England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th July 2006

The Hon. Mr Justice Sumner:

Introduction

1. This is an application for ancillary relief made by SG, whom I shall call the wife, against her husband, PG. They were married in October 1997. There were no children. The marriage ended in June 2004 when the husband served a divorce petition on the wife. She started these proceedings in July 2004.
2. The matter was listed for a final hearing in Watford County Court in August 2005. Because of issues then arising the final hearing was adjourned and the matter transferred to the High Court. I heard the matter from 22 to 26 May 2006 when I reserved judgment.

The issues

3. The hearing has been dominated by the need to determine the ownership of certain properties. It is agreed that they were purchased by the husband with his parent's money in his name. He says it was pursuant to a power of attorney they granted him in 1999. The wife denies this saying they were gifts to him. It has also concerned the repayment of the mortgage on the matrimonial home with their money in March 2002 which again the wife says was a gift. This is denied by the husband who says the loan has to be repaid.
4. She also alleges that the husband has been in receipt of cash from his business which he has not declared. That too is disputed. Finally there is the impact of the wife removing cash from the husband before and during the marriage without telling him. The husband says it is so serious that it would be inequitable to disregard it. The removal is agreed by the wife but not its significance. Finally I have to determine the wife's claim for capital and income in the light of my conclusions on these issues.
5. In order for the hearing to be concluded within the time allocated, with the agreement of the parties, I gave a number of decisions during the hearing without at the time setting out my reasons. Even so the day set aside for judgment writing, itself inadequate in the light of the evidence and more than 15 lever-arch files of documents, was fully utilised by 2 sets of submissions for reasons to which I shall come.

Costs

6. Whilst such disputes are not uncommon, the effect on costs in this instance has been appalling. In the light of one of my decisions the total assets are less than £600,000. Because of the allegations made, the husband's father IG became the First Intervener incurring costs of some £37,000. The estate of his late wife BG was made a Second Intervener with costs of some £21,000. That is serious enough. However the wife's costs total £117,000 of which £85,000 is unpaid. The husband's costs are about £123,000 with some £4,000 unpaid. The total costs are therefore all but £300,000.
7. This is totally out of proportion. It has made a consideration of the appropriate order very difficult. I have been addressed bearing in mind the costs so far paid and owing by the parties but not any liability for them. This has presented difficulties. The problems are only increased by the wife's present ill-health and inability to work. There is also the need for the husband to provide a home for his 2 children as well as himself. Sadly the prospect of both parties being reasonably re-housed is now no longer possible.
8. It raises the question of whether there should be some restraint or intervention before parties are crippled by costs to the extent that has happened here. It has I suspect been driven by the wish of the parties or one or other of them to leave no stone unturned in their search to prove their case. It has led to the prospect that whatever decision I reach may well be ineffective when the time comes to consider any liability for costs. It is a position which I regret.

Representation

9. The wife has been represented by Mr Johnstone, the husband by Mr Copley, and the first intervener by Mr Geadah. I shall set out a history of the marriage before coming to the particular issues in dispute.

The marriage

10. The wife is 44 and the husband 45 years of age. They met in 1993 when they were respectively 32 and 33. They had both been married before, the wife twice. The wife has one son, R, now 26 years of age. He lived both with his mother and his maternal grandparents when he was growing up.
11. The husband has 2 children both living with him. They are C who is 18 and in her last year at school and M is 16 with 2 further years of school. C was 5 and M 3 when the parties met. What follows represents my findings of fact unless the context otherwise indicates.
12. The parties I accept started living together in 1994 in the husband's property in Borehamwood. He ran his own travel business, X Ltd. He had savings, insurance policies and a small pension scheme. The extent of his assets at that time apart from the home has not been investigated but they were likely to have been less than £150,000.
13. The wife had no assets. She had shortly returned from living in America. She was living with her parents and her son. She was working for a cosmetics company in stores in the West End of London. It is not in dispute that when the parties started living together, the wife gave up her work and helped to look after C and M. This was in particular when the husband was running his business from an office. Since 2002 he has worked from home.
14. In 1996 at a time of prosperity for the husband's business because of Euro 1996, they moved to an address in Totteridge. This was sold in 1997 when the final matrimonial home was purchased for £287,000. There was a mortgage for £202,000. The property is now worth £725,000.
15. The parties married in October 1997. They separated after the presentation of the husband's divorce petition in June 2004, the wife returning to live with her parents where she has remained. She has not obtained employment since then.

Income and capital during the marriage

16. During the marriage the parties were dependent on the husband's earnings. He is a 75% shareholder in X Ltd, the wife having a 25% interest which it is agreed will be transferred to the husband. Figures for the last 5 years of trading to October 2005 show that in that time turnover has gone down from £805,000 to £339,000 a year. Losses in the first 2 years were £60,000 and £84,000 with salaries reducing from £92,000 to £19,000 a year between the 2 years. There were profits of £17,000 and £16,000 for the years to October 2003 and 2004 but this fell to £300 for the year to October 2005.
17. The husband says that the profitability of the company, which is dependent on the incoming tourist trade, has been affected by 9/11, foot and mouth outbreak, the London bombings, the extent to which he has had to concentrate on the affairs of his parents, and the time he has had to spend in defending the wife's claim. Assets have declined from £148,000 to £97,000. Some indication of the adverse trading conditions are indicated by a decline in expenditure from £186,000 5 years ago to £55,000 a year now.
18. One of the areas of dispute is the extent to which the husband was able to supplement his income from undeclared cash transactions. The wife's case is that his expenditure cannot be explained by a declared salary for each year of £25,000 and the absence of any dividend (originally £10,000 a year) for the last 4 years. The husband's response is that he has been using his available assets to meet the shortfall in his income.
19. The extent of the husband's other assets than those to which I have referred above are not agreed. But I turn firstly to the main area of dispute, the alleged gifts to the husband. I gave a decision during the hearing that the wife had not proved that sums of money used by the husband to purchase property and to repay a loan were gifts. Had she been correct the husband's assets would have increased by some £1.7m.

The purchase of properties in the husband's name

20. The wife's case is that 5 properties purchased between 1999 and 2005, all of them save the last in the name of the husband's father, are his. Her case originally was that the money to do this all came from the husband's resources. Disclosure has shown that the money in every case came from his parents, IG and the late BG. It is her case that they amount to a gift to the husband from his parents. The purchase in his name together with other indicators enable the court to reach that conclusion.
21. The husband's case is that he was at all times acting under a power of attorney which enabled him to carry out transactions in his parent's name using his own. The money all came from them. It was kept in separate accounts. The evidence looked at cumulatively makes that abundantly clear. The same applies to the repayment of the mortgage with his parent's money in 2002. It was a loan of £207,250, not a gift.

IG and for the estate of BG as Interveners

22. In relation to IG there have been concerns about his health. In October 1998 he suffered 2 strokes within a few months. His reading, writing and speaking were impaired. His second will in September 2004 was followed by a medical report from Dr Pathmanandam confirming that he had testamentary capacity.
23. By the time of the final hearing in August 2005 doubts about his ability to conduct the litigation arose. Those doubts were confirmed by a medical report in September 2005 from Dr Mahendra. As a consequence in these proceedings he has been represented as the First Intervener by the Official Solicitor.
24. Following his appointment and an investigation into the allegations the Official Solicitor has taken a further point. It is that, if the wife successfully established the husband had been given the money by his parents as gifts, then they should be set aside by the court on the grounds of undue influence. That has also been one of the factors to be considered in the light of the wife's objection to the Official Solicitor being represented during interlocutory proceedings and the final hearing.
25. Following his mother's death in March 2004 the husband became the executor of her estate. It became apparent by reason of the wife's claim that there was a conflict of interest. Accordingly the estate has been separately represented as the Second Intervener.

IG and BG

26. Their family composition, their assets, and their intentions have all become relevant because of the wife's allegations. Accordingly I set out the details. They have 3 sons, 2 grandsons by one son and 2 further grandchildren by the husband. As appears from their wills, the other 2 sons have been largely estranged from the family.
27. BG was diagnosed at an early age with Parkinson's disease. She became increasingly incapacitated before her early death at the age of 68. This and other considerations led IG (who was 73 during the course of this hearing) to undertake financial planning in 1995.
28. He had qualified as a chartered surveyor and had commercial success when he sold cold storage units which he owned. He had then turned to lending money on second mortgages through 2 companies, Vanbar Securities Ltd and Barivan Ltd. In 1995 the husband's parents had the following assets –

i) Matrimonial home	£350,000
ii) On deposit	£1,000,000
iii) Value of shareholdings in 3 companies	£300,000
iv) Other assets	£100,000
v) Shares and bonds	£45,000
	£1.8m

29. If no steps were taken, the death of the survivor would give rise to a prospective inheritance tax liability of some £600,000. IG wanted to cover this liability through an insurance policy. Accordingly on 12 December 1995 he executed a declaration of trust in respect of an Allied Dunbar insurance policy which he took out for this purpose.
30. The husband had a 20% interest in that policy, each of his 2 brothers 5%, the husband's 2 children 25% and 30%, with the other 2 grandchildren then living receiving 7 ½% each. A week later he and BG each made wills. They each divided their estate in the same proportions as the policy. In addition IG gave his shares in Vanbar Securities Ltd and Barivan Ltd to the husband. The only difference in their wills is that BG did not make this bequest in respect of her shares, quite possibly as a result of an error in the drafting.
31. In late 1998 IG suffered 2 strokes. In January and August 1999 he and BG appointed the husband as their attorney for the purposes of the Enduring Powers of Attorney Act 1985. The deeds gave the husband "general authority to act on my behalf in relation to all my property and affairs. I intend that this power shall continue even if I become mentally incapable".
32. In May 1999 IG further considered his financial affairs. On this occasion he took out 2 bonds with Axa Sun Life after discussions with financial advisors. They wrote a contemporaneous note.

"Discussed gifting and effective will planning, customers however wish to continue to rely on existing provisions made with whole of life policy. Customer's son, PG was present at all interviews and has been party to all decisions made by customers".

33. His parents wished to maintain their standard of living in the event of death or serious illness. "With current provision there would be a major shortfall in both areas if they did not wish to use the existing savings". They had decided not to proceed with further pension arrangements over and above their current pension fund - "they feel they would rather retain access to their capital in case the need came to draw a large sum in an emergency, therefore advice rejected". In the event they took out the 2 bonds, one for £300,000 and the second for £200,000. Both bonds were subsequently realised in January and June 2003 showing small losses.
34. IG wished to buy a bigger property than the bungalow where they were then living. As a result they built their own home in Stanmore. Following the death of his wife, IG sold his Stanmore property for £1.5m buying his present home in Chorley Wood for £1.4m. Both these latter 2 homes enabled him (and earlier his wife) to have living-in help. The cost of this is approaching £50,000 a year.

The history of the property purchases and sales

35. I turn now to the details of the transactions in chronological order. All the properties save the last were purchased in the name of the husband. The first property in Stepney was purchased in November 1999 for £230,000. It comprised a commercial unit with a 2 bedroomed flat above. The husband used the commercial part for his business. The flat upstairs was used occasionally by him and the wife.
36. The Stepney area proved unpopular with the husband's employees. In October 2000 a second property was purchased in Spitalfields for £275,000. In September 2001 a third property at Spitalfields was purchased for £210,000 with a mortgage of some £178,000. It has not been sold. It was valued in March 2005 at £250,000 and is probably worth more now.
37. The second property was sold in July 2002 for £328,000. The same month £207,250 from the proceeds of sale were used to repay the mortgage on the matrimonial home. One of the issues is whether that was a loan or a gift. The balance of some £91,000 was paid into a bank account in the joint names of IG and BG, with a further sum of £29,200 going towards the purchase of the fourth property at Paddington in July 2003 at a cost of £355,000.
38. In July 2004 the first property was sold for £350,000. That sum was also paid into a joint account in the names of IG and BG.
39. Finally in 2005 there was completion on a fifth property at Fulham. Contracts were exchanged in the name of the husband but it was completed in the name of IG for a total cost of £753,000.

Summary of the property transactions

40. Mr Copley has drawn schedules showing the amounts of money concerned. £236,000 was paid in the purchase of the first property, the money coming 56% from BG and 44% from IG. It was sold for £351,000, netting a profit of £115,000. The £351,000 was paid into a joint account of IG and BG in July 2004.
41. The second property was purchased in October 2000 for £275,000 and sold in July 2002 for £328,000, a profit of £53,000. Some £29,000 went towards the purchase of the fourth property and £298,000 was paid into a joint account of IG and BG.
42. The third property was purchased for £214,000 with a mortgage of £178,000. It is now worth about £250,000.
43. The fourth property, was purchased in July 2003 with the total purchase price divided almost equally between IG and BG for £369,000. A mortgage of £99,000 was raised on this property and paid into IG and BG's account. It is valued at £330,000.
44. Finally the fifth property, was completed in IG's name in May 2005. It cost £753,000, £420,000 being paid by mortgage and £333,000 coming from IG and BG. It is now worth nearly £800,000.
45. The total amount of money that came from the resources of IG and BG to make these purchases was £1.219m. If the profit element on the 3 existing properties is added in the total comes to nearly £1.5m. Without that money and repayment of the loan IG would have assets at the moment of £1.7m of which £1.5m would be represented by his home into which he moved in October 2004.

IG's will of 2004 and his statement of July 2005

46. In September 2004 IG made a new will following the death of his wife. He left his shares in the 2 companies to the husband as before. He altered the percentage interests in his estate more in favour of the husband and his 2 children, giving the former 29% and the latter 30% each. The husband was not aware of this new will until it was disclosed in the course of these proceedings.
47. The final act of IG relevant to these proceedings was to produce a statement signed by him on 15 July 2005. He said that he trusted his son to always act in his best interests, he was in charge of dealing with their daily expenditure and investing their monies. He and his wife had agreed to loan monies from the sale of the second property to the husband and wife to repay their mortgage "……..it was agreed that the loan would be short-term but I understand no monies have yet been repaid and I am seeking return of these monies".
48. His solicitor had read the husband's first statement to him about the ownership of the properties. He agreed with the contents of it. He produced a copy of a medical report from Dr Pathmanandam, a psychiatric registrar, of 31 August 2004. At that time IG was found to have difficulties in selecting words, constructing sentences and expressing them. He had understanding for both speech and writing but found it difficult to choose and pronounce words. He was able to make his intentions clear given appropriate time and resources.
49. When asked about the extent of his property he put 2 fingers and stated in London "indicating that he had 2 other properties". This is relied upon on behalf of the husband because at that stage his money had gone into purchasing 4 properties, 2 of which had been sold. Dr Pathmanandam concluded that IG was capable of making a will and had testamentary capacity.

Dr Mahendra

50. He is a consultant psychiatrist who examined IG at his home on 20 September 2005 following the first hearing in August 2005 and 2 months after he made his statement supporting the husband. He was asked to say whether IG had the mental capacity to litigate, how his expressive dysphasia might affect his ability to answer questions across a broad range of complexities, and how his answers should be treated. He concluded that "the most significant new development – a matter probably due to events in recent months – is that he now displays a considerable shortfall in his intellectual powers".
51. He found that it could not be reliably established that IG could understand what was being asked of him. He considered he would be at a very considerable disadvantage being a witness in proceedings. He was not fit to appear as a witness to give oral evidence.

Cash taken by the wife

52. This issue has 2 parts. The first is whether it supports her case that the husband had an undisclosed cash income. The second which I consider later is whether this conduct should affect the wife's claim to ancillary relief. It is part of the wife's case that the husband kept substantial sums of money round the house from the time that they started living together.
53. There is no dispute that the wife took £7,000 in June 1997 and £15,000 in September 1997 without telling the husband. She then deposited 2 cheques in November 1997 and January 1998 for some £5,200. Starting in March of 1999 she deposited cash in the same account until January 2004 in over 80 separate transactions. The amounts ranged between about £30 and £1,100. The sums virtually stopped in January 2004. By then, deducting some £9,000 for interest but adding in £10,000 by way of expenditure, the wife had paid in a further £27,000 making a total of £52,200 that she had taken.
54. It is common ground that the wife never disclosed these removals to the husband nor that she was paying such substantial sums into a building society account in her maiden name. She relies upon this as evidence that the husband had substantial cash earnings by way of sums of money round the house, so much that he never missed the money that she was taking.
55. The husband says that he was aware only of the initial loss of £22,000. He confronted the wife not to accuse her but to try and find out what had happened. He had to declare an extra dividend of £30,000 that year to cover the loss of the £22,000. The wife gave by way of explanation that she put it away for a rainy day, lots of women did it. The husband accepted that he had about £1,200 a week in cash to pay his parents' helpers and he otherwise kept between £3,000 and £5,000 there.
56. I find that the wife was asked about the initial takings of £22,000 generated at a time when the husband had considerable cash from the sale of Euro 1996 tickets. She deceived him about this. He was not aware she took a further £30,000 over 6 years, peaking between about March 2000 and March 2001 when some £12,500 was paid into her account.

Decisions

57. The examination and cross-examination of the husband and the wife took longer than expected. This was in part because the relevant documents, inevitably few in number, were dotted across 13 lever-arch files in a random and unhelpful way. The evidence concluded at lunchtime on the fourth day. I appreciated that if submissions were to be completed there would be a marked saving of time if the question of the gifts and the loan were decided first of all. Accordingly I suggested to counsel that they address me on the afternoon of the fourth day on that issue alone. I would give a decision if I felt able to do so at the conclusion.
58. With agreement this course was followed. I announced that I was not satisfied that the sums claimed by the wife as gifts to the husband and used for the purchase of the properties and repayment of the mortgage were gifts. I did not give reasons at the time.
59. On the fifth day the question of the costs of the 2 interveners totalling some £50,000 arose. Again it was clear that if the issue of whether that sum was claimable (and against whom) was resolved once more submissions could be shorter. Accordingly at lunchtime on the fifth day after submissions I held that those costs were the responsibility of the wife.
60. On the afternoon of the fifth day I heard short final submissions based on what capital and income the wife should receive. In the light of my decisions these did not take into account the value of the properties. There was added to the liabilities the need to repay IG the cost of the mortgage on the matrimonial home. I reserved judgment at the conclusion.

Argument on money used for the purchase of the properties and the repayment of the mortgage

61. Mr Johnstone took a series of points in support of the wife's case that the money used by the husband was a gift from his parents. I list them in no particular order as follows.
62. After the power of attorney had been made, IG sold his home, A, purchased and sold B and purchased his final property C all in his own name. This is to be contrasted with the 5 properties purchased, 2 of them sold, all of which, including mortgages, were in the name of the husband save for the last one. The distinction supports the view that the money used to buy the properties was a gift to the husband.
63. The husband in answer accepts the facts. He knew that under the power of attorney he could buy and sell property using his parents' money carrying out the transactions in his own name. It was different where the purchase and sale of his parents' own home arose as was to be expected.
64. The second point relates to the position of Mr Lawson, a solicitor from Harvey and Marron of Newcastle who acted in the property transactions. Prompted by a letter from the husband he wrote in September 2003 that they had acted on behalf of the husband in respect of the property transactions on the understanding that they were carried out by him as attorney for his parents.
65. However they wrote to the Official Solicitor in February 2006 saying that at the outset they were not aware that the husband was operating as an attorney. They were only informed at a later stage. They were unaware of the source of the funds. This shows a shifting of position by someone who must have known from the beginning if the husband was truly operating under a power of attorney. The fact that he did not is because the husband was in receipt of gifts.
66. The husband contends that Mr Lawson did know what the true position is. He cannot account for the different answers but no adverse inference is to be drawn. He points out that the first 2 conveyancing files are no longer in existence. They might support his contention.
67. Next Mr Johnstone points out that the mortgages on the properties to which I have referred were all taken out by the husband. There is no reference to him acting under a power of attorney, he took on liabilities, he disclosed his income, and led the building societies to believe that he was the true owner. He would have only so acted if this was true.
68. The husband accepts the facts. He denies that this inference was to be drawn. He points to the letter from his bank manager confirming the difficulties created when he made apparent that he was acting under a power of attorney as support for this. It was simpler to act in this way. It is not an indicator that the properties were his.
69. Then it is pointed out that the rent paid by X Ltd for the occupation of the first property and later the second property was not paid to his parents, the income is not shown in their income tax returns for the relevant years, and no capital gains was paid by them on sales. That is precisely what would be expected if the husband was the owner of the properties.
70. The husband again accepts the basic facts. I am now satisfied that the income was accrued and was finally paid to the parents and that they have belatedly declared the capital gains tax arising. Any inference adverse to the husband can be drawn if this delayed action was to bolster the husband's case.
71. The next point relates to the late BG's half share in the first property. On the sale the money did not go to her but to IG. If she had retained an interest the money would have gone to her. This too supports a gift to the husband.
72. The husband's explanation is that the money was urgently required on the fifth property. Instead of going to his mother as it should have done, there was a risk that the money already deposited would be lost if further money was not paid immediately. Appropriate adjustments will be made to reflect the true position. It is no evidence of a gift.
73. In relation to the mortgage repayment by the parents, it is said by the husband to have been a loan for a year. But Mr Johnstone points out there are no documents in relation to it, no charge, no loan agreement, no agreement about the interest to be paid and a year later it was not repaid nor has it been since then. All the indications are therefore that it was a gift.
74. The interest calculations arising are no more than a stab in the dark by the accountant who calculated it first at 4.75%, 0.75% above base rate in July 2003. In September 2004 the same accountant said that it was 2% above base rate. It is further support for the conclusion that this was a gift.
75. The husband says it was a temporary loan. He accepts that he did not agree interest with his father. The conversation with the accountant was in July 2003, almost exactly a year after the repayment of the mortgage was made. His discussion then about the rates of interest was before there was any question of divorce. It shows that this was not a gift. Though the money did come from the sale of the second property that was not his property.
76. It is said next that the husband was manoeuvring in the period before the divorce to try and bolster his financial position at the expense of the wife. He admitted writing to a solicitor in September 2003 bearing in mind the prospect of divorce; this was long before his divorce petition in June 2004. The husband again accepts writing the letter but there was no tactical manoeuvring by him.
77. There is an added impetus for the purchases and loan to be regarded as gifts by reason of the presumption of advancement. Finally it has to be remembered that the husband is a beneficiary under his father's will. On the present and probably last will he is a 29% beneficiary. A gift to a expectant beneficiary is much more likely.

Conclusion

78. I have considered the position of the husband and his father going back to 1995. I have placed considerable weight on IG's decision then to take out an insurance policy and thereafter to pay premiums on the basis that this would meet the likely inheritance tax liabilities. That is inconsistent with him later making very substantial gifts to his favoured son of a large part of the money on which he was paying premiums unless he had a marked change of mind. Premiums have continued to be paid even though, if a gift, there would be a diminishing liability on a potentially exempt transfer. There is no evidence of a change of mind, quite the contrary.
79. I have also relied upon IG's rejection of the suggestion that he should make gifts in his lifetime when discussing his financial arrangements in 1999. He wanted to live in a large house. He knew that the costs of full-time care were going to be very heavy. Those aims would be totally defeated if he and his wife then made the gifts claimed to the husband. He would run out of money to make those payments in a few years unless he sold the home to which he moved less than 2 years ago. I regard both of those matters taken together as decisive.
80. In addition I have on this aspect of the matter accepted the evidence of the husband. It is supported by the points above. It is also added to by IG telling Dr Pathmanadam in September 2004 correctly that he had 2 properties in London. That again is decisive both in relation to the purchase of the properties and the loan made to repay the mortgage.
81. There are further points supportive of my decision. The wife relies upon no direct evidence at all. This is significant. There was nothing said to her by the husband or his parents or by any solicitors or accountants that lends credence to her belief. It is no doubt why she alleged that the husband had sufficient assets of his own to buy the properties. Only when that was demonstrated to be incorrect did she have to change her account to allege that the parents in law funds were gifts to the husband – an allegation persisted in despite all the evidence to the contrary.
82. I find that there was a trusting relationship between father and son. The husband accepted that his father could at times be difficult, but he holds him in high regard. He was at all times acting for his parents with their money, keeping separate accounts for each of the properties, and making repayments to them.
83. Had I not been wholly satisfied by the matters to which I have referred above as I am, I would have been persuaded by the action of the husband in paying the proceeds of sale of the first property and a substantial part of the proceeds of sale from the second property in to a joint account in the names of IG and BG. Those actions are wholly incompatible with a gift to him of the money that led to their purchase.
84. I have borne in mind the points made by Mr Johnstone about the father's credibility, his blaming others for any mistakes, his alleged manoeuvring in 2003, and the income tax and capital gains tax returns. I have also had to consider the weight to be given to IG's statement in July 2005. In the light of Dr Mahandra's conclusions 2 months later that must be reduced. However I bear in mind that his solicitor felt able to put it forward on his behalf at that time.
85. My conclusion is that whilst it lends support to the decision I have otherwise clearly reached I do not regard it as decisive. I do consider it supportive both on the property purchase and the loan. But there is abundant evidence to reach my finding without that support.
86. Finally I consider briefly the law as it applies to 3 different aspects of this topic. First of all there is the presumption of advancement raised by Mr Johnstone in support of the wife's claim that the sums used by the husband to purchase properties and the loan were gifts. Secondly I consider in outline powers of attorney. Thirdly I refer to the topic of undue influence raised by the First Intervener as a defence should the wife succeed on her claim that the sums and the loans were gifts.

The presumption of advancement

87. This does not arise under my findings of fact and conclusions above. I mention it for completeness. The short explanation for the purchase of the properties in the name of the husband as I have accepted is that he was acting under the power of attorney to which I shall shortly come.
88. It is based upon the concept of what happens when property is transferred between 2 persons with no evidence of the intention at the time –

"Where there is not, the law applies presumptions. Where there is no close relationship between A and B, there will be a presumption that A does not intend to part with the beneficial interest in the property and B will take the legal title under a resultant trust for A. Where, however, there is a close relationship between A and B, such as father and child, a presumption of advancement will apply".

Lord Phillips of Worth Maltravers in Lavell v Lavell (2004) 2 FCR 418).

89. I have determined the intention of IG and his wife from what they said to financial advisors, the grant of the powers of attorney, the evidence of the husband, the accounts and the other matters to which I have referred. All that followed was one logical sequence. There are the forensic points made by Mr Johnstone. The presumption is readily rebutted in this instance on the facts and my findings. There is abundant evidence of intention at the time. A presumption which could otherwise arise does not therefore fall for consideration.

Power of attorney

90. As Mr Copley set it out in his skeleton argument, the Powers of Attorney Act 1971 gave statutory recognition to common law powers of attorney. Section 7(1) allowed the donee of a power of attorney to execute any instrument with his own signature and do any other thing in his name by the authority of the donor of the power. If he did so, it was as effective as if it had been executed or done by the donor of the power.
91. The Enduring Powers of Attorney Act 1985 enabled the donee to act not withstanding that the donor had become mentally incapable. It is subject to safeguards in particular registration with the court when someone does become incapable of managing their affairs.
92. I am wholly satisfied that all the transactions which I have had to consider were as a result of the husband acting bona fide under the power of attorney granted by his parents. It entitled him to act in his own name. That saved trouble and inconvenience. He was entitled to do so. The only problem was that it raised the wife's unjustified suspicions.

Undue influence

93. In April 2006 the Official Solicitor made it clear to the parties that this was a defence upon which he was relying on behalf of IG. It has been a point also accepted rather unusually by Mr Copley on behalf of the husband.
94. It follows the House of Lords decision in Royal Bank of Scotland plc v Etridge (2) (2002) 2AC 773. As Mummery LJ explained in Niersmans v Pesticcio (2004) EWCA CW 372 -

"……. The basis of the court's intervention is not the commission of a dishonest or wrongful act by the defendant, but that, as a matter of public policy, the presumed influence arising from the relationship of trust and confidence should not operate to the disadvantage of the victim, if the transaction is not satisfactorily explained by ordinary motives. ……….the court scrutinises the circumstances in which the transaction, under which benefits were conferred on the recipient, took place and the nature of the continuing relationship between the parties, rather than any specific act or conduct on the part of the recipient. A transaction may be set aside by the court, even though the actions and conduct of the person whose benefit from it could not be criticised as wrongful."

95. If I am incorrect in finding that there was no gift either in respect of the property transactions or the repayment of the mortgage, I consider undue influence shortly. Here the position is clear making the necessary assumptions contrary to my findings above. BG's health was deteriorating through Parkinson's disease. IG had suffered significantly from the effect of 2 strokes, mentally and physically. They depended on the help and advice of their favoured son, the husband. It means they made gifts to him of most of their free capital other than the matrimonial home, when the round the clock care which they wished to have in their own home was costing nearly £50,000 a year. This clearly falls within the category I find where one party has acquired influence over others who are vulnerable and dependent.
96. It could not be reasonably accounted for even between a father and son where the gift is so large as in this instance (see Lord Nicholls of Birkenhead in Royal Bank of Scotland at paragraphs 13, 14, 18 and 22). In my judgment transactions of such a magnitude as this given his parents' means call out for an explanation. If I had found it was a gift, the fact that PG is a beneficiary under the will would not have been a sufficient defence. The gifts exceed by a large margin the amount of his expected inheritance. In my judgment the defence would have succeeded and the transactions would be set aside as rather unusually the husband accepts if contrary to his evidence the money was held to be gifts to him.

The costs of the Interveners

97. The background to the parties' submissions is as follows. When the matter came on before District Judge Davies in the Watford County Court on 15 August 2005, instead of a final hearing, the proceedings were transferred to the High Court. Two matters in particular had arisen. First of all the husband was still an executor of his mother's estate which was invited to be an intervener in the proceedings. Subsequently he relinquished that position because of the potential conflict of interest.
98. A directions hearing was fixed for October when the court was to consider whether or not IG should have a litigation friend. The wife's application for a production of the probate file of BG was adjourned and the respondent husband was ordered to pay £750 of costs to the wife. A letter setting out the effect of the power of attorney if needed had been sent to the wife's solicitors with an explanation in December 2004.
99. The wife had unsuccessfully opposed the application for the estate to intervene. This is important because it was at a time when Mr Johnstone tells me the costs of the husband and wife were £160,000.
100. On 5 October 2005 in the light of Dr Mahendra's report, Coleridge J. invited the Official Solicitor to appear for IG. There was a hearing before Hedley J. on 6 February 2006. By that time 2 partners in the firm of Longmoors had been appointed personal representatives of the estate of BG in substitution for the husband. The husband's power of attorney in respect of his father had been registered in the meantime with the Court of Protection.
101. At that time BG's estate was resisting disclosure of documents between them and their legal advisers and counsel. Mr Johnstone on behalf of the wife argued that there was no relevant legal context for this prior to the invitation to intervene. That argument did not prevail.
102. Hedley J. pointed out that the husband would want to reflect on the implication of his judgment upholding legal privilege. It was most unlikely that he would be allowed to make use of the documents even to rebut an inference of beneficial ownership. In the event there was disclosure of the relevant files. This, Mr Johnstone argues, makes a nonsense of the husband's and the estate's resistance at the hearing before Hedley J.
103. He had on behalf of the wife had made clear his position before Hedley J. in that the order recorded that the wife –

"Continues to maintain her position that the First and Second Interveners should not fully participate in the litigation and that they should not look to the applicant for the costs of any such application."

104. Before me Mr Johnstone argued that just because there was liberty to intervene it did not mean that this was necessary. If for instance the only reason was to make sure that the husband continued to say that they were not gifts, this was not sufficient to merit their attendance and he should pay the costs. Furthermore the introduction of undue influence in April added nothing. The case on this had not been put to PG in evidence; it could well have been done by written submissions rather than appearing and being represented as the First Intervener was. The costs of the Interveners he accepted had to be met only in so far as they were reasonably incurred.
105. Mr Geadah and Mr Copley between them resisted these arguments. In my judgment they were right to do so. With the Official Solicitor maintaining the same position as the Second Intervener on the question of gifts, the Second Intervener could properly rely on the written submissions on costs which I have seen.
106. In them it is pointed out that they should not in any circumstances be liable in costs. The solicitors for the Second Intervener had written an open letter to all the other parties on 14 March 2006. They had pointed out that if the wife was successful, then the specific dispositions made by BG in her will would be prejudiced. No objections were taken to their participation on costs. They claimed costs from the wife in the event that her claim failed.
107. I am satisfied that the limited though inevitably costly role played by the Second Intervener was necessary. Their voluntary limitation of participation to written submissions was sensible and cost saving. Anything further that was needed to protect the estate's position would be covered by the representations on behalf of the Official Solicitor.
108. I also conclude that the Official Solicitor, having set out his position in a statement and taken the point on undue influence, was properly represented and participated in the hearing before me. It was not a question of monitoring the husband. There was a question that either in his answers or by virtue of submissions the wife's claim could succeed on the question of gifts. If so there was then the defence of undue influence.
109. So clear was the position that, had I held that the husband did receive these sums as gifts, the defence of undue influence was highly likely to succeed. It was not one which could be properly argued on behalf of the husband himself even if it was said that he had not been blameworthy. The wife's position was unequivocal. The sums of money and the loan were gifts. There was no undue influence. Faced with this uncompromising stand the presence of the Official Solicitor was necessary. It was entirely reasonable for him to be represented.
110. I find that the First and Second Interveners were properly joined to the litigation. They could not reasonably leave the litigation (which they were compelled to join because of the wife's allegations) without their costs being met. I can see no reason why they husband should be held liable for their costs when the wife's claim failed. Accordingly I held the wife liable.
111. I was not persuaded by Mr Johnstone's submission in relation to the hearing before Hedley J. As Mr Copley pointed out, the personal representatives as Second Interveners were fully entitled to rely upon legal professional privilege.
112. Hedley J. had to decide whether the advice related to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it did not then there was no privilege. If it did, the question was whether the occasion and the purpose such as to make it reasonable to expect the privilege to apply, (Lord Scott, Three Rivers DC and others v Bank of England (6) (2005) AC 610, at 651). He pointed out that Mr Johnstone's argument which in effect drew a distinction between the estate and personal representatives as clients was not a real one and was in any event likely to fail.
113. The real difficulty for the husband and the personal representatives was that if there had been no disclosure it was quite plain that Mr Johnstone would invite the court to draw adverse inferences. Faced with that, the question of privilege was re-visited but only to save costs because of the potential adverse arguments on behalf of the wife at the hearing.

Final submissions for the husband

114. Mr Copley on behalf of the husband made a number of preliminary points. First of all with the Official Solicitor acting as litigation friend and executor for BG's estate, there is no question that the loan on the matrimonial home could be regarded as a soft debt. Next, there is no evidence that the husband intends to move in with his father. If that did happen it could have repercussions later so far as the litigation is concerned.
115. The husband's company only has value because of the income it produces. It could not be sold to a third party for any substantial figure. It is the husband's only source of income. It did have £97,000 in the bank, but £25,000 was paid the week before the hearing for legal expenses. Three Standard Life policies for £75,000 have gone on legal costs. £1,700 per month with child benefit is his income – his list of expenses should be regarded more as wish-lists than reality.
116. The costs of school at £10,500 per month it is hoped is going to be paid on behalf of IG if there is an order from the Court of Protection. Any order by the court should be explicit on the question of payment of school fees. The husband has been spending assets and borrowing to survive.
117. The mortgage could not be afforded in July 2002 hence the need to borrow from his parents. Whatever income he has is still not enough to meet the mortgage and the needs of the children.
118. Mr Copley argued that the taking of cash by the wife strikes at the heart of the marriage. The husband would never have gone ahead with such a ceremony if he had known that such a deception was going on. Any award to the wife should be discounted accordingly because it was conduct to which the court must have regard. It cannot be ignored.
119. The husband needs the greater proportion of the remaining capital to house himself and the 2 children. £425,000 is needed. Once the case is over the wife's health will be restored. As she said there are a lot of agencies to which she can apply for employment. There is no ability on behalf of the husband to pay maintenance. It would have to come from capital.
120. The question of adjourning the lump sum as sought by the wife should be resisted. There has to be an end to the litigation. A clean break is needed given the history of the matter.

Final submissions for the wife

121. Mr Johnstone pointed out for the wife that this was a ten year relationship and a 7 year marriage. There was no room for a discount for a short marriage. Her reasonable outgoings are £2,400 per month. She hopes to earn. However, looking at her doctor's report, two years before she can do so on that report is optimistic. With no qualifications she can never approach the level of what she would have earned nor that of the husband. She had given up work to look after the husband's children.
122. School fees will now be paid. He has an equivalent income of £3,230 per month and the wife can rightly claim £1,750 being about half of this for 2 years, less thereafter. The father's estate is £1.5m plus £2.3m which leaves the husband's inheritance at £670,000. The lump sum should be adjourned, see Re: G (Financial Provision: Liberty to Restore Application for Lump Sum) (2004) EWHC 88 (Fam).
123. There is no scope for conduct to be taken into account. It cannot be said that it was so inequitable that it cannot be ignored. There is much less scope for a negative approach in a modest case which essentially is needs driven. In any event the conduct is not of such a magnitude as to reduce her claim for ancillary relief. The husband says that the marriage broke up because of her refusal to repay the loan to his parents. However the contents of his petition shows that this was not relied upon.
124. If the lump sum is not adjourned then the husband's assets are some £570,000, a half is £285,000 and she has no mortgage capacity. A sum of £370,000 to £425,000 is sufficient to house the husband. He can get an interest free mortgage for £100,000. The husband with £200,000 could re-house himself and the children with a mortgage of £170,000 leaving £370,000 for the wife. That is the right order.

Adjournment of the lump sum

125. This was the case facing Singer J. in Re: G. But it arose from a prior agreement between the parties at a time when there was no capital available. Despite this Singer J, whilst agreeing that such adjournments have been granted, regarded it as uncommon. He pointed to an earlier decision of Connell J in D v D (Lump Sum: Adjournment of Application) (2001) 1 FLR 633 where he had held that this step "should only be taken in rare cases where ……… there are circumstances in which justice to the parties can only be done if there is an adjournment".
126. I have borne in mind that IG at 73 if in good health has a life expectancy of some 12 years (see 'At a Glance'). I discount this to give allowance for the strokes he suffered though that was 8 years ago. I also bear in mind that short of an unusual recovery he has probably lost the ability to alter his will. Furthermore the husband's inheritance will be significant.
127. Nevertheless I reject the question of dealing with the property adjustment order and adjourning the lump sum claim. It is artificial and akin to an interim lump sum.
128. It is unfair on the husband to defer a decision. He is left in the unknown when there is capital presently available. But the strongest factor is contemplation of further litigation. The profligacy of the litigation so far makes that consideration a most potent factor which must be avoided unless there is really no alternative. It could only be avoided if it was both the right course and a fixed percentage could now be assessed of the prospective inheritance.
129. However the essence of such an adjournment is the opportunity to look at the situation of the parties at the time of the inheritance not at this time. The scope for argument is obvious – in this case it might fairly be regarded as a certainty. That is not to be contemplated if it can reasonably be avoided. I consider it can. For all those reasons I rule against an adjournment of the lump sum.

The husband's present capital and income

130. I find the husband's capital is as follows. The matrimonial home in joint names is worth £463,000, net of charges and cost of sale. There are 2 additional loans of £32,000 to be deducted leaving £431,000. There are other assets. The husband has pensions totalling £62,000. He has an inheritance from his mother's estate of £73,000, there are 2 insurance policies totalling £15,000, and company assets of £97,000 less £25,000, £72,000. I consider that to reduce the £72,000 by a further £20,000 is possible without jeopardising the company. The husband has debts including costs of about £6,000. Thus the husband's capital is, less pensions, £533,000.
131. The husband owes some £4,000 in costs. The wife owes £85,000 in respect of her costs, adding in the Intervener's costs takes this to £144,000. There will be nothing available for housing until this sum has been paid.
132. I propose to transfer the pensions to the wife. I shall give no corresponding credit to the husband. His pension can properly be regarded as coming from his inheritance when this falls due.
133. I have to have regard to the husband's 2 children who are living with him. They will continue to need accommodation for some years. He is working from home. If he does not have sufficient space he will have to rent offices thereby reducing his income. He has a mortgage capacity. He can with his expectations afford to borrow, paying interest only. Mr Johnstone puts his mortgage capacity at £100,000. That is more realistic than the £170,000 capacity he later claimed. For reasons to which I shall come I do not regard that as unreasonable.
134. At this time the husband's needs are greater because of his children which is my first consideration and the reasonable need to work from home. He has a mortgage capacity. I cannot award the wife a greater sum because she has spent so much on her own costs and incurred a liability to pay the Intervener's costs. Had costs in this case more properly totalled say £30,000 each, the whole capital position would have been transformed. Both parties could have been re-housed adequately.
135. Mr Johnstone argues that to the husband's assets should be added:

i) The pension fund,

ii) £13,000 to represent 2 motor cars and number plates, and

iii) £95,000 in respect of costs paid.

I exclude the first as it is going to the wife and it is balanced against the husband's expected paternal inheritance. Time restraints prevented argument on the second, but the wife is to have one car. I do not consider that any addition to the assets is established.

136. The £95,000 is not in my judgment to be taken as an asset. The money has been spent. The wife owes £120,000 in total in costs. That is a debt. I do not balance one against the other nor do I regard a failure to do so as disadvantageous to the wife. The reality is that the husband has been able to pay most of his costs, the wife has not. The available assets are diminished by the husband's costs outstanding, they are not added to by what he has paid or the wife owes.
137. I have to consider the lump sum claim bearing one further factor in mind. The husband claims that it should be reduced by the duplicitous conduct of the wife in taking cash from the husband. Had he known that she was behaving in this way he would not have married her.
138. I am not moved by that claim. I do not see that conduct not discovered until after a marriage has ended can be used to say that there would have been no marriage if known at the time. If it has significance it is because it began before the marriage, continued afterwards, and was not only deceitful but substantially enriched the wife over a 5 year period.
139. Is this conduct which it is inequitable to disregard under s.25 of the Matrimonial Causes Act 1973? Firstly it was disclosed by the wife without prompting. A substantial proportion has been paid on account of costs. If it were in existence it would be taken as part of the wife's assets. I deprecate the wife's conduct. I bear in mind the scale and time over which it was done. Mr Johnstone argues that where a case is as needs driven as here, there is less scope for conduct even if it were inequitable to make a difference. There is some merit in that.
140. In the absence of time to cite authorities, I have reminded myself of passages in Duckworth on Matrimonial Property & Finance covering instances where the court has and has not acted in different situations. None are similar to this.
141. My conclusions are as follows. Deceit of this kind is capable of being regarded as inequitable. The longer it is practiced and the larger the sum the more likely it is to be regarded as inequitable. An additional factor is the situation here where there is no money left which can be regarded as part of the wife's assets. Given the relatively modest assets of the parties it has made me consider the matter with greater care. It is close to the borderline but I have not finally been persuaded that I should discount the wife's claim. It was less than 1/10 of the total assets, it ceased before the marriage came to an end, it was readily admitted, and it was substantially used to pay costs. On balance I am not satisfied I should give a discount to the wife's claim.

Undeclared cash income

142. The preliminary questions I have to answer are as follows –

i) Has the wife shown that during the marriage and since then the husband has had income in excess of his declared earnings for the last 4 years of £25,000 a year? The husband accepts that his expenditure was greater than his income. He says he met the difference from his resources. The wife says it was from cash generated from his travel business.

ii) Has the wife proved that he will continue to benefit from undeclared cash drawn from his business?

143. I consider the evidence. Once there is an acceptance of expenditure exceeding income, the issue of undeclared cash becomes more difficult. It would take a vast and unjustified exercise to try and trace what income was coming in and what if any assets were sold to meet expenditure. What is left are a number of factors not in dispute:

i) In November 1997 and January 1998 the wife deposited a total of £5,250. Given that it was 8 years ago I substantially discount its effect.

ii) Over 5 years ending to January 2004 the wife made 80 deposits of cash into her account of £27,000, or £5,400 per annum on average. The average is distorted by the fact that in the year to March 2001 (5 years ago) £12,500 was taken.

iii) The husband accepts he had significant sums of cash in the house. He says £1,200 a week to pay his parent's helpers and £3,000 to £5,000 otherwise. He now has no cash in the house.

iv) The explanation for the cash is the need to pay builders when alterations to the house were made. There is evidence that alterations were undertaken.

v) The husband's business has been in decline. Turnover has more than halved in the last 5 years of accounts, expenditure has been reduced in the same period by 2/3rd. If there has been undeclared cash, the scope for its continuance is reduced.

144. The onus of proof is on the wife. The more serious the allegation of undeclared income the more cogent must be the evidence to establish the wrongdoing. I have come to the following conclusions.
145. I do not accept that a husband earning £25,000 gross (or less than £22,000 net) would not miss the removal of an average 25% of his net income, peaking at more than that. It defies belief. Building work did not cover the whole period, and there has been no other explanation for having such substantial cash sums available over what was needed to pay his parent's helpers.
146. Whatever the scale of the cash may have been, I accept there has been a reduction in the husband's business. I expect that given his energy and with this litigation at an end, his business is likely to improve. It will take time and is wholly dependent on his determination remaining at the same level as before. Whilst a party who has misled the court may not have a justified criticism if the court errs in its assessment, I must proceed with care.
147. I have come to the conclusion that I should credit the husband with a greater income than he has accepted. I allow for the business downturn. But I do not consider I have heard the whole truth from him. I deduce that there is extra income which I put at £5,000 a year now, it was greater before. I shall presume that this will be declared for tax purposes in the future. I then consider the parties' needs and obligations and all the matters set out in s.25(1) and (2) of the Matrimonial Causes Act 1973.
148. I take into account first of all the husband's obligations to his children. This impacts on both housing and income. There is a need for him to have enough accommodation for both him, separate bedrooms for his children, and a room to act as his office. Whilst it would be desirable for the wife to have two bedroomed accommodation, if the means are not there one bedroomed accommodation may have to suffice. The fact that but for the reckless expenditure on costs this exercise could have been achieved is the final sadness in a long and ultimately tragic history.

Lump sum order and periodical payments

149. I take into account the husband's mortgage capability which I consider is £100,000 on an interest only basis. I consider the just solution to reflect the greatly diminished assets is to award the wife £220,000 or 41% of the capital. That leaves the husband with £330,000 which with his mortgage capacity will give him a prospect of achieving the accommodation he needs for himself and the children.
150. The resulting sum for the wife of less than £100,000 after costs may well not be enough for a 1 bedroomed flat. That I have had to accept as the grim reality of the position today. The husband's needs in relation to housing the children and providing an office for him to generate his income allow for little alternative despite the wife's well founded need for housing for herself.
151. I look at the husband's income. He is presently ordered to pay the wife £650 a month, £7,800 a year. The wife's state of ill health I regard as serious. This is not a question of her being fit for whatever work she can now do in a few months. The level of maintenance now and the extent to which it should reduce are difficult to decide. It is not helped by the wife's unrealistic arguments. It is a reflection of this case that it is in the High Court with resources now as modest as I have determined. The husband has to provide for his 2 children at the most expensive time of their upbringing. On his income even as I have held it is barely enough.
152. The report from her doctor in March 2006 is in stark terms –

"I have known SG as a GP since 1987.

I have never seen her looking as unwell physically and mentally as when I met her on 14.3.06. She is looking pale, grey and gaunt. Her mental and physical state is very fragile, she is tearful and very stressed. She is not able to sleep or eat. She is getting frequent panic attacks and is not coping with life. She is living with her parents who are very supportive. Despite this she is in a terrible state, she has also lost a lot of weight. The foremost reason for this is the extraordinary stress placed on her by her divorce proceedings and the delays in reaching an equitable settlement.

I am very concerned about her mental state. I do not believe she will be better mentally and physically for many months or years after a divorce settlement. I cannot foresee her working for at least 1 – 2 years at the earliest. She will need this time to rebuild her self confidence, regain normal eating and sleeping patterns, exist as a normal functioning human being.

Her current medication include Propranolol to stop panic attacks and palpitations, Pantoprazole for heartburn and Ensure drinks to help rebuild her physical state."

153. I see no reason to question that assessment. She has been out of the job market for 10 years. She has no special skills. She will have to start at a modest level.
154. She will need determination and courage to restore her self-confidence and her health. Judging by the way she gave her evidence and given the low state she is in at the moment, I consider she will successfully master her present difficulties which I do not underestimate.
155. She is intelligent, articulate, and has a natural poise and dignity. Given the determination which enabled her to give evidence when under considerable stress, I consider with her obvious social skills she would, with health and self-confidence returned be an asset to any business whether in internal organisation or dealing with the public.
156. She puts her earning capacity at £10,000 a year. That is too low. I have considered the levels of pay set out under Office Salary Survey in 'At a Glance'. I consider she would soon after starting employment be earning about £15,000 and be likely to achieve before she is 50 years old earnings closer to £20,000.
157. She needs income until those earnings are achieved which I do not consider will start for some 18 months. It is said that the husband's earnings do not allow for payments even of the £670 presently ordered. I consider there should be an order for a period of 18 months and a reduced rate for 2 years thereafter. That makes an allowance for an inability to return to work before then. Once in work her entitlement will soon be extinguished.
158. The husband may find it difficult to make these payments. But I shall order periodical payments at £500 per month for 18 months and £300 a month for 2 years thereafter. She will also have the pension fund. She will transfer her shares in X Ltd to the husband. I shall leave counsel to draw the order resulting from this judgment. If costs are in dispute a further hearing is regrettably necessary.