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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Mrs MB v Mr KB [2007] EWHC 789 (Fam) (07 March 2007) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2007/789.html Cite as: [2007] EWHC 789 (Fam) |
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FAMILY DIVISION
Strand London WC2A 2LL |
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B e f o r e :
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MRS MB |
Claimant |
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- and - |
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MR KB |
Defendant |
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PO Box 1336, Kingston-Upon-Thames, Surrey KT1 1QT
Tel No: 020 8974 7300 Fax No: 020 8974 7301
Email Address: [email protected]
Mr Justin Warshaw appeared on behalf of the Defendant
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Crown Copyright ©
"I have come to the conclusion that the various properties and businesses about which I have heard are family property in the broadest sense, ie that is as between Mr F and his sons there is no clear cut distinction between legal and beneficial ownership, and that the properties and profits from the businesses are freely available for the sons on a generous basis. But that, should any member of the family have a dispute with a third party, for example a former wife, then Mr F and his sons will not only draw nice distinctions between legal and beneficial ownership, but also resort to evasion and obstruction to get the better of the third party. I am satisfied that both Mr K and Mr M have substantial financial resources, and can easily pay the amounts which I intend them to pay."
"In order to create an estoppel of that kind, three requirements have to be satisfied. The first requirement is that the judgment in the earlier action relied on as creating an estoppel must be (a) of a court of competent Jurisdiction, (b) be final and conclusive and (c) be on the merits. The second requirement is that the parties (or privies) in the earlier action relied on as creating an estoppel, and those in the later action in which that estoppel is raised as a bar, must be the same. The third requirement is that the issue in the later action, in which the estoppel is raised as a bar, must be the same issue as that decided by the judgment in the earlier action."
"It may be that one should add as a fourth requirement that fresh evidence may be admissible if it has become available to show that the earlier judgment of the court was wrong. That seems to follow from Hunter v Chief Constable of the West Midlands Police. That fresh evidence should, however, have satisfied the hallowed requirements for the admission of fresh evidence, in that, first, the evidence should be such as it could not have been obtained with reasonable diligence for use at the trial, or that it should relate to matters which have occurred after the date of the trial. Secondly, it must be such as would probably have an important influence on the result if believed, and, thirdly, it must be apparently credible, though, of course, it need not be incontrovertible."
"The court retains the duty laid upon it under s 25 in respect of consent orders as well as contested proceedings. It has to scrutinise the draft order and to check, within the limited information made available, whether there are other matters which require the court to make inquiries. The court has the power to refuse to make the order although the parties have agreed it. The fact of the agreement will, of course, be likely to be an important consideration but would not necessarily be determinative. The court is not a rubber stamp."
"It seems to me that the weight of Court of Appeal authority is against the existence of any strict rule of issue estoppel which is binding upon any of the parties in children's cases."