the day I include the whole of the Dragon Trust assets in the overall amount for division it makes no difference where on the schedule this sum of £4,045,000 is included. However, if a distinction is to be drawn then, says the wife, this amount is the husband's anyhow. I think it is properly regarded as in a slightly different category from the rest of the trust assets so I shall include it on this part of the schedule as an asset of the husband. It might have added significance if enforcement of an order becomes seriously problematic.

Axis interests and the Dragon Trust.

70. This is where the really significant financial/valuation issues repose. The husband contends for the exclusion of the entirety of the value of the assets held by the Dragon Trust. On his figures that is in excess of £57,000,000 (ignoring notional "Bermuda" tax savings). By the wife's calculations it would exclude just under £68m i.e. over half the assets in the case. Within both those Dragon figures there are agreed non Axis assets of £39,397,000.
71. I shall deal with that issue now because if Dragon is to be left out of account the valuation debate relating to the value of the Axis interests becomes altogether less important to the overall outcome.
72. It has been the husband's contention from early in the proceedings that Dragon assets should be ignored. He says they are in a different category from the rest of his assets and have always been so regarded by himself. And, furthermore, he says, the trustees have known about his views throughout. I do no justice to the detailed and careful arguments advanced for (and against) the husband's case that Dragon was a dynastic trust and should, accordingly be ring-fenced from consideration by the court. Mr Singleton amplifies them fully on pages 3-8 of his closing submissions. Mr Pointer sets out on page 103 et seqq.(a) – (v )and pages 109 -111 of his submissions his detailed refutation of the husband's position. This judgment will not benefit from extensive reproduction of the arguments. I have the points on both sides fully in mind.
73. At the end of the day I have come to the conclusion that the husbands arguments fail both on the facts and as a matter of principle.
74. On the facts: the evidence far from supporting the husband's case seems to me to undermine it. The failure to indicate any such dynastic plan on the face of any of the letters of wishes drafted at any time since Dragon's inception is, quite frankly, incredible if it underlay the trust's true purpose. At all times the trust has been in the hands of paid professional offshore trustees. Would they have allowed this fundamental matter to have remained undocumented? I think not. I reproduce a short passage of the transcript

Q As you told the judge a year ago, your view always was that you were not going to see old bones? A.  Sorry, what did you say?

Q You never thought you would live to an old age? A.  No, I said I had never expected longevity because my father died when he was 45. I never expected that longevity was something that I could rely on.

Q That is what I am saying to you. A.  No, that's not. It meant I had a great regard for every day that I woke up and lived my life.

Q There is nothing there about ongoing generations, is there? A.  No, I didn't think that there needed to be. I've said it time and time again.

MR. JUSTICE COLERIDGE: How on earth was anybody going to understand that this was your abiding ambition then? A.  The greatest risk I faced, my Lord, is the fact that I died, and I was far too busy trying to create value to worry about my demise.

Q You cannot have cared too much about ---- A.  I did care.

Q ---- your ambition, because it is an extraordinary – I do not mean that in a disbelieving sense – it is an extraordinary ambition to wish to leave half your fortune to people who are yet to be born. A.  But, my Lord ----

Q That would not be the natural behaviour of people left behind if you were to fall under a bus or crash into the sea to think, "Well, we are not going to benefit his heirs, we are going to hold it all and keep it away from them". A.  But that was my intent, my Lord.

Q You kept it to yourself though. A.  I did, I am afraid. That is what I said yesterday, if I had known that I would be sitting here today and poring over documents that have been produced over the last ----

Q That is not much of an answer. That is really not much of an answer, Mr. Charman. Nobody in the world knew that this was an ambition of yours, it was not written down anywhere. How was anybody going to act to bring about this intention? It is no good harbouring some deep intention if no one in the world knows about it, is it? A.  At that time that was a risk I was prepared to take, my Lord.

Q It is not only that time, it is throughout the entire life of the trust? A.  No, I had told Alec Anderson when I went to Bermuda – my Lord, if you go back to Codan, I had a very limited number of discussions with Codan."

.

75. I am bound to say having now heard and read everything about Dragon I remain sceptical about the husband's actions or lack of them. Nor do I readily accept the husband's plea when I contemplate the Herculean struggle put up by him and his team to prevent cooperation from the very people who, in all normal circumstances would have been expected to support it. His eleventh hour change of heart and approach to the trustees (on the eve of the trial) in Bermuda was also unconvincing. So if the husband harboured this as a settled and real intention from the outset, the lack of a single piece of supporting documentary evidence from any quarter is truly remarkable. Mr Pointer stresses the absence of any of the steps which the husband could have taken along the way to make sure that this intention was realised. None of them was very complex. Indeed only a little simple drafting was required.
76. The wife also knew nothing of this plan. I am satisfied having heard her evidence that she would not have deliberately concealed this if she had heard of it. Her evidence is straightforward and her recollection good.
77. So I find that, on the facts, this part of the husband's case fails. These assets are no more "dynastic" than any other part of the husband's immense fortune which will inevitably be handed on for many generations to come after "he has shuffled off this mortal coil" (Hamlet).
78. But even if I had been persuaded of the existence of this as a settled, even documented intention I am doubtful in the circumstances of this case whether, of itself, it would have been very influential in the result.
79. The test is whether the assets in the trust should be regarded by the Court as a "resource". That is a very broad definition. These assets are held in a discretionary trust in conventional form. I will not repeat the very helpful descriptive analysis of such a trust in the Jersey High Court adopted by Potter P in his judgment dismissing the husband's appeal against my order relating to letters of request. (See Re Esteem Settlement [2004] WTLR 1). It is a very useful description of general application in cases like this. And as Lloyd LJ on the same occasion pointed out the assets in the trust "could be available to him on demand without being his money", as Mr Singleton was constrained to agree.
80. So even if the husband had got home on the facts, for the Court simply to have ignored the assets would have been, I consider, wrong and, in my experience, entirely novel.
81. Can a spouse remove from consideration under S25, at the stroke of e.g. a letter of wishes, half the assets accumulated during a marriage without the consent of the other spouse? At the end of a marriage of this length for a spouse to be excluded from benefit by such an informal arrangement even if consensual and created at the time when the marriage was sound would be grotesquely unfair. He or she must be able to say, surely, in such circumstances "whatever may have been your/our intentions then, now that the marriage is over I have changed my mind and these assets must be on the table for consideration like all the others. I will decide following receipt of my portion what I want to do with them and whom I want to benefit now and in the future."
82. So in the end I am persuaded by Mr Pointer's arguments and all the assets in the Dragon Trust will remain well and truly on the main schedule.
83. I turn to the valuation of Axis shares, option and warrants within and without Dragon. Both sides have employed the services of household-name accountancy firms to assist them. Price Waterhouse Coopers for the wife and KPMG for the husband. The extent of the overall difference between them is almost exactly £20m. It is nicely illustrated on a schedule which I shall annex to this judgment (schedule 1)entitled "Comparison of experts' reports and conclusions as to valuation" which was prepared jointly by junior counsel. It highlights the different discounts contended for by each side.
84. In support of the arguments proposed by each side I have careful written submissions. Mr Pointer in his opening note summarises the main differences between the experts and the competing contentions from page 29. I annex an edited version. (Schedule 2) (Clokey from PwC was the wife's valuer (assisted by Tim Lawrence formerly of that firm). Nicholas Andrews and Andrew Collard from KPMG were the valuers for the husband.)
85. The approach to valuation issues in this Division is and always has been to look at the reality of the situation in any given case. For decades the Court has set its face against hypothetical valuations produced for different purposes (Income tax, probate etc). Any other approach is, quite simply, unfair. Indeed the rigid adoption of CETVs in pension cases sometimes has that effect, albeit that it is expedient for other reasons. Of course this often leads to spirited debate. So where for instance a case proceeds on the basis that a sale at less than true market value is inevitable to satisfy a likely court order then discounts at high levels are often appropriate. But where a sale can be avoided or delayed to enable full value to be extracted over a reasonable time that too must, in fairness, be properly reflected in valuation.
86. For that reason I reject the approach adopted by KPMG as being hypothetical and prefer PWC as being specific to the facts of this case. Exactly the same kind of considerations apply when looking e.g. at discounts for valuation of minority interest in private companies. Sometimes they apply, sometimes, especially in family situations, they do not. See GvG (Financial Provision: equal division) 2002 2FLR 1143.
87. I shall adopt the share price current at the time of the February hearing because as it turns out the figure of $29.5 is a reasonable mid price. As a preliminary matter it is also important to remember that Axis is a company whose stock is quoted on the New York stock exchange. This is not a case about private company holdings where the "top line" is in issue before discounts are applied. So all the shares are (subject to particular time restriction) freely tradeable and, in time therefore also, the shares generated by the exercise of options. Great care therefore needs to be taken when discounting from readily available market value.
88. As to the discounts for delay or restriction on sale; I heard no rational basis for the huge discounts (60% and 70%) contended for by KPMG. They accepted they were in effect plucking figures out of the air. I did not understand their methodology at all. I reject it and prefer PwC's more measured approach.
89. As for the CEO selling discount, those arguments must, I consider, nowadays normally be regarded as "old hat". There was a time when CEOs in the divorce courts were a rarity, and the prospect of their having to find cash to meet settlements for wives was enough to send a shiver down the stock market's spine. Expert evidence was often led to predict the affect on a share price in the CEO's company of a sale following divorce. All recent evidence and experience shows that this is no longer the case. CEO's are now, sadly, frequenters of these Courts and with the most minimal of careful public relations prior to a sale, it is of no moment so far as the stock market is concerned. The recent Sorrell Case, amongst others, illustrates this. I would like to hope that these arguments are now anachronistic and can be confined to forensic history. If that is removed from the discount debate there is really nothing between the experts so far as volume discounts are concerned.
90. The attempt by KPMG to apply a further discount for the departure of the "key-man" cannot possibly now be sustained given the husband has announced his departure and the market responded by increasing the share price. I again remind myself that this is a huge publicly quoted company where the departure of one man is self-evidently unlikely to rock the boat.
91. Overall, I far preferred the evidence of Mr Clokey on all valuation issues at stake. His approach and discounts seemed carefully considered, rational and fair in contrast to KPMG where I had the distinct impression that straws were being clutched at every opportunity to depress the figures artificially. I shall adopt the PwC figures and have included them on the main schedule. Their overall value within and without Dragon is £73,117,406 broken down as appears on the schedule.
92. The husband seeks inclusion on the assets schedule, by way of a deduction, of the potential (not actual) liability to tax which he asserts was saved by his emigration to Bermuda. He says the wife should not be allowed to benefit from that saving (both in relation to his assets or those in Dragon) because she did not make the move and accompany him. If there is anything in that argument the place for it is in relation to consideration of matters of conduct which I will revert to below. It is not a true monetary deduction at this stage of the S25 exercise. I shall remove it for now from the schedule.
93. The assets schedule (annexed as Schedule 3) thus far reveals a grand total of all resources of £131,323,000 broken down as to £6,634,000 in the wife's name, £56,564,000 in the husbands name and £68,125,000 in Dragon.
94. At the 59^th minute of the 11^th hour, namely about a week ago the husband sought to make an application to admit new evidence about a potentially much higher level of income tax which might be chargeable on his Axis interests; the restricted shares and the share options. The further liability was estimated at a little under £11m. I heard the application over the telephone as I was on circuit. It was vigorously opposed by the wife. The liability had apparently been overlooked by the husband's accountancy team until the end of June. No explanation was forthcoming. I refused the application on the basis that it seemed to me almost inevitable that it would lead to a very significant further delay in delivery of judgment as the liability was far from conceded. However, I indicated, and the wife accepted, that if in fact in the end there is indeed a further UK tax charge referable to these interests when realised, a mechanism should be provided to enable the husband to recoup a portion of the actual tax paid (when it is paid) by him to the Inland Revenue. I shall so provide.

Earning Capacity.

95. The husband, additionally, has a very significant, indeed he would assert extraordinary, earning capacity. I cannot ignore it.
96. There is no doubt that even if the husband's fortune were to evaporate or disappear in a puff of smoke, with his expertise, experience and reputation built up during the period of the marriage he would be hugely in demand and capable of supporting himself and amassing further surplus wealth easily. This factor is specifically mentioned in S25(2) (a) and has given rise to many of the recent cases where exceptional earnings have been reflected in ongoing income provision even where an equal division of capital has been accepted. The wife in this case sensibly and rightly does not seek either to value the husband's earning capacity (an exercise occasionally performed, I understand, in some of the more enthusiastic American states!) nor does she aspire to ongoing income support in the context of the huge figures in this case. However she is entitled, in my judgment, to pray its existence in aid in support of her case for an equal (or near equal division) of capital. It is in a very real sense, a valuable resource acquired during the marriage. So it cannot be ignored, but a little caution is called for.
97. The husband has indicated that his days of working at this rate are coming to an end. He has indicated a retirement date, disenchanted as he is by the demands and strain of this litigation. For a man of his age, wealth and work record to say, for whatever reason, that he does not envisage working much longer cannot be unreasonable. So overall his earning capacity may not have a very significant present value.

The parties respective financial needs and their Standard of Living (25.b. and c).

98. These two factors call for only scant attention in this case for quite obvious reasons. Even on the basis of the husband's open offer the wife's "needs" could be met at the standard of living which she has become used to particularly in the last five years but to a lesser extent in last ten. The remaining fortune in the husband's hands even on his own figures and ignoring Dragon would be much more than that. It is not suggested that either spouse should want for anything financially. They each spend at an enormous rate. And why not given their resources? During 2005 the husband spent (even excluding his expenditure on refurnishing and legal fees) in excess of £2m. They both have lavish homes, photographs of which I have seen. In this case, in the end, the result is not really going to be determined by reference to these two factors. Other factors elbow them aside.

The conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard it (Subsection (g).

99. In this regard, at this stage of the judgment, I am referring to what is conventionally regarded as falling within this subsection i.e domestic misconduct. Mr Singleton QC relies on it in a more positive sense for the husband as well. I will explore that interpretation further below.
100. This factor has given rise to much heated debate. The husband has said throughout that he is not relying on it (see his Form E (E127), schedule of issues (E161) and his Counsels opening at page 18). The wife asserts however that he is trying to sneak it in by the back door by relying on two discrete issues; her alleged failure to support him in his business endeavours and her alleged refusal to move to Bermuda to avoid tax at the end of the marriage.
101. These allegations are indeed relied on by the husband albeit in the context of his complete acceptance that in her role as homemaker and mother she could not be criticised.
102. The generous arguments for and against these positions are set out by the parties' respective counsel in their first written submissions (Wife at pages 91 -102 and Husband at pages 15-27). I am not going to repeat them at length. Having read and heard the evidence and considered the arguments, I substantially agree with the wife's case on these matters.
103. In the first place, as I made clear during the hearing, in my view these allegations cannot be dressed up as anything but "conduct". The husband invites me to include them fully in the financial reckoning. They are not just the conventional "side-swiping" which is sometimes included as (irrelevant) colour in affidavits. I agree with Mr Pointer QC that they should have been asserted fully as "conduct" from the outset. However, as the evidence for the precise allegations was set out early on I did not, in the end, prevent the husband from seeking to advocate them at the hearing. But this approach did create a real risk that the wife was not given a proper opportunity to deploy other allegations in response when the court was delving into these two discrete issues.
104. In any event, as a matter of fact, preferring the evidence of the wife on disputed matters as I do, especially in relation to the events surrounding the final ending of the marriage, I do not find that the wife failed to provide the husband with support in his business endeavours. She supported him perfectly reasonably within the context of his career and their marriage whilst perhaps not to the extent he would have ideally liked and whilst not according those endeavours the priority which the husband attached to them. The evidence of the wife and her witnesses, I find, provides no basis for the husband to establish that the wife's behaviour in this regard was of a character which requires me to have "regard" to it in this respect.
105. Furthermore I do not find, as a matter of fact, that she refused, in the end to move to Bermuda. She certainly protested, as she was fully entitled to, that she did not want to move there, but I am satisfied that eventually she was resigned to do so. When she suggested a compromise of a trial period of two years the husband did not take her up on it. By this time he regarded the marriage as over for other reasons and, I think, had by then embarked on another relationship. Two passages in the oral evidence (amongst many others) seemed to me to be telling. The first, reproduced from the transcript:

Q I understand. A. I did not change those tax laws in 1998. When I tried to explain the situation to Beverly and that just so great a proportion of the wealth that I had worked so hard over such a long period of time to create was going to be seized and her answer was: "Well, just go and pay the tax".

Q I totally understand that from your point of view as the one who worked hard to generate it, that was an anathema. A. Yes, my Lord.

Q But can you for a moment put yourself in her position? A. I have always tried to put myself in her position, my Lord, and that is why continuously I try to find alternatives, but I did try to find alternatives for the sake of the family, but it is very difficult when the only debate is the fact that Beverley was not going to move from England.

Q I do see you both had your very, very clear views about it. What I have to decide is whether or not one person's view was inherently less reasonable than the other person's view viewed from the particular standpoint that they were at and whether, in any event, that amounts to some factor which affects the result of this case.

MR. POINTER: You agree at any rate, Mr. Charman, that in about October 2003 Mrs. Charman at the pizza restaurant in Sevenoaks suggested that she would come out to Bermuda for two years and see if you and she could make it work? A. I don't remember that at all, my Lord. I am sorry. I just don't remember…..

MR. JUSTICE COLERIDGE: The tragedy of this case seems to me to be that there was this enormous blockage between you on this point, and there was need for compromise on both sides and when it came to the compromise, or the possibility of compromise, it was all too late. Is that fair? A. Yes, it is fair, my Lord

The second passage I also reproduce in full from the transcript :

MR. JUSTICE COLERIDGE: I heard the evidence and I can see what is written here. What I want to understand is this, and certainly by February 2004 there is nothing left to discuss, I appreciate that, and you have this terrible meeting between the two of you first the night before and then in your hotel room as you are about to leave the country. What she has said is that in fact at no time was there ever a stage where you said: "If you won't come to Bermuda then you must regard the marriage as over." A. No, that's true

Q It died, did it not? It withered. You knew this was a block that she could not get over, and you took the decision really, did you not, that you were going to have to get on with your life in Bermuda. A. Yes.

MR. POINTER: You know that she says that in the autumn of 2003 she suggested buying a house in Bermuda and giving a try for a couple of years, do you not? A. Yes, she said that.

Q Do you agree she said that? A. Sorry? Well, show me where she said it.

Q Of course. It is at E 355. The actual passage is over the page at 356. That is the passage leading up to it in para.48.

"In the autumn of 2003 I suggested to John we buy a property in Bermuda and try living there for a couple of years."

You accept that she said that, do you not? A. I don't remember it but if she said she said it then I'm sure she said it.

Q Is the reality that by the autumn of 2003 you had formed the view that the marriage was over? A. Yes.

106. I ask myself whether, even if the husband's version of the events surrounding the move to Bermuda had been correct it would amount to "conduct" of sufficient quality and gravity to impact on the result. The husband's protestations of lack of support seem to me to proceed from the assumption that a wife in this wife's circumstances should always subjugate her life to the wealth generating party's demands and views. That seems to me to relegate the wife to a somewhat "Victorian" and subservient role. A wife who fulfils the customary role of mother and home-maker must surely be entitled, nowadays, to make a life of her own whilst the husband is at work. That was what this wife did; she had her family (children and parents) and was heavily involved in her local magistracy. When it came to having to decide her priorities in life hers were driven by more than money. Surely she could not be criticised for that? The parties had already amassed wealth measured at between £80m and £100m. To have refused to move offshore to save the potential tax, payment of which could not possibly impact on their daily lives or the future security of their children despite its size, seems to me to be a perfectly tenable point of view, domestically speaking.
107. So, in relation to this aspect of the husband's case I find that, far from it being "inequitable to disregard it", I find it would be "inequitable to" regard it.
108. The whole of this section of this judgment (paras 97-105) was written before the delivery of the Miller/McFarlane speeches. Does it require amendment in the light of them? I do not think so. Lord Nicholls, Baroness Hale and Lord Mance were, at least on this issue, of one mind. The only domestic misconduct which falls under Subsection (g) is that which fulfils the statutory criterion as being of a seriousness where "it would in the opinion of the court be inequitable to disregard it." Per Lord Nicholls :

"Parliament has drawn the line. It is not for the Courts to redraw the line under the guise of having regard to all the circumstances of the case. It is not as though the statutory boundary line gives rise to injustice. In most cases fairness does not require consideration of the parties' conduct. …..where exceptionally the position is otherwise, so that it would be inequitable to disregard one party's conduct , the statute permits that conduct to be taken into account."

109. Lesser misconduct cannot be allowed to seep into this or any case. Furthermore if it is to be relied on it should be clearly included and asserted at the first opportunity in the appropriate box on the Form E. It invariably raises the temperature in a case and the Court needs to be alive to it from an early stage.

Contributions (Subsection(f))

110. I deal with this factor last because there is an overlap with the further interpretation of "conduct" as foreshadowed above in paragraph 99.
111. For the past nearly five years, since White, courts at every level have been wrestling with the question of whether or not in departing from equality and striving for fairness it is proper to take into account and give weight to exceptional wealth creation by one spouse. In reading and re-reading all the now familiar authorities, attempting to expose and explain the underlying principles, one is reminded of a frenzied butterfly hunter in a tropical jungle trying to entrap a rare and elusive butterfly using a net full of holes. As soon as it appears to have been caught it escapes again and the pursuit continues.
112. After the four speeches in the recent lengthy House of Lords decision I cannot think anything more can usefully be said on the subject. The Courts at first instance must now try to apply the variously expressed principles, encapsulated by Bodey J, in Lambert and repeated by Lord Nicholls :

'The answer is that exceptional earnings are to be regarded as a factor pointing away from equality of division when, but only when, it would be inequitable to proceed otherwise. The wholly exceptional nature of the earnings must be, to borrow a phrase more familiar in a different context, gross and obvious. Bodey J encapsulated this neatly when sitting as a judge of the Court of Appeal in Lambert v Lambert 2003. FAM 103 ,127 He described the characteristics or circumstances which would bring about a departure from equality;

'However, those characteristics or circumstances clearly have to be of a wholly exceptional nature, such that it would very obviously inconsistent with the objective of achieving fairness (i.e. it would create an unfair outcome) for them to be ignored'.

113. Baroness Hale preferred to explore the principles of unequal division by reference to those underlying the matrimonial property regime leading up to and now enshrined in the Matrimonial Causes Act 1973. From Para 149 of her speech she pointed up the competing analyses :

…"149.  The question, therefore, is whether in the very big money cases, it is fair to take some account of the source and nature of the assets, in the same way that some account is taken of the source of those assets in inherited or family wealth. Is the 'matrimonial property' to consist of everything acquired during the marriage (which should probably include periods of pre-marital cohabitation and engagement) or might a distinction be drawn between 'family' and other assets? Family assets were described by Lord Denning in the landmark case of Wachtel v Wachtel [1973] Fam 72, at 90:

'It refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole.'

Prime examples of family assets of a capital nature were the family home and its contents, while the parties' earning capacities were assets of a revenue nature. But also included are other assets which were obviously acquired for the use and benefit of the whole family, such as holiday homes, caravans, furniture, insurance policies and other family savings. To this list should clearly be added family businesses or joint ventures in which they both work. It is easy to see such assets as the fruits of the marital partnership. It is also easy to see each party's efforts as making a real contribution to the acquisition of such assets. Hence it is not at all surprising that Mr and Mrs McFarlane agreed upon the division of their capital assets, which were mostly of this nature, without prejudice to how Mrs McFarlane's future income provision would be quantified.

150.  More difficult are business or investment assets which have been generated solely or mainly by the efforts of one party. The other party has often made some contribution to the business, at least in its early days, and has continued with her agreed contribution to the welfare of the family (as did Mrs Cowan). But in these non-business-partnership, non-family asset cases, the bulk of the property has been generated by one party. Does this provide a reason for departing from the yardstick of equality? On the one hand is the view, already expressed, that commercial and domestic contributions are intrinsically incommensurable. It is easy to count the money or property which one has acquired. It is impossible to count the value which the other has added to their lives together. One is counted in money or money's worth. The other is counted in domestic comfort and happiness. If the law is to avoid discrimination between the gender roles, it should regard all the assets generated in either way during the marriage as family assets to be divided equally between them unless some other good reason is shown to do otherwise.

151.  On the other hand is the view that this is unrealistic. We do not yet have a system of community of property, whether full or deferred. Even modest legislative steps towards this have been strenuously resisted. Ownership and contributions still feature in divorcing couples' own perceptions of a fair result, some drawing a distinction between the home and joint savings accounts, on the one hand, and pensions, individual savings and debts, on the other (Settling Up, para 128 earlier, chapter 5). Some of these are not family assets in the way that the home, its contents and the family savings are family assets. Their value may well be speculative or their possession risky. It is not suggested that the domestic partner should share in the risks or potential liabilities, a problem which bedevils many community of property regimes and can give domestic contributions a negative value. It simply cannot be demonstrated that the domestic contribution, important though it has been to the welfare and happiness of the family as a whole, has contributed to their acquisition. If the money maker had not had a wife to look after him, no doubt he would have found others to do it for him. Further, great wealth can be generated in a very short time, as the Miller case shows; but domestic contributions by their very nature take time to mature into contributions to the welfare of the family.

152.  My lords, while I do not think that these arguments can be ignored, I think that they are irrelevant in the great majority of cases. In the very small number of cases where they might make a difference, of which Miller may be one, the answer is the same as that given in White v White [2001] 1 AC 596 in connection with pre-marital property, inheritance and gifts. The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the court is expressly required to take into account the duration of the marriage: section 25(2)(d). If the assets are not 'family assets', or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division. As we are talking here of a departure from that yardstick, I would prefer to put this in terms of a reduction to reflect the period of time over which the domestic contribution has or will continue (see Bailey-Harris, "Comment on GW v RW (Financial Provision: Departure from Equality)" [2003] Fam Law 386, at p 388) rather than in terms of accrual over time (see Eekelaar, "Asset Distribution on Divorce - Time and Property" [2003] Fam Law 828). This avoids the complexities of devising a formula for such accruals.

153.  This is simply to recognise that in a matrimonial property regime which still starts with the premise of separate property, there is still some scope for one party to acquire and retain separate property which is not automatically to be shared equally between them. The nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared."

114. Both speeches support the concept of exceptional wealth creation as a potentially relevant factor in the discretionary exercise. Inevitably these speeches will provide fertile areas for creative advocacy in the years ahead but it is prudent to remember that they are explanations of and expansions upon the statute not the statute itself.
115. Further, as it now seems to be agreed that conduct and contribution are opposite sides of the same coin (per Lord Mance at para 164), or of the same species, the tests for their inclusion must surely be identical. As Mr Singleton QC pointed out, in my view rightly, in his original written closing submission it has long been recognised that in fact conduct has no limiting words and is apt to describe not only misconduct (as set out above) but, indeed, any conduct of a spouse which stares the Court in the face and cannot be ignored without creating unfairness. The elephant in the room; incapable of definition but easy to recognise.
116. Mr Singleton QC argues :

"Although conventionally s25(2)(g) is often employed in relation to negative behaviour, there is nothing in its language that requires such a restrictive interpretation. This proposition is confirmed by Wood J in Kokosinski v Kokosinski [1980] Fam. 72 at 83e:

It is argued, and indeed it is true, that the factor of "conduct" has for the most part been used in order to cut down the amount of financial relief which the court might otherwise have awarded to a party, and not for the purpose of increasing that amount. In my judgment there is nothing in the language of the section itself which supports this restricted view. My initial approach, therefore, is that any such restriction is unwarranted. I then turn to authority.

Having reviewed the authorities, Wood J concluded at 85f:

I find nothing therefore in the authorities to suggest that a broad and general approach to the words "conduct" and "in all the circumstances of the case" is undesirable or wrong.

117. So, in the end, is a departure from equality applicable in this case? Or as Mr Singleton QC would have it, are the husband's extraordinary talent and the nature/value of the assets so generated, factors which, adopting his incremental approach, lead to a figure which happens to be much less than one half. In the end I doubt whether the differing approaches lead to a different result.
118. Whichever way it is approached it seems to me this factor must, exceptionally and in fairness, be taken into account in this case. Whether the husband's remarkable abilities in the insurance world, his energy and wealth creation (as I have summarised above and as fully described in his affidavits, those of his witnesses and in argument) are "conduct" or "a contribution to the welfare of the family" in the broadest sense their product is wholly exceptional, "gross and obvious". I am not impressed in this particular case by the arguments about when the wealth arose; Axis was well and truly under way by the time of the separation and a natural extension of the husband's previous business activities. Also attempts at categorisation of the assets hinted at by Baroness Hale are fraught with difficulty after a marriage of this length as she recognises. It leads inevitably to the kind of ringfencing arguments which surrounded the Dragon assets issue.
119. However, I consider that one way or another this factor weighs and departure from equality is fair. So far so good.
120. From the summit of the mountain, the House of Lords has pronounced some of the principles which underlie the "special contribution" issue. They are silent on how to apply them. Indeed whilst disagreeing with the lower Courts in Miller they did not alter the award. For those of us rootling around in the foothills trying to translate these principles into figures, this final stage is the more difficult part of the exercise.
121. Mr Pointer QC concedes the small reduction to which I have made reference but urges great caution in moving away from 50% in case discrimination starts creeping in. Mr Singleton QC rebuts wholly the simple departure from equality approach. In his written submissions he says….

"The proper approach is for the Court to consider all the factors in s25 and determine a fair outcome. The court must cross-check its provisional award against the yardstick of equality to ensure that in the event of an unequal division there are good reasons to justify the difference. The quantification of the provisional award is both a cumulative/incremental approach. The court should look at each of the factors and weigh them into the balance. What the Court cannot do is to assume that the parties (in a long marriage where the resources exceed their needs) are each going to receive 50% and then determine if there is any reason why they should not. Apart from being contrary to White, that approach creates a real risk that each of the factors will not be given the proper consideration that the statute requires."

122. At this stage discretion must rule and I am tempted to call for the assistance of the jury. Most of the factors within S25 have a direct pecuniary impact capable of some calculation. (That of course was the great advantage of the pre-White /Duxbury approach albeit that unfairness was a not uncommon result in cases of this magnitude). But the exercise of inclusion /adjustment for the factor of special contribution is more akin to the "calculation" of general damages in a personal injury or defamation case. Or possibly arguments about contributory negligence. There is no real rhyme or reason to the figures awarded for, say, a broken leg or paraplegia and, similarly, try as I do, I can find little hard ground once the self-justifying fairness of 50/50 is departed from.
123. This problem has in fact been with us far longer than just in the post White era. It is most instructive to reread the thoughts of the then Mr Justice Wilson, one of the supreme specialist practitioners in this field throughout the whole of the post 1971 era. In Conran (1997) 2FLR 615 he similarly struggled when increasing the wife's award on account of her "outstanding contribution" in that case. He said at page 623

"Section E: The Law

Mr Coleridge QC on behalf of the husband accepts that, if this wife has made an outstanding contribution, it must be reflected in the award. The questions are: by what process of thought should it be reflected and, of course, to what extent?

There seem now to be alternative processes of thought by which a wife's contribution should be reflected; but I doubt that they lead to a different result and so the point, though interesting, is academic."

Then at page 627

"Section G: Conclusion

I must now conduct an overarching review of all relevant factors in accordance with the subsection. The scale of the husband's wealth and the standard of living during the marriage are already reflected in the figure for the wife's reasonable requirements. But what in particular are not there reflected are the subsistence of the marriage for no less than three decades and the contributions of both parties to the welfare of the family.

I find it far from easy to reflect the wife's outstanding contribution in monetary terms. Nor is there even a reported case vaguely analogous to this. All that I can do is recall the detail of the wife's contribution set out in Section D; to apply to it some general considerations; and to trust that I have the instinct and experience to allow justly for it in the ultimate figure."

And finally at page 628

"… That said, it would be absurd to conclude that the wife played anything approaching an equal role with the husband in the actual generation of his wealth or indeed to seek to ascribe any particular fraction of it to her contribution. That is why I have no appetite for awarding the wife a particular fraction of the joint wealth or even, which would be just legitimate on the authorities, for cross-checking an award, conceived otherwise, against such an approach. It crossed my mind to uplift the wife's reasonable requirements by some fraction of those requirements and to survey whether the result seemed fair; but, when I came to articulate the logic of such an exercise, I began to flounder.

The fact is, as Thorpe LJ has so well demonstrated in Dart at 293F –295B, that every fractional approach is inconsistent with the wide discretion under the Act; a discretion which in my opinion will have served better than any possible alternative provision the interests of those who since 1971 have suffered the heartbreak of arrival at our divorce court.

After protracted thought – and , let me confess, regular commuting between £10m and £11m – I have come to the conclusion that the award should bring the wife's wealth to £10.5m.

Accordingly the husband will pay her a lump sum of £6.2m."

124. At the end of the day I doubt whether I am carrying out any different process from Wilson J in Conran. Of course since White fractions and yardsticks are now permissible but otherwise I am driven to conclude plus ca change….
125. If adjustment is appropriate, especially in these huge money cases, I think, it should be meaningful and significant and not a token one. It either means something and the court should so mark it or it does not (cf. e.g. contributory negligence). The sharp carving knife rather than the salami slicer is the appropriate tool. Having said that any adjustment should not be so great as to actually impact on the wife's standard of living where, as here, no conduct of the wife's is relevant other than it being conceded that she was a fully attentive wife and mother. But reduction in living standard is highly unlikely in this class of case, given that what is being divided up is the surplus fat in the case, way over and above any amount required to meet the payee spouse's needs.

Human Rights

126. Many of the arguments deployed by and on behalf of the husband by his legal team are both interesting and, as I have accepted, compelling. However the suggestion that a lump sum order made pursuant to S.23 and S.25 of the Matrimonial Causes Act 1973 (as expounded upon by the House of Lords) and following a nine day hearing with the fullest and most skilful representation, in some way breaches the husband's right to "peaceful enjoyment of his possessions " (per Art 1 of the first Protocol) is, in my judgment, frankly absurd. I entirely agree with Mr Pointer's QC exposition in this regard. These "Human Rights" arguments have never yet been successfully deployed in these applications. I hope this is the last we shall see of them.

Conclusions

127. This was a long marriage where the parties started with nothing and all the wealth was effectively created, I find, during its subsistence. Both played their full part in the marriage. However this is a case, in that very small category, where, wholly exceptionally, the wealth created is of extraordinary proportions from extraordinary talent and energy. Taking everything properly into account, I have decided, after much deliberation ("regular commuting" per Wilson J), to transfer the husband's interest in Dell House to the wife and additionally order him to pay her a lump sum of £40 million (in addition to her present assets). She will exit the marriage with a total of about £48million including the assets already in her name. In percentage terms that is just under 37% of the total. The husband will accordingly retain just over 63%. I fully intend the difference which also reflects the fact that the wife is getting cash (if she wants it) and the husband will continue to operate and have a significant stake in one of the most risky fields; high risk insurance.
128. The figure that I have arrived at will provoke one of two responses. There will be those who say that provision to this wife (or probably any wife) at this level is far and away more than she needs and far and away more than she has earned or is entitled to whatever the principles. To those I respond by drawing attention to Lord Nicholls remarks at paragraph 9 of his speech in Miller/McFarlane :

"The starting point is surely not controversial. In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights. The financial provision made on divorce by one party for the other, still typically the wife, is not in the nature of largesse. It is not a case of 'taking away' from one party and 'giving' to the other property which 'belongs' to the former. The claimant is not a suppliant. Each party to a marriage is entitled to a fair share of the available property. The search is always for what are the requirements of fairness in the particular case.

But there will be an equally vociferous response from those who say that after a marriage of this length and quality, where all the wealth has been created during its subsistence, there is no reasonable justification for this wife (or any such wife) receiving less than half of the fruits of their combined but different efforts. To those I respond by drawing attention to Lord Nicholls remarks at paragraph 16 of his speech :

16. A third strand is sharing. This 'equal sharing' principle derives

from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals. In 1992 Lord Keith of Kinkel approved Lord Emslie's observation that 'husband and wife are now for all practical purposes equal partners in marriage': R v R [1992] 1 AC 599, 617. This is now recognised widely, if not universally. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase: 'unless there is good reason to the contrary'. The yardstick of equality is to be applied as an aid, not a rule.

And to both responses I draw attention to Baroness Hale's illustration of this dilemma in paragraphs 150 – 151 of her speech (supra).

129. The decision to which I have arrived seeks to accord proper weight to all these principles and, taking into account all the circumstances, be fair to both parties.
130. If the further tax charge to which I referred in paragraph 94 is payable then, when it is paid, the wife will pay the husband a lump sum equal to 36% of such tax. It goes without saying that the clearest possible accountancy evidence would need to be produced to the wife before any such lump sum would be payable. If there were to be a dispute I would have to adjudicate.
131. I will listen to further submissions about the timing of payment etc but I would hope that the husband has already in hand the wherewithal to pay most of the sum; at the very least the amount he has offered.

And finally…….

132. Cases of this magnitude (in excess of say £30m) are rare but regular in this division nowadays. Mostly they are settled by negotiation (sometimes with court assistance) and the court merely approves the final order. However the sums involved and at stake make the cost of the litigation although very high, relatively proportionate, so full contests result. The parties need all the help they can get from previous authority to assist in negotiation. In a field as discretionary as this one it is often hard to provide real guidance which limits rather than promotes debate. Pandora is constantly vigilant for opportunities to unlock the box. With the arrival of Miller/McFarlane I hear the rattling of keys.
133. As I have demonstrated in this case, in the end, whatever the underlying principles they have to be translated into £s. But this is not the only field of law where such an exercise is undertaken; the common law has lived with it for centuries when awarding general damages. The criminal law undertakes something similar in the sentencing field. In both those areas the courts have been driven to resort to tariffs recognising that there is, in truth, no right or wrong answer and the compromise of unrestrained judicial discretion is justified in the public interest (See eg "Guidelines for the assessment of General Damages in Personal Injury Cases published by the Judicial Studies Board" and published Sentencing Guidelines etc) and to aid compromise.
134. I therefore begin to wonder whether some kind of generally accepted tariff is not called for in this area of very big/huge money too? As Mr Pointer QC was constrained in the end to concede in argument, if this case did not attract an unequal split it is hard to think of one which would. Very similar factors and considerations almost always apply in other cases of self-made wealth of similar magnitude. Extraordinary energy, extraordinary entrepreneurial or other wealth generating skill, combined with the sheer size of the fortune, inundate the picture and have a tendency to overwhelm the S25 exercise however carefully performed.
135. Tariffs are a bit crude and purists would protest that this is an incursion into the hallowed S25 exercise but are they, in the end, likely to produce a less fair result than any other unscientific exercise of judicial discretion? And they have the advantage of increased certainty. Of course they are non-binding and only guidance. S25 would continue to prevail.
136. I forbear from suggesting one at this stage in this case lest it be thought I have applied it to arrive at my decision. I have not. But a tariff of percentage bands which decreased as the size of these extraordinary fortunes increased might prove to be helpful guidance and, ultimately no less fair than the current expensive uncertainty.

SCHEDULE 2

Valuations and Discounts re AXIS interests

See judgment paragraph 84

48."General points

The first substantive difference between the experts relates to their overall approach to the valuation of H's interest in the shares, options and warrants relating to Axis (V1:242:§ 10). This difference is of central importance as it affects the experts' approach to many other aspects of their valuations.

49. Clokey sets out to estimate what he terms the "economic value" of H's interests, which he defines at V1:145 at § 2.16 as representing "the compensation [H] would require in exchange for not owning the asset, including compensation for any indirect consequences". This thesis may be broken down as follows:

i) Clokey's approach assumes that H is a rational investor (V1:151; § 4.5) who would, in realising his assets, do so in an orderly way rather than by an immediate forced sale (V1:151; § 4.3 and V1: 153; § 4.13) so far as possible.

ii) It is also premised on the assumption that H does not need to realise all his assets now (V1:152; § 4.7).

iii) Thus, it is assumed that where there would be a financial penalty in realising an asset now, such realisation is delayed to minimise such penalty (see V1:153; § 4.14), and a discount is applied to reflect the delay, rather than assuming that H would realise all his assets now and take the immediate and substantial knock on the price achieved.

iv) It is a further consequence of this approach that no attempt is made to put an artificial immediate value (using, for example, a rigid Inland Revenue valuation formula) on assets that after a period of time can be realised for a more readily ascertainable sum (V1:151; § 4.4).

50. KPMG use what they choose to call a "fair market value approach" which actually means the assumption that there is an immediate sale of the assets (V1:62; § 1.5.1). Their approach follows the same lines as when assets are valued for tax purposes in this or other jurisdictions and adopts the tax/Inland Revenue definition of "fair market value". Thus:

Where no immediate sale is possible, a discount is applied to reflect that: formulae from the Inland Revenue or other tax authorities are adopted to provide notional immediate values where immediate sale is not possible.

KPMG further suggest that (i) Clokey's method is not normally applied in matrimonial cases, (ii) has been over-ruled (from an Inland Revenue perspective) by the Finance Act 2003, and (iii) is inconsistent with the approach applied to, say, the former matrimonial home (V1:410; § 2.2.2 et seq.

51. In considering assets of the relative complexity of the Axis interests, it is clear that any attempt to determine a value, as at today's date, of assets that cannot be realised for a period of time is going to include a element of speculation (the only certainty being that any figure fixed upon today will not be what is finally realised in the course of time). Nonetheless, every effort should be made to alight upon the most accurate estimated values……………………………….

52. It is further clear that different assets will require a different approach: for example assessing the current value of the piece of real estate is a wholly different exercise from valuing a current interest in a derivative asset, itself subject to the vagaries of the market and the approach to one cannot be criticised solely on the basis that it differs from the approach taken to another……………..

53.Secondly, the experts agree that were H to sell his interests in Axis shares, bearing in mind his position as the CEO and the restrictions of share sales that that necessitates, the appropriate route for such a sale would be what is referred to as a section 144 "dribble out" approach (see KPMG at V1:119; at § 5.6.2 and Clokey at V1:149; § 3.9). However, a section 144 sale is limited by the average weekly trade figure in Axis shares (the Trading Volume Formula (see KPMG at V1:94; § 5.3.4 and Clokey at V1:154; § 4.18(a)). and in this regard the experts differ:

Clokey, assuming H to be a rational investor and not hypothesising an immediate sale, does not consider that H will be hindered by this limitation, which in any event he calculates at 4.1million shares (Vi:154; § 4.18 et seq.);

KPMG state that the figure is 3.5 million shares, and apply a discount based upon the delay that will be suffered by an attempt immediately to sell more that 3.5 million shares (V1:94; § 5.3.4 and V1: 418: § 2.2.37).

54. This affects the period over which any shares could be sold, and thus the discounts for delayed sale which the experts apply.

55.Shares

The first significant difference is the share price adopted by the experts (V1:244; § 14):-

Clokey adopts the mid-market closing price (V1:170; § 5.7 et seq.). This is the price that one finds in the newspapers or other records of the share's price at a particular date – it is the standard price to which any applicable discounts are generally applied.

KPMG use the bid price (V1:90; § 5.2.11). This is based on the premise that H would be a seller, not a buyer.

However, KPMG are constrained to acknowledge, in their second report, that the adoption of the bid-price may require a 1% adjustment to their figures in certain cases (V1:434; § 2.2.104) on the basis that published discounts are generally applied to the mid-market price.

56. There are several discounts considered by the experts as applicable to the valuation of the shares. They are:-

v) discount for delay or restriction on sale;

vi) the CEO selling discount; and

vii) the volume or blockage discount;

57. As to the discount for delay or restriction on sale:

Clokey proposes a discount of 5% p.a. for the restricted shares (V1:159; § 4.30). This extrapolates, because of the different periods, to 9.7%, 14.8% and 19.9% respectively to the three blocks of restricted shares (C3:867); and 5% for the shares underpinning the warrants (V1:158; §4.30), on the basis that these shares cannot be sold for 12 months.

KPMG propose discounts of 60% and 70% to the three blocks of restricted shares and a 25% discount to the shares underpinning the warrants (V1:94; § 5.3.7 et seq. and C3:843), However, these percentages include the discounts relied upon under the following two headings as well. KPMG respond to Clokey's arguments at (V1:422; § 2.2.54 et seq), acknowledging that Clokey's figure is within the range used in their own dealings with the Inland Revenue, but nonetheless produce a figure of 25% relying heavily, it would seem, on the US tax case of Adair (V2:689 et seq.).

58. As to the CEO selling discount:

Clokey concludes that this discount cannot be meaningfully distinguished from the volume or blockage discount (see below) (V1:163; § 4.44); he concludes that applicable total discount under those combined heads is 2% (V1:168; § 4.60);

KPMG assert that the appropriate discount for a sale of shares by a CEO (i.e. the effect on the market of the CEO selling a large number of shares) is 5% to 10% (V1:102; § 5.3.31 and V1:424; § 2.2.61 et seq.)………………………………..

59. As to the volume or blockage discount:

Clokey – see CEO discount above.

KPMG take the view that a volume or blockage discount is applicable (V1:102; § 5.3.32ff) and their conclusion is 1% to 4% (V1:432; § 2.2.98);

KMPG then treat their figures for CEO and volume/blockage discounts in combination and then arrive at an aggregate 10% (V1:432; § 2.2.98).

60.Options

A number of differences between the experts are apparent in their valuation of H's options to purchase Axis shares.

61. There are two elements to the value of the options: the "intrinsic value" (that is simply the current share price minus the option price, i.e. the profit margin); but also the "time or potential value" which is the value ascribed to the benefit H derives from the fact that he can retain the options until their expiry, with no risk as to the price, but retaining the right to purchase (and then sell) at any time within the option period.

62. As to the valuation of the options Clokey approaches the valuation as follows:-

He uses the binomial valuation model (this is the same valuation model as is then adopted by KPMG (V1:174; § 5.19);

there are minor differences between the experts in the data put into that model but Clokey (and Lawrence) do not consider that these differences merit further consideration (V1:175; § 5.20(b)) save as to the date of exercise of the options, which Clokey assumes to be the end of the option period (V1:173; § 5.14(e));

Clokey runs the model having discounted the share price by 2% (being the figure he adopts for the CEO/volume or blockage discount) and reaches a single aggregate valuation (C3:867) for each of the options, i.e. a value which includes the intrinsic value which is calculated using the same assumptions as set out under "Shares" above;

63. KPMG approach the valuation as follows:

they too use the binomial model (V1:71; § 3.3.2);

they assume that H will exercise his options half way between now and the expiry of the term (V1:77; § 3.6.70);

Having run the model, they then apply a further 60 to 70% (say 65%) discount to the potential element of the value of the basis that the lack of marketability would justify such a discount for tax purposes (V1:74; § 3.5.6); the rationale here is that since the options cannot be transferred (in accordance with their rules) and the potential value attaches to the option rather than the underlying share, there is strictly no market value at all. However, KPMG are again obliged to concede that this does not reflect the reality, which is that the options will become exercisable in due course and the shares marketable in the future (V1:73; § 3.5.3

64. The most significant issue as to the valuation of the options is the impact of the date upon which the experts assume that H will exercise his options:

Clokey explains the economic theory behind his approach (V1:152; § 4.9), justifying the assumption that H will retain the options to the expiry of their respective terms. In simple terms the theory states that in the case of options where the holder does not receive dividends until the option is exercised (which these are) it is always advantageous to retain options for the maximum period unless the loss of dividends suffered on the unexercised options is so great as to outweigh the benefit of retaining the options. With an agreed dividend yield of 2%, the benefit of retention clearly outweighs the dividend loss.

KPMG adopt what they assert to be a "fair value" approach based, they say, upon international accounting practice (but in fact used predominantly for tax related purposes) (V1:416; § 2.2.33) and assume a disposal at the middle of the term. ……………………………………………

KPMG further suggest that Clokey's approach assumes that H will remain an executive of Axis until the expiry of the final term (i.e. 2015)

65.Warrants

The valuation of the warrants involves similar considerations to the valuation of options, which will not be repeated here. The summary of the position is:

Clokey incorporates in the binomial model (i) the 2% CEO/volume discount to obtain an aggregate value; and (ii) a 5% restriction on sale discount to represent the 12 months holding period during which the shares cannot be sold after the exercise of the warrants, and thus produces an aggregate value (i.e. including the intrinsic and time/potential values of the warrants);

This underlying share price may need to be modified in the light of the effect of H's retirement announcement on the CEO/volume discount.

KPMG apply the same 60 to 70% discount to the potential/time value, and a 25% delay or restriction on sale discount to the underlying shares (V1:105; Table 8).

66.Personal contribution, or Key Man

The key man argument put forward on behalf of H is an attempt to derive a notional discount to all the Axis interests in which H (including Dragon) has an interest. The discount figure argued for is 7.5%.

67. The argument is not that the interests are in fact worth 7.5% less, but that W is not entitled to any share of 7.5% of their value. Thus its similarity to an exceptional contribution argument is obvious.

68. The argument which KPMG were instructed to consider (V1:57; § 1.1.5) is presented on the following basis:

H has made a personal contribution to Axis (V1:112; § 6.2.2 et seq);

The value of that contribution is hard to measure (and could well be temporary) (V1:125; § 6.2.16);

That H's departure from Axis is not readily foreseeable (V1:125; § 6.2.17) and thus the market expects that he will continue to provide his services for the foreseeable future;

It may take up to 3 years to replace H, and thus dividing his "key man" insurance over 2 to3 years' profits provides a benchmark percentage of 4.2% (V1:126; § 6.2.21);

A figure in the range 5 to 10% is appropriate.

69. We will say that the basis for this argument has been completely undermined by H's announcement of his retirement and consequential effect on the Axis share price.

The reports show that KPMG were expressly instructed to consider "the additional discount relating to the market expectation that [H] will continue to provide his services to Axis for the foreseeable future", considering in particular, (a) the impact were he to leave and (b) the impact of a share sale to fund a divorce settlement (V1:57; § 1.1.5).

H announced his retirement, due to the pending divorce proceedings, on 7 February 2006 after the close of trading;

The fact of H's departure is now not only foreseeable, but plainly in the public domain and must therefore be expressed in the share price;

Axis shares opened up 6.1% the following day; and

In any event, H has given Axis nearly 3 years' notice of his retirement, which allows for the appointment of replacement CEO even on the most pessimistic timetable suggested by KPMG whilst H remains in office and "fully committed to the company".