MR. JUSTICE BODEY:
A. Introductory
- This is a joint application for the court to construe a consent family remedy order dated 3rd February 2012 in circumstances where the parties cannot agree how it should be construed. The underlying issue is as to which party has to bear certain French tax ("the French tax charge") charged on a valuable property which I will call Villa Rose in the South of France. The amount of the French tax charge was about €9.2 million in June of 2014 and it will have increased since. One of the key questions, for reasons which will appear, is as to whether the word "borrowing(s)" in the consent order means borrowings in the strict sense of 'monies lent' or whether it should be so construed as to mean 'liabilities' ie however arising.
- The parties to the application are BG (whom for convenience I will call "the wife") and the estate of the late BA (whom for convenience I will call "the husband"). He died on 23rd March 2013 and his estate ("the estate") is now represented by Trustees in Bankruptcy, who are insolvency practitioners, appointed on 26th January 2015 under an Insolvency Administration Order made in the Chancery Division.
- The wife has been represented by Mr. Marks QC and Mr. Lazarides; the estate by Mr. Atherton QC and Miss Weaver. I am grateful to them for the collaborative way in which they have conducted the application. They have placed before the court cogent written submissions on the issue of construction, which they have amplified orally during the hearing. I have read those documents in the bundle, which I was asked to read.
- These proceedings are, as I have indicated, continuing after the husband's death and are thus being carried on against his estate. I considered the propriety of this at paras.9 and 10 of a previous judgment (on a different point) dated 19th September 2014 and I need not repeat here the authorities to which I there referred. Nor do I need do other than to record my conclusion, namely that the wife's accrued rights against the husband under the consent order of 3rd February 2012 remain enforceable, subject to the merits, as against the estate.
B. Brief Background
- There came a time when the parties were in negotiation about the wife's financial claims against the husband consequential upon the failure of their marriage. Both parties had first-rate matrimonial finance lawyers. The husband disclosed his wealth at circa £620 million "… in various trusts, companies and other entities". Further, he was at that time locked in titanic litigation in a number of high value cases defined as "the actions", the outcome of which was unknown but on which rode very substantial sums of money.
- On 14th July 2011 the husband and wife signed Heads of Agreement, compromising the wife's financial claims against the husband, subject to the approval of the court. On 22nd July 2011 King J, as she then was, made a consent order which approved those Heads of Agreement, thereby putting the case into so called 'Rose v Rose' territory and leaving the drafting of the necessary consent order to the lawyers.
- On a date in early February 2012 the husband's then solicitors disclosed to the wife's solicitors two relevant pieces of information. The first was regarding and explaining the ownership structure of Villa Rose and the second was about the existence of three charges over that property. As to the first of these pieces of information, the structure holding Villa Rose is moderately but not very complicated. The property is owned by a French Societé Anonyme which I will call 'Societé Anonyme D', which is in turn owned by three UK companies. Those companies are owned by a Delaware company ("E Inc"), which is owned by a Discretionary Trust of which the husband was the or a beneficiary.
- That structure, ("the ownership structure") was purely nominal. The husband set out his general approach to his property ownership in one of his affidavits within the financial relief proceedings, when he said:
"From 2000 to 2002 primarily as a result of the exposure of my assets to possible expropriation by [country named] government, [a named business colleague, X] and I began to set up a trust structure through which we could hold our assets. The investments were held in trust in such a way that our identities would not need to be revealed until the assets were due to be realised… Around this time [January 2006] X and I decided that as a result of my increasing political exposure, it would be in both our interests if I was seen to distance myself temporarily from our joint venture assets until the political reaction in [country named] to my recent statements quietened down. Consequently X and I agreed in February 2006 that a story would be leaked to the effect that I was transferring my business empire to him. This was intended to protect my assets. Behind the scenes my interest in certain joint venture assets was transferred to trusts, companies or other legal entities associated with or controlled by his nominees with the intention that they would hold my share of those joint venture assets… until I called for their return".
Then dealing with how he had in fact used to deal with Villa Rose in practice, the husband went on to say:
"The main reason I purchased Villa Rose was because I understood it to be an excellent investment opportunity… Of course, a happy consequence of its purchase was that it could be used by my extended family as a holiday home… If anyone wants to stay at Villa Rose, they have to obtain my approval. I decide who stays there and for how long".
Bearing that evidence in mind (and much other evidence which I will not repeat here) I ruled in my judgment of 19th September 2014 that E Inc held the shares in the UK companies (which own Societé Anonyme D, which owns Villa Rose) on a bare trust for the husband. That is now stated and accepted as an agreed fact as between the wife and the estate.
- The second piece of information disclosed in advance of the consent order being made in February 2012 was to identify three charges over Villa Rose as follows:
i) a charge in favour of a 'Miss F' (an ex employee) in the sum of €215,000;
ii) a charge in favour of a company which I will call Orchard Finance in the sum of €9.1 million plus interest; and
iii) a charge in favour of the French Government for accumulated tax, which was disclosed as having been in the sum of just under €3 million in 2008. This is the tax which I have said had risen to €9.2 million by 2014.
- A little explanation is needed about the items in that list. As regards item (i) (Miss F) she had it seems registered her charge to cover unpaid French Social Security payments (see paragraph 51 of her statement of Michael Leeds for the estate dated 26th November 2015).
- As regards item (ii) (Orchard Finance) this charge arose as follows. In 2006 through the ownership structure, the husband had purchased Villa Rose off a Mr. B. At that time Mr. B was in litigation with Orchard Finance over a sum of money, €9 million odd, said to be owing by Mr. B to Orchard Finance. As a consequence, Orchard Finance had charged Villa Rose as security for its claim if it should be successful. On the sale by Mr. B to the husband, therefore, an escrow account was set up into which €13 million of the purchase price was placed. The terms of the escrow were that if Mr. B successfully resisted the Orchard Finance claim against him, then the escrow money would be released to him (Mr. B) whereby he would receive the totality of the purchase price from the husband or from one of the entities in the ownership structure. If, on the other hand, Mr. B lost the litigation with Orchard Finance, then the escrow monies would go to Orchard Finance and Mr. B would not get that portion of the sale price which would otherwise have come to him from the husband.
- As regards item (iii) in the above list (the French tax charge), that arose under French law as a tax on Villa Rose because the beneficial ownership of it was never declared. French law is that, when a property is owned by a non-human entity, there is a tax on the value of the property charged annually, unless a declaration of its true beneficial ownership is made to the French tax authorities. Each year, therefore, a 3% levy is made on the value of the property and the accumulating sums can be charged on that property, as occurred in this case.
- On 13th February 2012 Mr. Francis QC sitting as a High Court judge approved the consent financial remedy order which had in the previous few days been finalised as between the lawyers. I will revert to its terms in a moment. Some time thereafter, I am told that the husband received a sum of around $40 million from the actions, an amount which has augmented since his death on 23rd March 2013 to a recovery from the actions of around $160 million. Notwithstanding those substantial recoveries, the estate is insolvent by virtue of there being greater liabilities.
- On 19th September 2014 I heard an application by the wife, as mentioned above, for declarations regarding the true beneficial ownership of the structure owning Villa Rose. I have already recorded the outcome, namely that the structure was held on bare trust for the husband, who put up all the money. The order included provision for the estate to sell the property in order to progress the consent order of 13th February 2012. That has been work in progress. It has been a complicated task for a number of reasons which are not relevant for today's purposes. Relatively recently a buyer has been found for Villa Rose in the sum of around €60 million, a good deal less than the parties had hoped at the time of the settlement. This has brought to prominence the issue mentioned above as to where lies the responsibility under the consent order for the French tax charge? Was it agreed that it would be paid by the wife, or by the husband, i.e. now his estate? To resolve that question it is necessary to consider the consent order.
C. The Consent Order
- The whole order is relevant and has to be considered in the round and in its overall context, which I have done. But the key provisions for this purpose are the following. On p.2 there is a definition of the net proceeds of sale of Villa Rose as follows:
"'Net proceeds of sale' means the gross sale price of a property less the costs of legal conveyancing, any taxes attributable to sale of the property and any estate agents' commissions".
At Recital A (i) the husband confirmed that, "He is able to secure the sale of and distribution of the net proceeds of sale of Villa Rose".
Recital D read:
"And upon the respondent [husband] undertaking in relation to Villa Rose:
i) [To provide the wife with full documentary evidence of ownership].
ii) To facilitate any necessary variations of trusts or redemptions of secured mortgages or charges in order to give effect to this order.
iii) Pending division of the net proceeds of sale, not to dispose of or deal with his [sic] interest in Villa Rose, save for the purpose of complying with this order and the Recitals to this order".
At Recital I, there were set out seven properties, the ownership of which was to remain with the wife, which I am told came with other of her own assets to some £35 million.
- There then followed the operative parts of the consent order. By paragraph 2:
"As soon as is reasonably practicable the Respondent [husband] shall sell, or cause to have sold, Villa Rose and the following provisions shall apply:
a) [Best price reasonably obtainable].
b) [Both parties to have conduct of the sale].
c) The gross proceeds of sale shall be applied as follows and in the following order:
i) In meeting the estate agent's costs.
ii) In meeting conveyancing legal costs (and any tax incidental to that conveyancing).
iii) In meeting any tax attributable to the sale of the property.
iv) £16 million to the Respondent (unless he has failed to remove any [sic] secured borrowing, in which case the £16 million shall be reduced by such sums as are necessary to reduce any such secured borrowing).
v) The balance of the net proceeds to the Petitioner [wife].
- Paragraph 3 of the order provided for the wife to receive 20% of all of the husband's recoveries in 'the actions' on the basis that the monies from Villa Rose coming to her would be credited against that 20% and that her maximum recovery all told under the order would not exceed £200 million.
- Paragraph 9 read that:
"Upon compliance with paras. 2, 3 and 4 of [this] order, as appropriate, the petitioner's claims for financial provision [etc] do stand dismissed…"
There were then further provisions designed to achieve a clean break.
- It can be seen and both Counsel accept that the order is not as well or thoughtfully drafted as it might have been, notwithstanding the specialist representation on both sides. A simple example is that, although the net proceeds of sale are defined in the Recital set out at paragraph 15 above, that definition is not used at all later in the order; instead paragraph 2(c) re-states the deductions from the gross proceeds, using slightly different terms. It is self-evident that, were the order not seemingly ambiguous as regards the French tax, then this application would not be taking place. It will also be appreciated that, most significantly, the structure of the order is such as to leave the wife having to pick up any otherwise unprovided-for liabilities needing to be satisfied in order to realise Villa Rose. That is the effect of the husband's share being expressed as a fixed sum of money to come off the proceeds of sale in advance of the wife taking the bottom-line remaining balance. On the face of it any sum taken off the gross proceeds as being necessary to be paid to realise the property must effectively reduce the wife's share. That is how the parties structured the order. Whether it is what the parties intended and agreed and whether it is what the consent order means is effectively what this hearing is all about.
- I have been taken through the order with something of a toothcomb and (to mix the metaphors) not many stones have been left unturned in a proper attempt to lead me to the conclusion which each counsel respectively seeks. It is one of those cases where there is fertile ground for arguing for either outcome, given the loose wording and lack of consistency of approach within the order. Each side can and has reasonably deployed arguments such as, "… If they had wanted to say that, they would have said it…" or, "… They would not have said that, but for such-and-such being the proper construction of this". As Mr. Marks said, both counsel have been reduced to having to try to shoehorn into the order (which he called "chaotic") the interpretation which their respective clients assert to be the right one.
D. Brief Summary of the Main Arguments
- I do not propose to deal with all the arguments, points and inferences which have been urged upon me, although I have them in mind. I shall deal only with those which seem most persuasive each way. I would have preferred to marshal these in a more orderly way, but time has not permitted.
Mr. Marks main arguments:
Mr. Marks relies on the relevance and importance of the overall context of this order. Its purpose was to move wealth from the husband to the wife. It was framed on the basis, he submits, that the husband could and would do all that was required to sell Villa Rose, as per his confirmation that he could do so in his undertaking A (i) and as per the concluding words of his undertaking D (ii) '…in order to give effect to this order'. It was, he says, framed on a fiction that the ownership structure did not exist, because it was known that the husband was representing that he could procure the outcome which he wished in respect of it. This not infrequently happens in 'big money' cases, where although everything is nominally within trusts, a husband, if it be the husband, will agree to the case proceeding on the basis that he can in fact organise the finances as he wishes. (I am not talking about the process of enforcement against specific assets, which is a quite different issue).
Mr. Marks emphasises that none of the three charges over Villa Rose was referred to in the definition of "net proceeds of sale" (above) and he asserts that this can only be because they were to be taken care of somewhere else. As to that, he points to the husband's undertaking at D (ii), namely, "… To facilitate any necessary… redemptions of secured… charges in order to give effect to this order".
Referring to the proviso in s.2(c)(iv) ("…unless he has failed to removed any secured borrowing, in which case the £16 million shall be reduced by such sums as are necessary to reduce any such secured borrowing") Mr. Marks says that that proviso necessarily presupposes an obligation on the husband to pay off some liability and again where else is it to be found, he asks, except under undertaking D (ii)? He submits that the word "borrowing" in that proviso is an ill-chosen and inaccurate word and must have been meant to mean "liabilities". He spoke of the draftsman having "dropped the ball".
How could or would the husband redeem the French tax charge if the correct interpretation is that it was down to him to do so? "Well," said Mr. Marks, "this could be done out of the £16 million or, indeed, out of the substantial monies which he (the husband) expected to receive from the actions and in respect of which he had already recovered some $40 million prior to his death".
Mr. Atherton's main arguments:
Mr. Atherton emphasises that these were experienced family finance lawyers at work in putting the order together. One would have expected, he said, to see these liabilities specifically covered in the order. If they are not covered, or are not specifically covered, then it must have been intended for them to come out of the wife's bottom-line share. Similarly, he stresses that the only fixed sum in the order is the husband's £16 million. Therefore the outcome under the order as properly interpreted should not be such as to invade that specified sum; otherwise the draftsman would have said so in terms. He points to para.3 of the order and argues that that paragraph (about the wife taking a share in the husband's recoveries from the actions) demonstrates that she was willing to take a risk as part of the financial settlement. He submits that that is what she was doing under para.2 by virtue of the structure of the order, whereby she was the person taking the risk, he says, as to the size of the French tax bill.
Mr Atherton goes on to argue that if the husband had had a personal obligation to pay the French tax, then the order would have said so, but it does not. Instead it says only that the husband will "facilitate" the redemption of the secured charges. Nowhere does the order say that he must pay them. Why is that, asks Mr. Atherton, rhetorically? The answer, he says, is that the French tax was a liability of Societé Anonyme D and not of the husband personally. Further, on his, Mr Atherton's case, it was to be paid under the order by the wife. The husband's only obligation was to 'try to sort things out' in accordance with the word "facilitate".
Further, if and insofar as the proviso in paragraph 2(c)(iv) was a requirement to pay off anything, then Mr. Atherton submits that it was only to pay off what it says, namely "secured borrowings". Self evidently, as he says, the French tax charges were not borrowings, not in the natural and ordinary meaning of the word, namely monies previously lent.
Turning to paragraphs 2(c)(ii) and (iii), Mr. Atherton submits that the first of these being a reduction from the gross proceeds of sale (by way of "meeting conveyancing legal costs and any tax incidental to that conveyancing") is wide enough to cover the French tax. He says it is 'incidental to' the conveyancing because under the French practice of buying and selling property it is something which the Notary would ensure was paid to the French tax authorities as part of effecting the sale. He argues that "…it is not a leap of faith" for the court to hold that 2(c)(ii) and 2(c)(iii) are wide enough read together to show that the parties were agreeing that the French tax would be dealt with as a deduction from the gross proceeds of sale and so would be at the wife's expense, by virtue of the structure of the order.
Even if, Mr. Atherton submitted, the husband's undertaking at D (ii) means what Mr. Marks submits it means, and even if he (the husband) were to have been in breach of it regarding the French tax, then that would only give the wife a claim for damages, which would be an unsecured claim in the bankruptcy of the estate. It would not mean that the French tax would come out of the husband's £16 million, because (a) there is no provision for that and (b) in any event it would or might be giving the wife a preference over other creditors.
E. The Law
- I have been referred to five House of Lords or Supreme Court or Privy Council cases where the construction of documents has been discussed. They are as follows: Investors Compensation Scheme Limited v West Bromwich Building Society & Others [1998] WLR 896; Attorney General of Belize & Others v Belize Telecom Limited & Another [2009] 1 WLR 1988; Chartbrook Limited v Persimmon Homes Limited [2009] 1 AC 1101; Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900; and most recently Arnold v Britton & Others [2015] AC 1619. I have considered all the passages in those reports to which I was referred. Most particularly, I am guided by the dicta of Lord Hoffmann in the Bromwich Building Society case where he said:
"1. Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
2. The background was famously referred to by Lord Wilberforce as the 'matrix of fact,' but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
3. The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification…
4. The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax.
5. The 'rule' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had".
- I refer too to paragraphs 14 to 23 of the judgment of Lord Neuberger of Abbotsbury in the Arnold v Britton case, particularly para.20 where he said:
"Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed… The purpose of interpretation is to identify what the parties have agreed, not what the court thinks they should have agreed… Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party".
F. Discussion
- I take account of all the points relied on by counsel as supporting the competing conclusions for which they argue. Those which weigh with me most strongly are as follows. The definition of "net proceeds of sale", although seemingly pointless (not being used elsewhere in the consent order) does not contain any reference to the three charges. It is more likely that their absence was as a result of the fact that the husband was going to deal with the charges under his undertaking D (ii) (which by its language covers those charges precisely) than that the wife would have to pick them up by default. In effect, what Mr Atherton is doing is asking the court to read into the definition of the "net proceeds of sale" the deduction of the three charges. Either that or Mr. Atherton has to succeed in some other way e.g. on his arguments about the charges being embraced by paragraphs 2(c)(ii) and (iii) of the order.
- As to para.2(c)(iv), there is argument both ways about the relevance of the proviso. However it is but a proviso. The underlying undertaking to facilitate the necessary redemptions of secured charges was created by D (ii). I accept that the words "borrowing" in the schedule, if literally interpreted, would or might be seen as detracting from there being an obligation under D (ii) to pay the two charges which were not borrowings (Ms. F and the French tax) but I will revert to that word "borrowing" or "borrowings" later.
- As to the estate's arguments that paragraphs 2(c)(ii) and (iii) are such as to cover the French tax charge, I am not persuaded. Paragraph 2(c)(ii) is to meet 'conveyancing legal costs and any tax incidental to that conveyancing'. It may be and indeed it is that on any such a sale the Notary has to and will pass the money through to the French tax authorities, but this is not tax 'incidental' to that conveyancing transaction. Rather it is historical tax which goes back over many years as a result of the non-disclosure of the beneficial owner of the villa. Similarly, as regards 'tax attributable to the sale' (paragraph 2(c)(iii)) that would of course embrace for example French CGT; but it cannot in my view be said that the tax concerned here (the tax on non-disclosed beneficial ownership) is 'attributable to' the sale, even though the sale would trigger the ability of the French Government to recover it.
- It seems clear to me that the second use of the word "reduce" in the proviso to paragraph 2(c)(iv) is a rogue word. In my judgment, it must have been intended simply to mean "discharge" or "pay". Mr. Atherton ingeniously suggested that the husband might have run up further borrowings so that he (the husband) might only have been able to "reduce" the amount of the borrowings out of the monies available to him, not discharge them. However I do not consider there is any warrant for that suggestion, since the husband was restrained by injunctions dated 1st July 2008 and 23rd September 2008 from further charging the property and I cannot readily imagine that the lawyers were envisaging and guarding against the risk that he might nevertheless do so.
- As to Mr. Atherton's point about the wife's remedy (if the husband's undertaking D (ii) means what Mr. Marks submits it means) being that the wife would only have had an unsecured claim for damages, again I cannot accept that. Under para.9 above, this order did not become a full and final settlement (such that the wife's claims for financial provision et cetera became finally dismissed) until paras.2, 3 and 4 of the order had been complied with. None of them have yet been complied with. If the wife had brought the matter back during the husband's lifetime to say that he was not complying with undertaking D (ii) then she would or would probably have been awarded a lump sum out of his £16 million so that she could use it to pay the quantified French tax herself.
- Coming back to the troublesome word "borrowing" in the proviso to paragraph 2(c)(iv) it is difficult to see any logical reason, in the context of settling a family law money case, for lawyers to differentiate as between borrowings and other monies charged on the property. The point was that all of the three charges had to be paid off so as (per the husband's undertaking D (ii)) "…to give effect to this order". The precise juridical nature of the charge or liability would not have mattered to the parties when negotiating the settlement. If strict borrowings alone were to be covered by the word "borrowings", then it would only in fact be referring to the Orchard loan because the other two charges (Miss F's and the French Tax Charge) were not related to monies lent; yet the parties were not at risk in respect of Orchard anyway, because they were protected by the escrow arrangement. So the proviso to paragraph 2(c)(iv) would have been rather otiose. Hence I cannot accept Mr. Atherton's argument that the proviso was worded as it was so as to protect the wife from the Orchard loan or from any further borrowings by the husband. I have explained above why there was no realistic likelihood of such further borrowings. It seems to me to be most likely that this use of the word "borrowings" falls into the exceptional category where the drafting was, to adopt Lord Hoffmann's words in Chartbrook, "… careless and no one noticed".
G. Conclusion
- Standing back, this was the husband's ownership structure. It did not matter to the parties how or from where he arranged that these (for him) modest sums should and would be discharged. The only thing that mattered, and is (as I find) what the parties intended, was that the expense of discharging the charges concerned would not fall on the wife.
- In view of the clear terms of undertaking D (ii), whereby I conclude that the husband was agreeing to facilitate the redemption of the charges in order to give effect to the order, I do not strictly need to go on as to construe the word "borrowing" within the proviso to paragraph 2(c)(iv) because in my judgment D (ii) covers the situation. I accept that (D(ii)) uses the word "facilitate", but words such as "procure", "arrange" or "facilitate" are frequently used in consent orders precisely because of the existence of nominal structures which distance the individual from the asset. If however, I did have to construe the word "borrowing" (whilst accepting that one has to tread cautiously when construing a word other than in its natural meaning) I would read "borrowing" as intended to mean and meaning "liabilities", the word "borrowing" having been used through sloppy draughtsmanship. If "borrowings" be so construed, then the proviso 2(c)(iv) makes perfect sense when read together with Undertaking D (ii). Correcting also the second use of the word "reduce" as per paragraph 27 above, it would read: "…£16million to the Respondent (unless he has failed to remove any secured liabilities, in which case the £16million shall be reduced by such sums are necessary to discharge any such secure liabilities)".
- I accept that it is usual for charges like these three charges to be taken off the gross proceeds of sale as part of getting down to the net proceeds of sale for division (which would effectively amount to taking them off the wife's share); but that is not mandatory. The parties were free to make their own agreement and have it converted into a court order in whatever terms they wished and however they wanted to arrange their finances. I am satisfied that the agreement and the intention behind this consent order was that it was not for the wife but for the husband to deal with the French tax, as he indicated he would be able to do by way of his expression of willingness to facilitate that it should happen. Therefore, I hold that the French tax should not come out of the wife's share of the proceeds provided for at paragraph 2(c)(v) of the order.
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