Mr Justice Coleridge has
ruled on a preliminary issue in financial remedy proceedings which involves a
trust set up to protect tigers in China. The case is Quan v Bray [2014] EWHC 3340 (Fam) and the
judgment can be found here. Chinese
Tigers South Africa Trust was set up in 2002 through the efforts of wife, Li
Quan, and husband, William Bray, working together with the Chinese government
and various other parties. The couple were initially devoted to the plight of
tigers in China and poured most of their matrimonial funds into the project.
The relationship broke down and divorce and financial proceedings were issued
by the wife. The wife then claimed that the purpose of the trust was not only
to save tigers but also to support the couple financially. She argued that the trust,
which held nearly £25m of funds, was effectively a post nuptial settlement
which could be taken into account in the financial remedy proceedings.
The husband objected, as did
the trust and the other interested parties. No doubt the tigers would have had
something to say about this as well! Mr Justice Coleridge’s judgment provides
guidance on the treatment of post nuptial settlements and in particular
settlements that might not have been nuptial in nature when they were set up
but which have become nuptial due to the intentions of the parties and actual use of funds from the trust. After
hearing the parties in December 2012 and again in June/July 2013 in what totalled
over three weeks of Court time, Coleridge found against the wife and concluded that
the trust was not nuptial in nature and that there had been no intention for
the parties to benefit from the trust.
As is not uncommon, Coleridge
J provided his judgment to the parties in draft form on 24 July 2014 and gave the
parties until 05 September 2014 to come back to him with any minor or typing
amendments before the judgment was to be formally handed down. This gave the
wife 5 weeks review the judgment and rather than just looking for spelling
mistakes the wife used this time to prepare a 43 page “Barrell” application
attacking all of Coleridge J’s findings and conclusions and asking for the
judgment to be re-written.
What
is a Barrell Application?
The term Barrell Application
derives from the case of Re
Barrell Enterprises [1972] 3 All ER 631 in which it
was established that, whilst there was jurisdiction to alter a judgment prior
to the judgment being sealed, it should only be done in exceptional
circumstances. This test was considered and developed by the Supreme Court in L and B (Children) [2013] UKSC 8 (20 February 2013) which involved another family
case where the judge changed her judgment of her own volition after it had been
communicated to the parties but before it was sealed (as opposed to being asked
to do so by the parties). The Supreme Court indicated that in exercising
discretion when faced with such an application the Court should be guided by
the overriding objective to deal with the case justly and consider the specific
circumstances of each case. Barrell
applications are not common and successful Barrell applications are ever rarer.
Even in Barrell the judge did alter the wording of his judgment but not the
overall decision.
As Coleridge J puts it in the postscript to his judgment in Quan v Bray a
Barrell application should only be used “where some particular fact or evidence has obviously been
omitted, overlooked or has changed since the hearing”. He went on to clarify
that it “does not afford a party the right to invite the court to start again
from scratch and "have another go" at finding for them based on an
entire re-arguing of the case.”
So was the wife right to try proceed with the Barrell application and in
doing so exploring all options to have her case considered, or did she cross a
line and misuse the legal application? Coleridge J was certainly not
convinced and in fact found that the additional submissions, which totalled 99
pages once the other parties had had the opportunity to respond, only fortified
his original findings and conclusions. It would seem that the appropriate avenue for the wife would be either to accept
Coleridge’s conclusions or appeal.
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