Susan Nancy Baker v Andrew Hartill Baker  EWFC 13611 August 2023
Published: 29/08/2023 22:51
Mostyn J. Final hearing of W's financial remedies claim, in which the main issue was whether H should be held to the terms of a separation agreement executed by the parties in New York in 2015. It was W's case that H has squirrelled away $35m (£27.4m) worth of assets from these proceedings.
W is 75 and American. H is 74 and English. H was found to lack capacity to conduct these proceedings and was supported by a litigation friend.
The parties married in 1986 and there are no children of the marriage. H says they separated in 2000. W says that it 'endured on an intermittent basis' until 2013. A separation agreement was executed in New York in November 2015. W petitioned for divorce in England in May 2021. Decree Nisi was pronounced on 27 January 2022, which has not yet been made absolute. W's Form A for financial remedies was issued on 4 June 2021.
The net value of H's visible assets were c.£5.6m. The net value of W's assets were c.£5.8m. Costs totalled approximately £1.8m.
W's claim and the main issue in dispute
W sought a lump sum of £9.34m, which she calculated to be due to her under the separation agreement. H's position was that the parties' mutual claims be dismissed, and that there should be no repayment to him of the MPS paid by him. W's claim would leave H insolvent to the tune of £3.8m. However, it was W's case that H has at least £27.4m secreted. W was absolute that such money exists and should not be treated as 'pixie money' – i.e. money that is at the bottom of the garden with the pixies, as once referred to by Lady Justice King.
If W's assertions were found to be true, the total assets would be £39m and the award to W would be £15.2m/39% of the assets.
As such, there were no real issues of law in the case. The crux of the matter was a primary issue of fact; whether H did indeed have the asserted £27.4m additional resources. If not, simply what award should justly be made to W from H's visible assets.
It was W's case that the hidden money derived from one of two sources, which the judge referred to as Envigo and Lediba. W argued H's interest in Envigo amounted to at least $25m, the source being shares originating from H's interest in Life Science Research Inc, a Nasdaq publicly-listed company. Further, W argued at least $10m derived from Lediba, a Liechtenstein foundation, set up by H in 2005. Extensive evidence was heard from both sides.
The separation agreement
The agreement was entered into in New York in November 2015. It sated that any dispute with regards to payment would also be litigated in New York and H would meet W's reasonable costs.
In short, the agreement provided H to pay W a lump sum of £200,000 (which had been paid at the time of this hearing) and a series of provisions that H satisfy a number of mortgages on a number of properties to prescribed amounts, triggered by either W selling property or H's death.
As to income:
- H was to pay W $22,000pm without indexation, terminating on the later of W's remarriage, cohabitation or death.
- If H predeceased W, his estate was to pay her $35,000pm with the same conditions above.
- H was to pay various periodic expenses in relation to W's property.
W calculated the sum due to her to be £9.34m.
Mr Justice Mostyn found H to be an 'exceptionally poor witness'. He commented that he was 'rude, argumentative, avoidant of direct questioning (and) truculent' and 'treated the entire litigation as if it was an impertinence and a joke'. Despite this, he was clear that a trial court must be 'on its guard against the influence of demeanour'. The court must examine the actual evidence and avoid any formation of bias against any particular witness.
Mr Justice Mostyn concluded that despite H having been dishonest in his presentation of his position, the allegation that H had hidden funds was not proven.
H was ordered to pay a lump sum of £1,614,000, including £200,000 towards W's costs. This payment reduced H's net worth to £3,941,565 (35%) and increased W's to £7,458,895 (65%). This was to 'reflect both his estimated liability under a clutch of interlocutory orders and the court's very strong condemnation of his delinquency'.
Both legal teams received explicit praise from Mr Justice Mostyn for their 'skill, assiduity and diligence' in the case, noting it being 'a pleasure to conclude my judicial career with the receipt of such skilful advocacy'.