Ps v Hf and Ss

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith,Jurats Allo,Le Cornu
Judgment Date12 August 2008
Neutral Citation[2008] JRC 128
Date12 August 2008

[2008] JRC 128

ROYAL COURT

(Family Division)

Before:

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Allo and Le Cornu.

Between
PS
Petitioner
and
HF
Respondent

and

SS
Co-Respondent

Advocate R. E. Colley for the Petitioner.

Advocate P. C. Sinel for the Respondent.

Authorities

Matrimonial Causes (Jersey) Law 1949 as amended.

P-S v C (9th July 2003) Jersey Unreported.

Harris v Manahan (1997) 1 FLR 205.

Tibbs v Dick (1998) 2 FLR 1118.

L v L (2006) EWHC 956 (FAM).

SB v SB [1995] 2 FCR 62.

Braid v Barnes [1998] JLR 15.

L v V [2004] JRC 033.

Harris v Manahan (1996) 4 All England Reports 454.

P-S v C [2006] JLR 463.

W v W (Financial Provision: Form E) (2004) 1 FLR.

Unlocking Matrimonial Assets on Divorce by Sugar & Bojarski 2007.

J-PC v J-AF (1955) P215.

Baker v Baker (1995) 2 FLR 829.

Barder v Barder (1987) 1 FLR 18.

de Lasala v de Lasala (1979) FLR Rep 223.

THE COMMISSIONER:
1

In this case, the respondent (who was the wife) seeks to set aside a final consent order made on 22nd February 2005 on the grounds of bad legal advice, lack of judicial scrutiny, non disclosure and supervening events, and this in order to apply for further financial relief.

Background to the consent order
2

The petitioner and the respondent married in Newcastle on 11th May 1985. The petitioner was and still is a dentist and the respondent was a dental nurse. They have two children, now aged 22 and 20 respectively.

3

In 1995/1996 the petitioner sold his dental practice in Sunderland in order to undertake a Master's degree in restorative dentistry. This was financed by the parties' downsizing the matrimonial home and living off the proceeds. In 1997, following completion of this degree, and having become disillusioned with the National Health Service, the petitioner purchased a dental practice in Jersey for £125,000, financed by a borrowing in that amount from the Royal Bank of Scotland International secured over an Allied Dunbar life assurance policy repayable in 2013 with the proceeds of that policy. The matrimonial home in Tynemouth was sold, realising a profit of £55,000 which, according to the evidence of the petitioner, was used in part to finance the move to Jersey and in part to support the family whilst the petitioner built up the practice. The family moved into rented accommodation in Jersey.

4

In 1999, the opportunity arose to purchase the property they were renting for £400,000. The petitioner was unable to raise any equity and his bank refused to give him a mortgage. However, a financial adviser was able to negotiate an endowment mortgage based on the petitioner's professional credentials and not on his practice income which, with the aid of a loan from the respondent's mother of £15,000, enabled the parties to purchase the property jointly by acquiring the shares in the company that owned the property.

5

In or about March 2000, the petitioner informed the respondent that he was struggling financially mainly because he could not afford the mortgage and therefore the property had to be sold. He intended that they would buy a smaller property in its place. The respondent did not accept that this was true, but at the time felt she had no say in the matter. At about the same time, she met the co-respondent and their relationship became intimate in October of that year.

6

The property was put on the market at an asking price of £750,000 but reduced by the petitioner over a short time span to an asking price of £550,000. The petitioner then informed the respondent that he had agreed to sell the property to his colleague M for £500,000 by way of a private sale, thus avoiding estate agency fees, and that the property should be taken off the market. The respondent alleges that she was coerced by the petitioner to use the family solicitor, Mr Philip Syvret, for the sale and signed a letter to him agreeing that the net proceeds should be paid to the petitioner. Mr Syvret was apparently aware that the parties were in matrimonial difficulties and that following the sale, they would be living separately. He would appear to have been advising the petitioner separately on other matters, although it is not clear whether this extended to matrimonial advice. The respondent says she only met Mr Syvret at the completion meeting.

7

The sale of the matrimonial home was completed on 16th March 2001 in favour of M, for the sum of £500,000 with the net proceeds in the sum of £90,639.30 being paid to the petitioner. From this sum, the petitioner utilised £60,813.36 to pay off his practice overdraft (£15,000) the loan due to the respondent's mother (£15,000) a loan due to his father (£5,000) and the credit card and other debts of the parties. The balance was divided equally between the parties, with the respondent receiving a cheque in the sum of £14,923.32.

8

From the date of the sale of the matrimonial home, the parties separated with the petitioner taking rented accommodation. The respondent moved in with the co-respondent with whom she still resides. From January 2001, she had started working full-time, and she sought and received no maintenance from the petitioner for herself. Initially, the children lived with the respondent but in due course they chose to live with the petitioner and were living with the petitioner at the date of the consent order in February 2005.

The proceedings
9

The petitioner instituted divorce proceedings on the grounds of the respondent's adultery with the co-respondent in December 2001. On receipt of the petition, the respondent consulted Mr Barry Pickersgill and in his presence completed the acknowledgement of service (Form 4). In it, she stated that she would not be making a claim for contribution for support pending suit or after decree, but would be seeking a lump sum payment/secured provision. The respondent filed her affidavit of means on 7th May 2002 in which she sought a capital payment only.

10

On 10th June 2002, the petitioner filed his affidavit of means prepared by Mr Syvret, who acted for him in the matrimonial proceedings, on information provided by the petitioner. Large sections were simply left empty. The financial position of the petitioner was not complicated. His assets comprised his NHS pension, various insurance policies, bank accounts and vehicles and mobiliary effects. He derived his living from his dental practice. On tax advice, this was conducted through P Dental Services Limited which was owned by the petitioner and the respondent in equal shares. They are the two directors and the respondent is also the company secretary. Although the petitioner conducted his own practice, he shared premises and certain overheads with two other dentists (one of whom was M) through another company, LR Surgeries Limited which rendered an annual service charge but was otherwise non profit making.

11

The petitioner told us in evidence that he assumed that the accounts of P Dental Services Limited and the details of the NHS pension would be attached to his affidavit of means by Mr Syvret. They were not. However, they were provided in due course through correspondence conducted between Mr Syvret and Mrs Carol Canavan, whom the respondent had instructed in October 2002.

12

Ancillaries were first dealt with at a hearing before the Registrar on 14th July 2004 at which the petitioner and the respondent were examined and cross-examined. The notes of Mrs Canavan show that the financial history of the marriage and the parties' financial circumstances were gone into in some detail. Her notes also show the Registrar indicating at the close of the hearing that the policies which had value should be divided, that the proceeds of the matrimonial home had already been divided and that the value of the practice should be taken into account, although he was not amenable to ordering an immediate lump sum in favour of the respondent which would have involved the petitioner in borrowing further on his practice. The division would be decided by the Court on a day to be fixed. The parties and the Registrar understandably looked through the company P Dental Services Limited to its only asset, namely the dental practice, and referred therefore to "the practice" and "the practice accounts" respectively. For convenience we shall do the same.

13

Mrs Canavan retained Moores Rowland to value the respondent's interest in the practice for which they were given the unaudited accounts for the four financial years to 31st May 2003. They calculated the average net profit before tax at £100,623 and the goodwill of the practice at the rounded sum of £252,000. The petitioner in turn obtained a valuation from Ian Mellors of I.M.I.C. who assessed the goodwill of the practice in the region of £165,285.

14

Following a directions hearing on 3rd November 2004, the 10th February 2005 was fixed by the parties for the Court to deal with the division of the pension, policies and practice. The respondent filed with the Court her open position, namely that she should receive a lump sum equal to 50% of the value of all of those assets. The hearing on that date was adjourned, because of delays in the petitioner producing the draft accounts of the practice for the period ending 31st May 2004. These accounts were produced and Moores Rowland then valued the practice at £313,357, which after deduction of the practice loan, would have left a net £202,981 of which the respondent was entitled to one half. Mrs Canavan proposed that this would be paid by the petitioner out of the practice income or from the sale proceeds of the practice, bearing in mind that the petitioner was intending to return to England.

15

The hearing was re-fixed for 21st February 2005. Bundles were filed in the usual way. The parties met in Court and agreed on a settlement on the basis that the assets would be divided equally, with the practice being sold after the younger child (then aged 17)...

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3 cases
  • SB v RB
    • Jersey
    • Royal Court
    • 15 December 2008
    ...appeared for SB. Advocate S. J. Young appeared personally. Authorities Supreme Court Practice 1999. Matthews v Matthews 2001/216. PS v HF [2008] JRC 128. THE COMMISSIONER: 1 The intervener and representor in the above proceedings, who for convenience I will refer to as CB, is seeking in a s......
  • Ps v Hf and Ss
    • Jersey
    • Royal Court
    • 18 September 2008
    ...2) (1968) 1 W.L.R. 540. Security Interest (Jersey) Law 1983. COMMISSIONER: 1 In paragraph 68 of its judgment handed down on 12th August 2008 (JRC 128) the Court asked for more information and to be addressed by the parties before finalizing its orders in relation to the practice. We adopt t......
  • Ps v Hf and Ss
    • Jersey
    • Royal Court
    • 18 September 2008
    ...judgment on the costs of these proceedings. 2 I adopt the definitions contained in the judgment of the Court delivered on 12th August 2008 (JRC 128) which has to be read in conjunction with this judgment on costs. 3 It is worth setting out again the concluding paragraphs of that judgment:- ......

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