Quan v Bray & Anor

A judgment must enable the parties and an appellate court to trace the reasoning supporting material factual and legal conclusions. Concision is encouraged, but separate counsel’s submissions cannot substitute for judicial analysis merely because a judge indicates agreement with them. Significant omissions in the reasoning, including the factual basis for credibility findings and the treatment of alleged financial benefits, may give a real prospect of a successful appeal. At the permission stage, the court considers only whether that threshold is met. Where the first-instance judge has already declined a substantial request to expand the reasons, and further clarification would be disproportionate or too late, permission may properly be granted for a full appeal.

The appeal arose from financial remedy proceedings following the breakdown of the marriage between Li Quan and Stuart Bray. A preliminary hearing concerned whether the Chinese Tigers South Africa Trust was a post-nuptial settlement and whether its assets were resources of either party. On 18 December 2014, Sir Paul Coleridge declared that the assets were not resources under Matrimonial Causes Act 1973 s25, held that the trust was not a post-nuptial settlement, and dismissed the wife’s application under s24 .1(c).

The judge declined to expand his reasons after a further application. Lord Justice Ryder, considering permission on paper, concluded that the reasoning was inadequate but left it to the full court to decide whether clarification should be sought or permission granted. The central issue was whether the judgment could be salvaged by further clarification or should proceed to a full appeal.

1. Permission to appeal was granted. The Court of Appeal held that the issue before it was whether the matter should proceed to a full appeal, not whether the trust was in fact a post-nuptial settlement or whether its assets were resources of the parties.
2. It was wrong in principle for a court to rely on a reference to counsel’s separate written submissions, without further analysis, as the basis for conclusions on key issues. A judge’s indication that he favours one side’s closing submissions does not, without more, incorporate those submissions into the judgment or make them part of the critical reasoning.
3. A judgment may be short and selective. Its length need not correspond to the number of files or hearing days, and concise judgments are encouraged. It must nevertheless disclose enough of the structure and factual matrix underlying material conclusions, particularly credibility findings, to enable the parties and an appellate court to understand and assess the reasoning.
4. At the permission stage the court considers only whether the proposed appeal has a reasonable prospect of success. Although the judge’s credibility findings presented a formidable obstacle, there was a real prospect that the wife could show that the reasoning was insufficient. The judgment did not adequately analyse the alleged benefits received by the parties, the consequences when the trust ended, the 31 October 2011 email, or the rival contentions concerning the initial investment.
5. The court declined to ask the President of the Family Division to use the possible power under section 9(1) of the Senior Courts Act 1981 to invite the retired judge to clarify his judgment. The judge had already dealt with the wife’s further application, and the request for clarification was extensive and made many months after the hearing. The matter was therefore allowed to proceed to a full appeal. The court strongly urged the parties to seek a settlement.

• Court of Appeal (Civil Division): Permission to appeal was granted so that the wife’s challenge to the first-instance reasoning could proceed to a full appeal.
• Family Division of the High Court: On 18 December 2014, Sir Paul Coleridge held that the trust assets were not resources of either party, that the trust was not a post-nuptial settlement, and dismissed the wife’s variation application.
• Permission on paper: Lord Justice Ryder concluded on 25 March 2015 that the reasoning was inadequate but left the procedural course for determination by the full court.