Bosch v Bosch & Ors

In ancillary relief proceedings involving complex family wealth structures, the court may draw heavy inferences against a respondent whose evidence and litigation conduct obscure the true financial position. An order may properly reflect resources managed or controlled through family companies where the evidence establishes that those resources are realistically available to the respondent. The principles in Thomas v Thomas were confined to cases of a different kind and did not prevent the order made here. An appellate party should not advance a fundamental fairness argument that was never presented to the trial judge. A technical objection to the form of a property-transfer order will not justify interference where the order reflects the parties’ litigation positions, is conventional, and causes no practical injustice.

The wife sought ancillary relief from her husband, whose financial affairs involved substantial inherited wealth, family companies and extensive transfers and business dealings. The husband maintained that he had largely divested himself of his fortune and was technically insolvent. The wife alleged that the corporate arrangements were a sham and that the husband and his eldest son continued to control substantial resources.

After a nine-day hearing, Bennett J made an order providing the wife with property and cash worth approximately £2.5 million. He found that the husband had made extensive use of Amil’s money and that Amil remained a significant financial resource. The husband applied for permission to appeal on grounds concerning reliance on the children’s support, overall fairness and the technical form of the property-transfer order.

1. Application dismissed with costs. Thorpe LJ delivered the judgment, with Potter LJ and Kay LJ agreeing.

2. The case was materially different from Thomas v Thomas [1995] 2 FLR, which concerned orders said to depend improperly on contributions from children. The judge’s task here was to assess the principal witnesses and determine the reality of the family’s arrangements and dealings.

3. Where a respondent presents complex financial structures and conducts litigation in a way that obscures reliable evidence, the judge is entitled to draw heavy inferences against him. Bennett J’s findings that the husband and his eldest son had created a smokescreen of indebtedness, that the husband had extensively used Amil’s money, and that the family’s loyalty would secure payment justified treating Amil as a significant financial resource.

4. The submission that the award offended fairness because it affected inherited wealth was not advanced at trial. It was contrary to principle to permit a party to litigate through an expensive trial and then raise in the Court of Appeal a fairness submission which the trial judge had no opportunity to consider. In any event, the order gave the wife an independent overall fortune, and the property transfer was only partial satisfaction of that entitlement.

5. The objection that the husband could not personally transfer the flat because he owned shares in the relevant holding company was a pure technicality. He had advanced his case on the basis that he was the unencumbered owner and had assented to the form of order below. The conventional order caused no practical disadvantage and rewriting it would produce only further expenditure.

• Court of Appeal (Civil Division): Application for permission to appeal from the ancillary relief order made by Bennett J was dismissed with costs.