Division of assets in a divorce can be a complex affair, writes District Judge Julie Exon

Reading the judgment in K v K [2005] EWHC 1070 (Fam) is like reading a racy novel, except that the facts of a racy novel would have been a lot more credible.


Mr K had led a colourful life, of which more later. Suffice it to say at this stage that, by the end of his 30-plus year marriage to Mrs K, considerable wealth had been amassed.


Interestingly, by the time of the final hearing it had been conceded that the assets should be divided equally between the parties. However, there had been a huge and acrimonious dispute about the true level of those assets. The trial took five days. The problem arose because although the husband had filed a form E in 1999, when the wife issued her first set of proceedings, disclosing assets in excess of £5 million, by the time of the second proceedings, his form E showed a deficit of some £2 million. Not surprisingly, the wife and her advisers considered they had a battle on their hands and had to set about proving the true value of his assets.


Mrs Justice Baron found the true assets to be worth slightly more than £6 million but total costs were some £930,000. She regarded the case as an object lesson for all and went on to say that 'if a husband does not give proper disclosure, makes threats and causes problems/delays, then the result will be a wife who feels she has no alternative but to litigate with all guns blazing'. The judge did not consider that litigation should be conducted in this way.


And she was clear that some of this could have been avoided if the case had been managed by an allocated High Court judge at the outset, thereby providing the necessary expertise and continuity. In fairness, there can be no disputing the expertise of the district judges of the Principal Registry of the Family Division who managed the case, but some 11 other judges (district and High Court) had been involved before it came up for final hearing. Perhaps the time has come for some 'docketing' of files.


Mrs Justice Baron also suggested using the device employed by Mr Justice Coleridge in OS v DS [2004] EWHC 2376, namely an oral hearing where, as here, disclosure was pivotal.


Now the case really does start to get interesting. The husband had been a fugitive from US justice for many years. At the time of the final hearing he was living in Cuba. On the first day of the trial he applied to give his evidence by way of video link in accordance with the principles in Polanski v Conde Nast [2004] 1 WLR 387.



The video conferencing guidance (annex 3 to the Civil Procedure Rules (CPR)) makes it clear that, although use of this medium should always be considered, especially where it is likely to be beneficial to the efficient, fair and economic disposal of the litigation, the court's permission is required.


That permission should be sought at an early stage. The wife's counsel had no option but to agree, otherwise there would be no opportunity to cross-examine the husband.


In the end, the link did not work and the husband gave his evidence over the telephone. The judge was unable to see the husband's demeanour while giving evidence. It is the duty of the solicitors for the party wishing to give evidence by video link, she said, to ensure that the link has been tested and is viable. She would resolve any doubt in favour of the wife, if any prejudice had been caused to her by this method of giving evidence.


Property was to be valued on a joint basis and this raised issues as to the instruction of joint experts. In particular, Mrs Justice Baron highlighted a discrepancy between the rules and the best practice guidance for instructing a single joint expert. It arose because the wife's solicitors sought updated values from the joint valuer and wrote direct without reference to the husband's team. FPR 2.61C makes it clear that &150; with some minor exceptions &150; part 35 of the CPR relating to expert evidence applies to all ancillary relief proceedings. CPR 35.8(1) states that, where the court gives a direction for a single joint expert to be used, 'each instructing party may give instructions to the expert' (in other words, separately, if needs be).


However, the best practice guidance makes no reference to separate instructions and, indeed, paragraph 9 stipulates that supplementary instructions should not be given to the single joint expert unless the other party has agreed or the court has sanctioned them.


Again, Mrs Justice Baron was quite clear. In matrimonial cases, where emotions often run high, it is prudent to act co-operatively and, therefore, jointly. If there is non-co-operation from one side, this cannot be circumvented by unilateral action but should, instead, be dealt with by an application.


The parties had also accumulated antiques worth some £330,000. No steps had been taken to resolve that issue. As a matter of practice, the division of chattels must be accomplished prior to trial and, certainly, the possibility of a further hearing to dispose of that issue was not something Mrs Justice Baron would contemplate. However, if the parties could not agree, a Scott Schedule must be completed with the items marked as agreed or remaining in dispute (with reasons why any particular item is sought).


Finally, the husband also had a weakness for members of the opposite sex. He was consorting with women at unsavoury establishments; he was drinking heavily and was spending a good deal on these activities.


The wife's case was that he had squandered huge sums in pursuit of various sexual conquests and that it would be inequitable to disregard this conduct. The judge accepted that the husband had become 'close' to various women and he was described as 'smitten' by one in particular. He paid many of her expenses and set her up in a flat. However: 'Expenditure on the seamier side of life may call for moral condemnation but it does not, of itself, call for any add-back unless it can be quantified.' Here the wife's counsel, Nicholas Mostyn QC, could not come up with even an estimate of the amount involved and neither could Mrs Justice Baron.


Therefore, the judge was not prepared to add anything back in relation to this type of expenditure because it was not 'sufficiently particularised'.


District Judge Julie Exton sits at Bristol County Court