AP v BP & Ors (financial remedies - s37 application to set aside disposition)
[2023] EWFC 170 (B)
AP v BP & Ors (financial remedies - appeal - disclosure - privilege)
9 March 2023
[2023] EWFC 169 (B)
Family Court
A wife secretly gave away shares to get help with a lawsuit against her husband. A judge said it was secret legal stuff, but a higher judge said it was a business deal, not protected, so the husband gets to see it. The husband won and gets his legal costs paid.
Key Facts
- •Husband and wife married in 2002, separated in 2017, with ongoing financial remedy proceedings.
- •Husband is a media personality, founder of Company A.
- •Company B, holding Company A's income, had wife holding 70% shares, husband disputes her involvement, claiming shares held for his benefit.
- •Intervenors invested in Company A/B, agreement for ownership transfer at £5 million valuation.
- •Wife secretly transferred shares in Company B to intervenors post-separation, without husband's knowledge.
- •Wife's actions led to intervenors gaining control and launching litigation against the husband.
- •Husband applied for disclosure of wife's agreement with intervenors, and to set aside share transfer under section 37 of the Matrimonial Causes Act 1973.
- •District Judge ruled agreement privileged; husband appealed.
Legal Principles
Appeal allowed if the lower court's decision was wrong or unjust due to procedural irregularities.
Family Procedure Rules 2010, rule 30.3(7)
Litigation privilege requires: (1) litigation reasonably contemplated; (2) dominant purpose of communication was for legal advice or evidence gathering; anxious scrutiny of evidence.
Starbev GP Ltd v Interbrew Central Euuorpean Holding BV [2013] EWGC 4038 (Comm)
Documents brought into existence for the purpose of conducting litigation, passing between client, lawyer, agent or third party.
WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652
Section 37 of the Matrimonial Causes Act 1973 allows setting aside of transactions to defeat claims in financial remedy proceedings.
Matrimonial Causes Act 1973, section 37
Outcomes
Appeal allowed.
Judge's decision lacked sufficient analysis and anxious scrutiny; relied heavily on intervenor's statement, neglecting wife's contradictory statements; agreement was primarily commercial, not for legal advice or evidence gathering; lack of time for proper review.
Agreement with intervenors deemed not privileged; must be disclosed.
Dominant purpose was not seeking legal advice or obtaining evidence for litigation but rather a commercial deal to gain control of assets and settle separate litigation.
Stock transfer forms must be disclosed.
Relevant to the case and not claimed as privileged.
Husband's costs of the appeal and lower court hearing to be paid by respondents.
Husband's successful appeal.