UPDATE: Shooting Tigers in a Barrell - Court of Appeal Decision

The Court of Appeal has made a ruling on the case of Quan v Bray and Others [2017] EWCA Civ 405. The case involved a dispute over a trust, known as the Chinese Tigers South African Trust, which had been set up in 2002 by a husband and wife to help repopulate Chinese tigers to the wild. The couple subsequently separated and the wife issued a claim for a financial remedy in divorce proceedings. She argued that the trust, which held approximately £25m in assets at the time, was nuptial in nature and could therefore be considered a resource available to the parties from which her financial claims could be met. There were minimal matrimonial assets outside the trust so this question was fundamental to outcome of her claim.

 

In 2014, Sir Paul Coleridge found against the wife concluding that the trust had been set up for the benefit of the tigers and not to support the couple financially. The wife sought to immediately challenge the finding through a Barrell application which was the subject of a post on this blog. She was unsuccessful and drew criticism from the judge for trying to “have another go” without going through the correct procedure.

 

Unsurprisingly then, the wife appealed Sir Paul Coleridge’s decision and the Court of Appeal handed down its decision last week. Lady Justice King delivered the leading judgment in which she considered whether Sir Paul Coleridge had provided adequate reasoning for his finding, whether or not he had dealt with all of the relevant issues and, if not, whether his conclusion would have been different. King LJ was cautious about the shortness and lack of detail contained in the original judgment, stating:

“Whilst economical judgments are to be applauded, it is hard to resist a submission that this judgment, if not actually short of background and of analysis of the surrounding arguments, was perilously close to it.”

Notwithstanding this comment, the wife’s appeal was dismissed. The Court of Appeal found that the wife had not successfully challenged the original findings and, as such, the trust was not nuptial in nature and therefore not available to the parties on the divorce.

The status of the trust was a preliminary issue which has taken years to get to this stage at considerable financial cost. King LJ referenced over £3.5m in legal costs with £340,000 alone spent on the wife’s appeal. If this is the end of the matter then the wife’s financial claim can proceed to be determined without reference to the funds in the trust. That said, given the wife’s determination in this case so far, it would not be surprising if this case were to find its way to the Supreme Court.

The original post on the case can be found here.

If Family Law were a Sporting Event...

Scotland v England

I thought I’d have some fun with the blog this week in light of the sporting spectacular that has taken over London.

The nation may be united behind Great Britain as the greatest show on earth gets underway, but within our borders a gap has opened up in the family law arena with Scotland leaping ahead of rivals England (and Wales).

Round One: Cohabitation

The recent case of Gow v Grant which saw the Supreme Court consider the property rights of cohabitants in Scotland, has highlighted the protective laws that cohabitants in Scotland enjoy (and emphasized the mire of uncertainty south of the border).  Yes, there is talk of reform, but that is no match for Scotland’s Family Law (Scotland) Act 2006 with section 28’s game winning performance.  Baroness Hale seems to have taken up the mantle of team coach for England telling players that “lessons can be learned” from the opponents tactics.  For the moment though, the advantage most definitely lies to the north.  It’s Scotland 1 England 0.

Round Two: Gay marriage

The announcement this week that Scotland plans to legalise gay marriage puts the Scots even further ahead in these Family Law Games!  England’s hopes of legalising gay marriage rest with the athletic abilities of Mr Cameron.  In a recent statement no one could deny that the PM showed that he has the determination and the passion to go all the way.  But he will need more than courage of conviction to overcome the significant hurdles ahead which include a challenging head-to-head bout with the Church of England and the constant distraction of a shaky coalition.  Perhaps he is looking to play the long game, and regain some points for elegance of execution?  After all, England will have the benefit of watching Scotland go first through the process? If they slip up, England could capitalise on that and learn from their errors.  For the time being though, it is Scotland 2 England 0 after round two.

European Qualification

Should Scotland succeed in being crowned the UK Family Law Champions (I’m still working out the details), how might they fair on a European stage?

The current leaders appear to be The Netherlands, who trail-blazed the legalisation of same sex marriage back in 2001.  Other nations including Norway, Portugal, Spain, Sweden, Iceland, Belgium and Denmark have followed since then.  With its recent announcement Scotland might be trailing a little but its cohabitation laws, which have been in place since 2006, might help to boost their rankings.

In the mean time, I suggest we sit back and watch the real action unfold in this great city.  Come on team GB!

On your marks, get set…vote!