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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Albou v Albou [2001] EWCA Civ 750 (14 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/750.html Cite as: [2001] EWCA Civ 750

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Bennett)

		Royal Courts of Justice Strand London WC2 Monday 14th May, 2001

1. LORD JUSTICE THORPE: This March Bennett J gave judgment in what was undoubtedly a highly unusual ancillary relief inquiry. The comparatively young parties to the proceedings had married in 1990 and had two children, eight and six years of age respectively. The marriage had broken down at the beginning of the year 2000. The decree was pronounced later that year and the money case came on before the judge on a highly contested basis.
2. The whole area of dispute surrounded the husband's speculative activity in the year preceding the breakdown. The husband is an extremely able and very experienced dealer in financial markets. The wife's case was that he had made a huge profit from investing in a speculative shareholding, turning a profit of £3 million between spring and December of the year in question.
3. Her case rested in large part on what the husband had said to her, to her parents, to her sister, to friends of the family, as the period of speculation developed through summer and autumn, and most particularly at the point of sale and realisation of profit. In addition, during the interlocutory stages a lot of documentary evidence was either obtained by the wife or disclosed, and on examination there were e-mail communications from the husband either to an investment club of which he was a member or to some sort of communication channel known as Raging Bull. These e-mail communications certainly corroborated the wife's case to the hilt. I suppose circumstantially there was also the evidence that at about the time of the alleged realisation of profit, the husband had made some quite extravagant purchases, and there was also evidence of his capacity and tendency to deal in similar types of extremely speculative shares.
4. What the judge did not have – and it is the unusual feature of the case – is a scrap of documentary evidence of the purchase of any shares or options at the relevant time, or of the sale of any shares or options at the close of the year. There was in the wife's presentation this missing piece at the very heart of the jigsaw. So obviously the judge had a difficult task in finding his way towards a confident conclusion.
5. Bennett J, on this central question, delivered a judgment of manifest care in which he recited each piece of evidence chronologically. He made clear findings as to the reliability of each of the witnesses, and equally clear findings in relation to the evidence of the husband. He, the judge, was absolutely satisfied as to the sincerity and the reliability of the wife and her corroborative witnesses. He dismissed without much hesitation the husband's explanation for the damning e-mail communications, and he came to the clear conclusion that the husband had deliberately lied to him on the central issues.
6. All those findings present Miss Clarke with formidable difficulties in her application for permission. She has faced those difficulties with great realism, and she has argued her case as persuasively as it could possibly have been argued. But she has come very close to saying that absent documentary evidence of the purchase of the speculative shareholding and subsequent sale, it was simply not open to the judge to find against her client. She concedes that the judge correctly directed himself as to the law, giving particular attention to the speech of Lord Nicholls of Birkenhead in the well-known case of Re H (Minors) [1996] AC 563.
7. I cannot think of any other way in which Miss Clarke could have put her case or any other way that would have improved her prospects of success. But the submission is in the end insubstantial. The judge was fully entitled to conclude as he did on the evidence that was adduced and on his assessment of that evidence. Were there some sort of rule that documentary evidence of the precise purchase and sale was a sine qua non of a finding, it would obviously be something of a charter to highly sophisticated international dealers who may have much expertise in dealing through nominee accounts or accounts in other jurisdictions. Plainly the husband was a man of that sort of skill and experience, and in my opinion the approach of Bennett J and the findings of Bennett J on this central issue are not open to challenge in this court.
8. There might have been some sort of argument as to the computation of the wife's income dependency. But these quantifications are essentially a matter of discretion, and it is plain that this experienced judge was exercising precisely that sort of discretion in capitalising her income needs during the children's minority at £650,000.
9. If there had been any sort of question over that discretionary exercise, it is settled beyond any doubt by Miss Clarke's responsible conduct in informing us that in the event the former matrimonial home sold for £650,000 above the figure agreed at trial. The whole windfall of course goes for the benefit of the husband.
10. So, in the end, I would ask myself the simple question: do I have any anxiety that there has been a miscarriage of justice, an injustice, to Mr Albou? Obviously the possibility cannot be entirely excluded. Almost anything is possible and litigation is always perilous. But I, having read this judgment with care, am perfectly satisfied that Bennett J approached the case with characteristic thoroughness and fairness and arrived at conclusions which are simply not open to challenge in this court.
11. So, for those reasons, I would dismiss this application.
12. LORD JUSTICE CLARKE: I agree.
13. LORD JUSTICE LAWS: I also agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)