B v B (Discovery)

• Jurisdiction: Bermuda
• Judgment Date: 21 March 2017
• Date: 21 March 2017
• Docket Number: Divorce Jurisdiction 2015 No 60
• Court: Supreme Court (Bermuda)

[2017] Bda LR 29

In The Supreme Court of Bermuda

Divorce Jurisdiction 2015 No 60

Between:

B

Petitioner

and

B

Respondent

Mr J Pachai for the Petitioner

Ms G Marshall for the Respondent

The following cases were referred to in the judgment:

B v B (matrimonial proceedings: discovery)ELR [1978] Fam 801

Evans v EvansFLR [1990] 1 FLR 320

P v P (Financial Provision)FLR [1989] 2 FLR 241

White v White [2000] UKHL 54

Jones v JonesUNK [2011] EWCA Civ 41

Scatliffe v ScatliffeWLR [2017] 2 WLR 106

K v LWLR [2012] 1 WLR 306

Grayken v GraykenBDLR [2011] Bda LR 16

Application for discovery — Use of expert evidence in ancillary relief proceedings — Sharing principles — Distinction between matrimonial and non-matrimonial property

RULING of Subair Williams R

The Application before the Court

1. This matter has come before the Court on the Petitioner's application under Rule 77(4) of the Matrimonial Causes Rules 1974 for discovery of further information on matters contained in the Respondent's affidavit evidence filed before the Court in the course of my investigation of the Petitioner's application for ancillary relief. The Petitioner in this case is the wife.

Background

2. The parties were married outside of Bermuda in 1998. Prior to the start of the marriage, the Petitioner had two years of gainful employment having obtained a Master's Degree in 1996. The Respondent husband, at that time, was in the early stages of building a large group of companies (‘the companies’ / ‘the company’) which he would later own jointly with two other principal shareholders.

3. During the marriage, the Petitioner became the full time care-taker of the two children of the marriage and the Respondent continued to pursue the success and growth of the companies. The first child of the marriage, a son, was born in 1999. The couple's daughter, who is now of adolescent age, was born in 2002. The marriage lasted some 17 years before it broke down in 2014.

4. The parties' daughter has a history of grave medical conditions and her ongoing needs required the Petitioner's full time commitment over the last two years in particular, notwithstanding the assistance of a nanny over a nine year span. The Petitioner contends that their daughter will need to continue her education overseas in a facility that has the capacity to accommodate her special needs. The son of the marriage is already enrolled in overseas education as a pre-university boarder.

The Discovery Requests

5. The Petitioner is now in pursuit of further discovery of documents and information about the Respondent's assets. The Respondent, however, argues that there has already been sufficient disclosure made and that I should proceed straight to certifying this case as ready for trial before a judge.

6. The disclosure of information sought by the Petitioner is divisible by two main categories: corporate and personal assets.

7. In relation to the Respondent's corporate assets, the Petitioner is in search of the following:

• i. Details concerning the Respondent's pecuniary interest in the companies (The specifics sought are outlined in the Petitioner's affidavit1 evidence from Mathew Clingerman. Largely, the request is for audited financial statements for the companies and an independent valuation of the companies.);

• ii. Copies of the Respondent's corporate credit card statements for the past three years;

• iii. Statements for the Visa HSBC business card ending in #9707 covering the last three (3) years;

• iv. Financial statements / Accounts for the company trust2 for the past three years and the Respondent's Letter of Wishes;

• v. Proof of the Respondent's company meal allowances; and

• vi. The Respondent's 2016 company dividends declared.

8. In relation to the Respondent's personal assets, the Petitioner is in search of the following:

• i. Bank statements for two overseas accounts held in the Respondent's name:

  • (a) Banka Fideuram (January-June 2014 and January-June 2015) and

  • (b) Banca Popolared de Bergamo: the entirety of the year 2014 except the month of December and the entirety of the year of 2015 except the month of December.

• ii. Bank statements for Bermuda accounts held in the Respondent's name:

  • (a) Bank of Butterfield MasterCard debit card (for the past 3 years);

  • (b) Bank of Butterfield British Airways credit card for the whole of 2013 save July and for the months of February and July 2014;

  • (c) Details identifying the recipient of $150,000 transferred from the Respondent's HSBC account 010-****23–511 to 010-****29–511; and

  • (d) HSBC account … 001–566 covering a one (1) year period from 1 January to 31 December 2013

• iii. The Respondent's BF&M annuity statements covering the next seven years;

• iv. Details as to how the mortgage on the parties' joint apartment was paid; and

• v. A ledger showing the incoming and outgoing funds for the upkeep of the overseas properties owned.

Chronology

9. Following the finalisation of the Decree Absolute made on 12 August 2015, the Petitioner's Notice of Ancillary Relief application was filed on 19 August 2015 and made

returnable by my predecessor (Learned Registrar Charlene Scott) for 22 September 2015.

10. By letter dated 22 September 2015 the Petitioner's former Counsel, Honor Desmond-Tetlow of MJM Limited, advised the Court that the parties would file a Consent Order on directions. A Consent Order was accordingly filed setting out directions for the filing of affidavit evidence and the making of Rule 77(4) requests.

11. The matter was then listed for mention to 17 November 2015 at 10:30am. However, on the joint request of the parties the November mention was delisted by Registrar Scott and relisted to 8 December 2015.

12. Ms Desmond-Tetlow then wrote to the Court on 4 December 2015 requesting for the delisting of the 8 December 2015 fixture. The matter was then relisted to 15 December 2015 at the request of the parties.

13. On 15 December 2015 Registrar Scott ordered, on the agreement of both parties, for the Respondent to continue to provide health insurance coverage for the Petitioner at the same standard which had previously been provided.

14. By Order of the Court further directions were issued on 29 December 2015 and the matter was listed for mention to 19 January 2016.

15. By agreed request of the parties, the matter was then relisted from 19 January 2016 to 16 February 2016.

16. On 16 February 2016 a request to “adjourn” (delist) for two weeks to 1 March 2016 was sent to the Court with notice that a Consent Order was pending.

17. The anticipated Consent Order was filed and dated 25 February 2017. Therein, a return date for mention before the Registrar was agreed for 1 March 2016. The terms of the Consent Order were expressly contingent on the Respondent's agreement to provide a written response, by close of business on 19 February 2016, to the Petitioner's 27 January 2016 letter. (The said letter sought an agreement on the appointment of valuers for all real estate owned jointly or solely by the parties). The Consent Order also recorded the parties' agreement that Counsel for the Respondent would respond in writing on or before 1 March 2016 to the Rule 77(4) requests sent on behalf of the Petitioner on 14 January 2016.

18. The matter was relisted from 1 March 2016 to 8 March 2016 and relisted again to 22 March 2016 at the request of the parties.

19. On 22 March 2016, the parties requested a four week adjournment to 19 April 2016 and the matter was relisted again.

20. On 14 April 2016 the parties requested a further adjournment from 19 April 2016 to 10 May 2016 and this was accommodated by the Court.

21. By letter dated 9 May 2016 the parties requested that the 10 May 2016 fixture be moved to 21 June 2016 and the Court relisted as requested.

22. On 17 May 2016 Jai Pachai of Wakefield Quin filed a Notice of Change of Attorney on behalf of the Petitioner, thereby replacing Ms Desmond-Tetlow.

23. By letter dated 3 June 2016, Mr Pachai with the agreement of the other side, requested for the 21 June 2016 fixture to be relisted to 28 June 2016.

24. By letter dated 27 June 2016, Counsel requested a relisting of the June fixture to 12 July 2016 and the matter was relisted to that date.

25. On 12 July 2016, Mr Pachai and his Client and Mrs Marshall appeared before me and an Order for Directions was made. At the conclusion of the hearing which lasted 1 hour and 12 minutes, the matter was adjourned to 11 August 2016 which was the only proposed return date in order to accommodate Counsel's pending travel arrangements in the interim period.

26. On 11 August the parties reappeared before me for a one hour hearing which was adjourned for continuation in September 2016. While Mr Pachai was keen to return in mid-September, Mrs Marshall's other trial commitments pushed her next availability to the end of September 2016. Accordingly, I adjourned to 29 September 2016.

27. On 29 September 2016 the parties appeared before me for hearing. Mr Pachai, having been served with various documents on the day prior, requested an adjournment of the hearing. Mr Pachai stated that while he understood Mrs Marshall's reasons for the belated disclosure, he would need an opportunity to review the new material with the Petitioner. Counsel also agreed that Mrs Marshall herself would need further time to review the affidavit evidence of Mr Matthew Clingerman which had been filed on 14 September 2016.

28. Mr Pachai proposed a return date for Thursday 13 October 2016, failing which he advised that the only alternative mutual availability for Counsel would be during and after the week of 14 November 2016. (Matrimonial matters before the Registrar are traditionally and routinely heard on Tuesdays.) Although I previously allowed this matter to be heard on alternative days to accommodate Counsel's limited availability, the Court calendar did not...