Damian Garrido QC, Fiona Hay and Michael Gleeson in successful defence of Part III financial remedy claim

7th Nov 2018 | News

Mrs Justice Roberts handed down judgment yesterday in the case of NN v AS & Ors – [2018] EWHC 2973 (Fam).

Damian Garrido QC and Fiona Hay, representing the respondent husband and instructed by Afsana Akhtar of Abbey Law; and Michael Gleeson (led by Tim Amos QC of QEB) representing the second, third and fourth respondents and instructed by James Stewart of Penningtons Manches, were successful in defending all claims of the applicant wife in a Part III claim for financial relief after an overseas divorce and post nuptial settlement.

The wife’s main application under the Matrimonial and Family Proceedings Act 1984 was founded on her assertion that the husband had world-wide assets of some USD100m; and focused on 3 London properties and a yacht moored in Egypt all in his sole name (together worth some £8m). She sought to be released from the terms of an earlier agreement reached in Egypt on the grounds that the agreement was not Radmacher compliant.

In March 2018, approximately a year after proceedings were issued and after an unsuccessful FDR, the interveners – the husband’s father and his two sisters – were joined so that they could assert their claim to the beneficial ownership of the properties and the yacht which were the subject of the claim. Specifically, the husband’s father (the second respondent) asserted that the most valuable property (a mortgage-free Central London luxury apartment worth some £5.8m) and the yacht were both held by the husband for him on trust absolutely. The third and fourth respondents (the husband’s sisters) asserted that the two other Central London properties were held on trust by the husband for himself and his sisters in equal shares.

The husband, his father and his sisters were members of a highly successful Egyptian family who all attended the 10-day final hearing before Mrs Justice Roberts in July.

The applicant wife argued that the trust instruments adduced in evidence by the respondents were procured by forgery, alternatively were sham documents. It was further argued that the documents’ metadata was manipulated to falsely show a contemporaneous date of creation. W contended that the respondents’ professional advisers (Egyptian lawyers and accountants) were involved in a conspiracy with the respondents to hide the true beneficial ownership of the London properties.

Mrs Justice Roberts heard oral evidence from all 5 parties, from a hand-writing expert and some of the parties’ professional advisers; and considered issues of gifts, express, resulting and construct trusts in addition to issues relating to the Egyptian agreement. She considered the case of Zimin v Zimina [2017] EWCA 1249 and in particular the impact on the wife of her the costs of the litigation. She upheld the interveners’ defence of their assets and made an order in the terms of the husband’s open proposals which formalised the terms of the Egyptian agreement. She found that where an agreement was Radmacher compliant it was not a legitimate use of the court’s powers “to make good any deficiency in the calculation of future needs in order to address a shortfall which has arisen as a result of litigation costs”.

The judgment can be read here.

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