HHJ Hess. Financial remedies decision concerning whether English court had jurisdiction to determine a claim in respect of immovable property situated outside England where the claim is based on equity; and can adverse inferences be drawn from a party’s failure to engage?

H was 60. W was 48. Both were Nigerian citizens. H was a successful businessman. The parties owned properties in England (where W lived) and Miami (a holiday home) and Lagos (owned by W). W owned a number of shares in companies, plus various chattels and cash. As H had disengaged with proceedings, his assets were hard to assess. Moreover, AA Limited (a corporate entity in Nigeria, almost certainly owned and controlled by H) issued an action in Florida in which they sought to assert themselves as 100% beneficial owners of the Miami Property and asked for the legal property to be transferred to themselves.

Held: The English courts had jurisdiction to determine the claim in relation to the Miami property, as it was a claim based on equity. In determining the jurisdictional issues, the judge considered the Hague Convention on the Law Applicable to Trusts and their Recognition 1958, Articles 4 and 7, imported into domestic English legislation through the Recognition of Trusts Act 1985, and was persuaded that the principle of lex situs should be given precedence within an analysis of Article 7. Notwithstanding the lex situs determination, the judge was satisfied that the result would be the same under English law, the lex fori. That is, that the claim made by AA Limited should be dismissed, and the Miami property placed within the joint column of the asset schedule.

Through a range of information acquired by W’s legal team, and the broad assessment of the business given to the court by H prior to his disengagement, the judge was persuaded to accept W’s analysis of the value of the husband’s corporate interests at a net figure of £180,000,000. The availability of some information meant that the assessment of H’s assets did not fall into Lord Sumption’s forbidden category of ‘pure speculation’ (cf. Wisniewski v Central Manchester Health Authority [1998] PIQR 324, p.340) and allowed him to make inferences which were ‘properly drawn and reasonable’ (as per Otton LJ in Baker v Baker [1995] 2 FLR 829). J v J [1955] P 215 and Moher v Moher [2019] EWCA Civ 1482 considered.

The judge discounted the value of H’s business assets by 50% to acknowledge their non-matrimonial origin but W to have half remaining value. This division was reflective of W’s significant work contribution to the marriage including in turning around the company’s fortunes; W’s receipt of shares and the fact that the family lived off the companies was indicative of a mingled operation; and some of the business operations were developed by investments made in the course of the marriage. Remaining assets equally divided. Effected by transferring Miami and English properties to W; H to pay balancing lump sum simultaneously with W transferring her shares in his business to him. H to pay costs for litigation misconduct.