OUTER HOUSE, COURT OF SESSION [2011] CSOH 33
F35/09	OPINION OF LADY CLARK OF CALTON in the cause D M (AP) Pursuer; against J M (AP) First Defender; and THE W TRUSTEES LIMITED Second Defenders; and K B (AP) as legal representative of R M, S M and J M Third Defender; _________

Pursuer: J Scott, QC and C Wilson; Morton Fraser LLP

First Defender: Wise, QC and R Innes; HBJ Gateley Wareing (Scotland) LLP

Second Defenders: Inglis; Hamilton Burns

Third Defender: Mitchell, QC, Michel; Livingstone Brown

15 February 2011

Privacy

[1] There are a number of young children referred to in this opinion. I wish to protect the privacy of these children and have therefor removed and altered some details which might identify them directly or indirectly.

The Parties
[2] The pursuer and first defender (witnesses 1 and 15) were husband and wife having married in Scotland on 6 August 1988 (6/1 of process). There were no children born of the marriage. They were divorced by interlocutor dated 26 January 2010.

[3] The second defenders were incorporated in connection with the W Trust which was established by the first defender in terms of a Trust deed 9/1 of process. The second defenders are a limited company with two issued shares. One share is held by Dalglen Directors Limited and the other share is held by Dalglen Secretaries Limited. The partners of Biggart Baillie LLP are shareholders of both Dalglen Directors Limited and Dalglen Secretaries Limited. One director of the second defenders until 6 September 2010 was Dalglen Directors Limited. Ronald Brown (witness 14) was the partner of Biggart Baillie LLP who mainly acted in relation to the second defenders. The other director from time to time and the only director during the proof until 12 January 2011 was E W. E W (not a witness) is a solicitor qualified in Scotland who assisted the first defender and became a senior employee of I Co. plc. She and the first defender formed a personal relationship which resulted in the birth of two children in 2008 and 2010. Said children, as children of the first defender, are included in the category of beneficiaries under the terms of said W Trust. On 13 January 2011, E W as sole director of the second defenders resolved that John O'Hara and K B be appointed as directors with immediate effect. The arrangements are set out in 102 of process.

[4] The third defender, K B (witness 18) is the mother and legal representative of three children, born 1998, 2002 and 2003. Said children are the children of K B and the first defender and as such are included in the category of beneficiaries under the terms of said W Trust. K B and the first defender formed a personal relationship and lived with him during periods until about August 2007.

Procedural History
[5] There is a complex history to be found in the Minutes of proceedings. A jurisdiction "race" developed after the first defender raised divorce proceedings in Dubai on 13 April 2009. Suffice it to record that on 26 January 2010, on the undefended motion of the pursuer, the Lord Ordinary found it established that the marriage of the pursuer and first defender had broken down irretrievably in terms of the first conclusion of the action raised by the pursuer. The Lord Ordinary further specified the period within which an order for a capital sum and periodical allowance may be made as 13 months from the date of 26 January 2010, in terms of section 12(1)(b) and 13(1)(b) of the Family Law (Scotland) Act 1985 (hereinafter referred to as the 1985 Act). The Lord Ordinary also extended to 15 months the period referred to in section 28(7) of the Welfare Reform and Pensions Act 1999 (hereinafter referred to as the 1999 Act), in terms of section 28(10)(a). The Lord Ordinary thereafter continued the cause for proof on the question of the relevant date under section 10(3) of the 1985 Act and the financial claims by the pursuer.

[6] The case came before me for Proof in respect of the aforesaid issues. The proof extended over 16 days commencing 21 September 2010. After an adjournment the proof was completed on 14 January 2011.

Problems Relating to Late Instruction of Counsel

[7] I was informed by senior counsel for the pursuer that the pursuer throughout most of the stages of the action had received legal aid. Her case had been investigated and prepared for proof using the usual procedures including specification of documents.

[8] The first defender was granted legal aid at a very late stage of the proceedings shortly before the proof commenced. I was informed by senior counsel representing him that this had caused difficulty in obtaining instructions and preparation for the proof.

[9] The second defenders were a party to the action from an early stage of proceedings. I was informed by counsel for the second defender that he had been formally instructed only a few days before the proof commenced and that had caused many difficulties. There had been a change of instructing solicitors. He explained that funds for the action had not been available and he made reference to the terms of the interim interdict relating to the Trust Property. He stated that E W had borrowed funds from her mother P W (witness 11) sufficient to enable representation by counsel at the diet of proof commencing on 21 September 2010. He stated that E W was in an advanced stage of pregnancy with her second child by the first defender and was unable to travel to Edinburgh from her home in America. No motion was made to offer proof from E W by affidavit or by video link.

[10] K B was permitted to enter the action shortly before the proof by interlocutor dated 16 September 2010. On that date the Lord Ordinary allowed her under terms of rule of court 49.3(1)(b) to appear and be heard at the diet of proof although defences had not been lodged on her behalf. Senior counsel for the pursuer gave her consent for senior counsel for K B to lead the evidence of K B at the diet of proof. K B became the third defender, albeit no defences were lodged. The minute of sist sets out the representations on behalf of K B. I was informed by senior counsel for the third defender that problems in preparation of the case arose.

[11] There were a number of difficulties which occurred in the course of the proof which appeared to result from the very late stage at which some legal representatives who acted at the time of the proof had been instructed. Apart from counsel for the pursuer, all counsel claimed difficulty in preparing for the proof because of lack of information and late instruction. Their difficulties caused problems for the pursuer's legal representatives who required to respond at short notice to late developments including late productions and new issues. Counsel for all parties tried to accommodate these difficulties as best they could. The difficulties were anticipated to some extent but a motion to discharge the proof was refused by interlocutor dated 16 September 2010.

[12] These circumstances did not facilitate my task. I see no point in detailing the difficulties caused except to say that this case illustrates, in my opinion, the desirability of case management under the control of the Lord Ordinary who is to hear the proof.

[13] One issue which I do require to deal with in relation to the aforesaid problems arose on days 12 and 13 of the proof and I deal with that in the Appendix.

Issues in the Case

[14] At the commencement of the proof, I was informed that the pursuer, the first defender and second defenders had agreed that the relevant date for the purposes of the 1985 Act, was 5 December 2008. That issue was not agreed by the third defender in the First Joint Minute (8 of process). No live issues about the relevant date were raised in the proof by senior counsel for the third defender. He did not seek to persuade me to find any alternative date.

[15] I am satisfied that the relevant date for the purposes of the 1985 Act is 5 December 2008. There was, however, an unusual history to the relationship and living arrangements of the pursuer and first defender and I deal with that in paragraphs 62-93.

[16] The unresolved issues between the pursuer and first defender related to the financial conclusions of the pursuer. The first defender opposed the financial claims of the pursuer and by plea in law five opposed the pursuer's conclusion setting aside transactions of funds and assets to the second defenders. Both the second and third defenders opposed the order sought by the pursuer in terms of conclusion 6. Their involvement in the action related to this part of the pursuer's case.

The Pleadings
[17] The final copy of the Closed Record as amended is 97 of process (an earlier copy of the same document is 88 of process). The pursuer in conclusion 3 seeks a capital sum of £20 million pounds. Conclusion 4 seeks a pension sharing order of 100% of the value of the first defender's pension with Cable and Wireless. Conclusion 5 seeks a periodical allowance of £5,000 per month. Conclusion 6 is in the following terms:

"For setting aside and reduction of the transaction or transactions whereby the first defender provided funds and assets to the second defenders for the purpose of the acquisition and management of the W Estate or other purposes connected with that Estate: and to ordain the second defenders to repay or restore to the first defender said Estate, funds and assets; and for such other or ancillary order as the court shall consider expedient.

[18] The history of the marriage is dealt with in article 2 of condescendence. In answer 2, there are admissions on the part of the first defender in relation to some of the important events in the history including his relationship with K B and E W and the birth of various children as a result of these relationships. The first defender also accepted that during the marriage he had made financial provision in generous terms to the pursuer.

[19] In article 3 of condescendence, the pursuer sets out the relevant date for the purposes of section 10(3) of the 1985 Act as 5 December 2008. That is disputed in the pleadings but, as I have explained, this date was agreed before proof. The pursuer also makes averments about the various heritable and moveable assets of the pursuer and the first defender which are averred to be matrimonial property on 5 December 2008. There was agreement between the pursuer and the first defender in relation to some but not all of these assets. Significant dispute about assets and valuations were live issues in the proof.

[20] In article 4 of condescendence, the pursuer avers that she has suffered an economic disadvantage in the interest of the first defender and sets out various averments in relation to the history of the marriage prior to 2000 when the first defender set up his own company. This company is referred to in my opinion as I Co plc, which is an alteration in its name. The history is not in significant dispute in the answers. The first defender avers that the pursuer had been economically advantaged by the marriage and that she enjoyed a standard of living she would not otherwise have enjoyed.

[21] In article 5 of condescendence, the pursuer avers that she "reasonably fears that the first defender will try to hide his resources rather than pay her financial provision". She avers that she was unaware of the first defender's relationships with K B and E W and his children. She makes averments about various financial transactions by the first defender which post dated November 2008. She also makes averments about the actings of P W as solicitor and the actings of the first defender in relation to the second defenders. These financial transactions predated the relevant date of 5 December 2008 but according to the pursuer's averments, the pursuer was unaware of the transactions until after that date. In the answers of the first defender, some of the transactions are admitted. In particular it is admitted that:

"in or about 2005, the first defender set up an accumulation and maintenance trust, the W Trust. The state of the pursuer's knowledge about the first defender's family life with K B and then with E W and his children is not known and not admitted under explanation as follows: that the first defender made no secret of his said family life which has in the past been mentioned in press information about his company...the W Trust was set up for the benefit of the first defender's children. The first defender had substantial resources at that time and wished to secure his children's future. He also wished to do so as a result of his health difficulties....the W Estate was, and continues to be, a working estate. The first defender's children have resided there for periods of time. It is not, and has never been, the first defender's home. It is operated by the Trustees for the benefit of the beneficiaries. The first defender is not a beneficiary of the Trust. There is no relationship between the funds transferred into the Trust by the first defender and the pursuer's claim for financial provision on divorce". The answer for the second defenders is "not known and not admitted".

[22] In article 6 of condescendence, the pursuer sets out averments in relation to the income of the pursuer and first defender and her alimentary needs including her need for carers. She avers that "she is unable to work and will not work again. Her needs are exacerbated by her disabilities". In answer 6, the first defender avers that the pursuer received the sum of £100,000 in January 2009 in error. He avers that "from January 2008 the first defender did not draw a salary from the company in which he is involved due to the present financial state of the business. That company has since collapsed. The first defender is currently without employment. He is reliant on the payments of his pension with Cable and Wireless Plc...".

[23] Towards the end of the proof, the closed record (97 of process) was further amended without objection. Prior to submissions, senior counsel for the first defender amended the record in terms of minute of amendment 99 of process. This was to take account of deterioration in the health of the first defender. Senior counsel for the pursuer added a plea in law by minute of amendment 103 of process in support of conclusion 6.

The Witnesses
[24] Senior counsel for the pursuer led the following witnesses in the order listed:

(1) Hazel Sasan, the instructing solicitor who has acted for the pursuer since the beginning of 2009. She spoke about attempts to obtain various documents and some difficulties in relation thereto.

(2) The pursuer. She gave evidence, with my consent and the consent of parties, accompanied by a friend who sat beside her in the court.

(3) E B, mother of the pursuer. She gave evidence about the relationship of the pursuer and first defender.

(4) Dr Ahmed Al'Khayer, PDRU, Southern General Hospital. He gave evidence about the pursuer's medical condition and history.

(5) R M who is the brother of the first defender. He gave evidence about his perception of the relationship between the pursuer and the first defender and his knowledge of their living arrangements.

(6) Craig Thomson, Tax Adviser from Deloitte and Touche and former Inspector of Taxes. He was involved in advising the first defender in relation to his personal taxation during the period Spring 2007 - April 2010 in relation to unresolved questions with HM Revenue and Customs about the first defender's tax liabilities.

(7) Lachlan Fernie, chartered accountant since 1983 and senior partner in Geoghegans. He gave evidence about the tax returns submitted on behalf of the first defender in the period 2004-2006. He had discussions with HM Revenue and Customs and put forward the claim that the first defender was non-resident for tax purposes. He explained his understanding of the effect on the tax liability of the first defender depending on whether the first defender was or was not resident for tax purposes.

(8) M M, the sister of the pursuer. She gave evidence about her perception of the relationship between the pursuer and the first defender before and after the separation. She also gave some evidence about the financial and other arrangements of the parties.

(9) Fiona Martin, Director of Business Services, RSM Tenon Limited. Her CV is included in Appendix 1 of 6/301 of process. She gave evidence about the valuation of I Co plc and shares based on her report 6/301 of process.

(10) Maurice Milligan, an employee of the second defenders. He described some changes and refurbishment of the W Trust property owned by the second defenders.

(11) Alan Hamilton, Sheriff Officer. He spoke to various attempts to serve legal papers on the first defender at the main house of the W Trust owned by the second defenders.

(12) P W, solicitor, in a firm in Fife. She is also the mother of E W. P W spoke to her involvement in certain legal work instructed on behalf of the first defender which included the sale in 2005 of a house owned jointly by the pursuer and first defender. She was also involved in the purchase of the W Estate which became the property of the second defenders.

(13) Hugo Struthers, Savills. His CV is at Appendix 2 of his report 6/317 of process. He gave evidence about the description and marketing of the W Estate in 2005 and the results of his inspection and valuation carried out before the proof.

(14) Ronald Brown, Solicitor, Biggart Baillie LLP, Glasgow. He gave evidence about his involvement as a director and shareholder in the company structure established by Biggart Baillie LLP in relation to the second defenders.

Senior counsel for the first defender led the following witnesses in the order listed:

(15) The first defender.

(16) Colin Kane, who had 22 years experience as a tax inspector and held the position as charity assets and residence high net worth unit of HM Revenue and Customs.

(17) Greig Rowand (CA) of Henderson Loggie Chartered Accountants. He gave evidence in relation to the valuation of I Co plc and shares based on his report 7/76 of process.

No witnesses were led by counsel for the second defenders.

Counsel for the third defender led:

(18) K B.

Submissions by Counsel
[25] I am very grateful to all counsel for their efforts to narrow and focus the issues in dispute. At my request, all counsel submitted written submissions which were relied on in oral submissions. The submissions and further submissions are to be found for the pursuer in 104 of process; for the first defender in 105 of process; for the second defenders in 106 of process; and for the third defender in 107 of process. I have carefully considered the written and oral submissions made on behalf of the parties.

Summary of Submissions on behalf of the Pursuer

[26] The pursuer seeks a pension-sharing order, an order setting aside transfer to the second defenders, a capital sum (in two parts, part from the trust fund and part at large), and a periodical allowance for a short period.

[27] Senior counsel submitted that the pursuer's claim in terms of the 1985 Act, section 9(1)(a) has a maximum value of £10,830,370. On any view, she submitted the pursuer's claim exceeds £2,000,000. The claim is based on:

Undisputed property worth £5,069,888 (pursuer £608,161, first defender £4,461,727).

Other property worth £2,793,625 (all first defender).

I-Co plc (pursuer £8,940/3,007, first defender £13,837,507/4,643,212).

Other cash (pursuer £100,000, first defender £15,000).

Property of the second defenders (£3,270,000 - land and SFP).

Possible tax debt of the first defender approx £2,000,000.

[28] Senior counsel explained that the pursuer's claim under section 9(1)(e) supports her section 9(1)(a) claim but, at the above levels of approximately £2 million to £10 million, does not add to it. The pursuer also has a claim for periodical allowance which is limited to £800 pm for 10 months.

[29] Senior counsel submitted that the first defender had failed to justify a limitation of the financial provision to which the pursuer is entitled under section 9 of the 1985 Act by reference to his resources. Albeit it is accepted that I Co plc has ceased to trade, the evidence of what is salvaged is unsatisfactory and the first defender has failed to vouch current assets. Further there is scope for the operation of the 1985 Act section 18.

[30] The first defender's transfer of funds and assets to the second defenders qualifies for an order under the 1985 Act section 18 as these had the effect of or are likely to have the effect of defeating the pursuer's claim for financial provision. The court should in the exercise of discretion set aside such transfers.

[31] These submissions were made under reference to the following authorities: Little v Little 1990 SLT 785; Jacques v Jacques 1997 SC (HL) 20; Coyle v Coyle 2004 Fam LR 2; L v L 2003 Fam LR 101; Watt v Watt 2009 SLT 931; Fulton v Fulton 1998 SLT 1262; Cunniff v Cunniff 1999 SC 537; Anderson v Bruce (1859) 21 D 654; Burn Murdoch - Interdict; Welfare Reform and Pensions Act 1999.

Summary of Submissions on behalf of the First Defender

[32] Senior counsel submitted that there was no right by a spouse to financial provision. She then examined the following issues.

[33] What was the net value of the matrimonial property at the relevant date? She considered the extent and value of assets, less liabilities, of the pursuer and first defender. She submitted that major issues included the value of I Co plc and the extent of tax debt relative to the period prior to 5 December 2008.

[34] Senior counsel considered what assets were left as at the date of proof that could be used to achieve a fair division of that net value. She referred to the agreement that the first defender injected $6,139,369 into I Co plc in March 2009 (Joint Minute para 13) and the collapse of I Co plc during Summer 2009. She asked the court to consider an assessment of assets now held by the pursuer and the first defender which are available for division.

[35] Senior counsel then considered what award of financial provision (if any) should be made having regard to the respective resources of the pursuer and the first defender. She referred to the further issues: Does the first defender have any resources that he could realise to pay the pursuer a capital sum and if so what sum could reasonably be awarded? Should any part of the first defender's pension be subject to pension sharing? Is there any basis for an award of periodical allowance?

[36] Finally senior counsel considered if the award of financial provision (if any) to be made could not be met from the first defender's current resources, could the transactions the pursuer seeks to set aside under reference to Conclusion 6 be set aside and if so, should the court set them, or any of them aside? I understood that she was content to leave these submissions to counsel for the second and third defenders.

[37] Senior counsel made these submissions under reference to: Sweeney v Sweeney (No 2) 2006 SC 82; Welsh v Welsh 1994 SLT 828; Sweeney v Sweeney 2004 SC 372; McConnell v McConnell 1997 Fam LR 97; Buchan v Buchan 1992 SCLR 766; MacRitchie v MacRitchie 1994 SLT 72; McCormick v McCormick 1994 SCLR 958; Jackson v Jackson 1999 Fam LR 108; Crockett v Crockett 1992 SCLR 591; Crockett v Crockett (unreported, 30 June 1993).

Summary of Submissions on behalf of the Second Defenders
[38] Counsel submitted that the disposition in favour of the second defenders did not, as a matter of fact, have the effect of defeating the pursuer's claims in whole or in part.

[39] He submitted that section 18 of the 1985 Act is not for the purpose of setting aside genuine transactions with no avoiding intention. He made reference to the Scottish Law Commission Report (No. 67). In support of his submission about the relevance of the Scottish Law Commission, counsel prayed-in-aid: M'Intyre v Armitage Shanks 1980 SC 46 (HL); Rehman v Ahmad [1993] SLT 741; Advice Centre for Mortgages v McNicoll [2006] SLT 591.

[40] In any event counsel submitted that the evidence does not disclose an avoiding transaction.

[41] He submitted further that even if the court should consider factors in addition to avoidance intention, the exercise of discretion favours the beneficiaries over the pursuer.

[42] Finally counsel submitted that there is no conclusion on record which enables the court to base its order on payments made by the first defender to third parties. I understood this to be a reference to payments made by the first defender to creditors of the second defender.

Summary of Submissions on behalf of the Third Defender
[43] Senior counsel submitted that the payment by the first defender to the second defenders which is sought to be set aside by the pursuer did not have the effect (et separatim has not been proven by the pursuer as having had the effect) of defeating in whole or in part the pursuer's claim for financial provision. Accordingly the court does not have the power, under section 18 of the 1985 Act, to make any order in terms of section 18(2) of the Act. Esto the court does have such a power, the discretion of the court is unfettered and must be exercised in light of all of the relevant circumstances of the case. In the exercise of its discretion, the court should not set the transaction aside.

[44] Senior counsel further submitted that in any event, the transaction ought not to be set aside bearing in mind the need to retain capital for the reasonable needs of the beneficiaries and the likelihood that only a proportion (if any) of the funds released from the trust by such process of setting aside would enure to the benefit of the pursuer, considering the competing claim of HM Revenue and Customs.

[45] Further and in any event, the transaction should not be set aside to such an extent as to render the second defenders incapable of carrying out to a reasonable extent its trust purposes in respect of the beneficiaries.

[46] I now consider the factual history.

Consideration of the Evidence: Some General Comments

[47] Agreed facts are set out in joint minutes 87, 92 and 98 of process. These facts should be referred to for their terms as they underpin this opinion.

[48] The case is somewhat unusual in that the pursuer had no personal knowledge of many of the important aspects of the first defender's life. I consider that her knowledge and involvement in the first defender's business life from about 2004 was almost non-existent.

[49] I was favourably impressed by the evidence of both the pursuer and K B. Both these witnesses might be considered to have grounds for complaint against the first defender for his behaviour. Their evidence was given with generosity and they both gave testimony which favoured the first defender in many ways.

[50] The pursuer is suffering from the cruel ravages of multiple sclerosis and suffered terrible emotional shock and worry as a result of her discoveries after the relevant date. I had no hesitation in finding her a credible witness but I do consider that her memory of some history and dates is not reliable.

[51] I was most impressed by the evidence of K B who seemed to have an excellent memory for history and dates. She also appeared to be able to give an account of events which was not affected by her emotional reaction to them. There was no significant criticism of this witness and I have no hesitation in accepting her as credible and reliable.

[52] Maurice Milligan was in my opinion a reluctant witness who claimed to have very little knowledge. I did not consider his evidence advanced my understanding of the facts.

[53] The first defender was the only witness who could give detailed evidence about the factual history of his personal life and about his business life. No other witness called was in a position to give such direct evidence. The first defender was not called as a witness until most of the other witnesses had given evidence. Inevitably therefore he gave evidence about matters not spoken to by any other witness. I consider that it is an inescapable conclusion from the evidence that the first defender over many years concealed very important facts from the pursuer about his personal life. This was a pattern which he appeared to follow at times in relation to other important relationships in his life namely his relationship with K B and E W. In relation to some of his business affairs, I formed the impression, for example, that Craig Thomson had reservations about some of the explanations given to him by the first defender when Craig Thomson was trying to sort out the first defender's tax affairs. I can only conclude that the first defender is a man, who if it suits him, will hide or disguise the truth about certain aspects of his life. That does not mean however that I came to the conclusion that he was lying in his evidence. That would be a very serious matter.

[54] In giving evidence about his personal life, the first defender gave evidence which in many respects appeared to be candid and fitted in with such other evidence as was available to me. As I explain, I have no difficulty in accepting some of the first defender's evidence but I consider that his evidence must be very carefully scrutinised. In relation to certain matters, I was not prepared to accept his evidence in the absence of any supporting evidence. That does not necessarily mean that I disbelieved him, it means that his evidence alone was insufficient to persuade me in the circumstances of this case.

[55] It was not submitted by any of the counsel that serious issues about credibility arose in relation to any of the other witnesses. I agree with that. Senior counsel for the first defender made some criticisms of the evidence of R M. I did not accept that R M's evidence was distorted because of his bad relations with the first defender. I consider that R M gave his evidence in a straightforward way and I had no reason to conclude that he was biased against the first defender. His evidence in any event was related to a narrow aspect of the case.

[56] I did form the view that the evidence of M M was influenced by the strong critical views which she had formed about the first defender's behaviour to the pursuer. I was conscious of that in assessing her evidence but again her evidence was of limited scope.

[57] E B gave evidence which supported the evidence of the pursuer but was very general in nature. She was not always told everything by the pursuer who kept her own counsel.

[58] I consider that P W seemed defensive in her evidence. In the absence of any other evidence about her relationship with her daughter, E W, I consider that I was not in a position to form a view as to whether she was being candid about the extent of her knowledge about the relationship between E W and the first defender, both past and current. I had no difficulty in concluding that the involvement of P W in any legal business related to this case was entirely because she was the mother of E W. She did not impress me as someone who had taken on the role of giving independent and perhaps unwelcome advice to the first defender. She appears to have interpreted her role as carrying out such instructions as she received from the first defender mediated through E W.

[59] I also consider that Ronald Brown seemed defensive in his evidence. He appeared to be embarrassed to some extent by the difficulties which were being explored with him in relation to the Trust arrangements and the role of the first defender as the person setting up the Trust.

[60] I had no difficulty in accepting the evidence of Hazel Sasan and Alan Hamilton as credible and reliable.

[61] Apart from these general comments, I make further references to the testimony of witnesses in the text of the opinion. I now turn to consider the evidence in relation to the main issues in the case.

History of the marriage from 6 August 1988 to divorce on 26 January 2010
1988 to 1998
[62] I did not hear evidence in relation to the merits of divorce as decree of divorce had been granted. The history of the marriage was relevant to the date of separation which was in dispute but, by the date of the proof, the relevant date had been agreed as 5 December 2008. I heard evidence about the relationship of the pursuer and first defender, as part of the general history of the pursuer and first defender and as background to the financial circumstances.

[63] The main witnesses to this history were the pursuer and the first defender supplemented by evidence from K B. I also took into account the evidence given by E B, the pursuer's mother, M M, the pursuer's sister, and R M, the first defender's brother.

[64] As the history of the marriage was not the main focus in the case, some important facts were spoken to in evidence by the pursuer or the first defender but not by both these parties. These matters include, for example, the last date of marital relations and an alleged self harming attempt by the pursuer following the pursuer's discovery in about 1996 of the first defender's adultery with K B. Evidence about these matters was given by the first defender but not by the pursuer. I do not consider that it would be appropriate to make any findings of fact in relation to such events in this case where the matters were never explored with the pursuer and there is no other relevant evidence.

[65] Senior counsel for the pursuer has provided a timeline of events. This has been adjusted by senior counsel for the first defender. I consider that these timelines adequately reflect a history of events in line with the evidence which I accept, unless I explain otherwise.

[66] The events in the timelines may not be in significant dispute but they do not in themselves explain the history of the marriage which was given in evidence. For the limited purpose of putting the financial affairs of the pursuer and first defender into context, I therefor set out my findings about the marriage.

August 1988 to September 1998

[67] I find that the history of the marriage fell into three main chapters. The first chapter dates from the marriage in August 1988 to September 1997. The pursuer gave evidence about a happy marriage in which the first defender worked abroad eventually for Cable and Wireless as a cable engineer. He worked abroad for about three months and had leave for about six weeks when he saw the pursuer. They often travelled abroad together on holiday. The pursuer lived and worked in Scotland. They had no significant capital and lived on their joint earnings which were modest. In 1989, the pursuer obtained medical advice and she was given a tentative diagnosis of multiple sclerosis. This concerned both the pursuer and the first defender but did not affect their lifestyle. The pursuer and the first defender did not disclose to family and friends the health problems of the pursuer. The pursuer ceased work for a period of over a year when she lived in Bermuda when the first defender was working there. The first defender supported the pursuer financially during that period. The first defender became ill in Bermuda in about 1995/6 with blood clots in his lungs. The pursuer assisted with his care. He was off work for some months but paid a salary. He resumed work in Bermuda with cable and Wireless. He began a course of further study. He became ill again with the same problem. The first defender was thereafter retired on a pension on grounds of ill health from his employment with Cable and Wireless.

[68] There was a period when the first defender was studying in the UK when he was unemployed in about 1997. I accept that he had income from his pension from his former employers and was not supported financially by the pursuer as was her recollection.

[69] During this ten year period of their marriage, I accept that the pursuer gave the first defender much affection, support and encouragement as well as practical assistance. She enjoyed the lifestyle and foreign travel provided by the first defender. I consider however that, even during this period of the marriage, the pursuer was more committed to the marriage than was the first defender. It was not in dispute that in about 1996 the pursuer discovered a letter sent by K B to the first defender. As a result the pursuer discovered that the first defender was having an adulterous affair with K B. Following this discovery, the pursuer travelled abroad to meet up with the first defender at his place of work. The problem was discussed. The pursuer was very distressed. The first defender promised to give up his relationship with K B and did so for a period. From the evidence of K B, I accept that the period was not a very lengthy period and was less than a year. I am satisfied that, without the knowledge of the pursuer, the first defender resumed his relationship with K B which had commenced in 1994. K B was aware that the first defender still saw the pursuer from time to time and was involved in her financial support. K B had not been aware until 1996 that the first defender was married. He had not told her.

[70] In 1998 both the pursuer and K B became pregnant with a child of the first defender.

[71] The first defender understood the medical concerns of the pursuer about the effect of pregnancy and birth in relation to her medical condition. In the discussions between the pursuer and the first defender, the first defender did not reveal to the pursuer that he was about to become the father of a child to K B. In the absence of that knowledge, the pursuer decided to have a termination. The first defender was with her for the termination and supported her in that decision.

[72] Shortly thereafter K B and the first defender had a child in late 1998. That altered the nature of their commitment. The first defender and KB set up home together.

[73] I consider that the pursuer described an idealised version of her marriage and I accept that may be her recollection. I do not accept her evidence to the effect that after the first defender took up his employment in Leeds that he returned to live with her every weekend or met up with her. That evidence is contradicted by K B whom I accepted as both a reliable and credible witness. I do accept that the pursuer had no idea that the first defender was leading a double life at this time. I am sure he gave plausible explanations to her about his absence. I accept the evidence of K B that during the period of her pregnancy and probably before that, she and the first defender spent most weekends together and spent as much time as possible together.

[74] I conclude that the termination followed by the birth of his first child to K B made a significant difference to the first defender's thinking about his marriage. In evidence, the first defender claimed that for him the termination signified the end of his marriage and he never felt the same about it. For whatever reason, he did not share these thoughts and concerns with the pursuer. He allowed the pursuer to believe that the marriage continued albeit because of his alleged work commitments he spent very long periods apart from her.

[75] The pursuer presented as a charming, attractive and caring woman who had plainly been devoted to the first defender and dependent on him. She trusted him despite the evidence which she had that he had already committed adultery during the marriage. My impression was that whatever the first defender wanted, the first defender received from her. In my opinion, she was not likely to challenge or harass him about his absences or question him. She accepted his explanation about why he did not wear his wedding ring when he was away from her. If the pursuer had doubts, she kept them to herself. She chose to place all her trust in him. As a result, the first defender was able to maintain a pretence to the pursuer that all was well with the marriage and yet at the same time he continued his family life with K B.

[76] This all occurred at a time long before the first defender started his successful business. The first defender was an employee with modest earnings. The pursuer was also in employment with modest earnings. K B worked as a teacher. I consider that this is important because I am satisfied that the deception in this case was not promoted in order to deceive the pursuer about his wealth to minimise any payments on divorce.

1999 - 2007
[77] In the next chapter, the first defender became very involved from at least 2002 in developing his new business. I am satisfied that most of his energies and time were involved in business activities and spending family time with K B. Two further children were born of their relationship in 2002 and 2003. From about 2003, the first defender became involved in an international lifestyle. I accept his evidence that he spent much of his time abroad in various countries pursuing his business. I am satisfied that he spent little time in Scotland with the pursuer. He did however provide a number of holidays for the pursuer at various places. On these holidays the first defender treated the pursuer as his wife. He was generous and affectionate. I also accept that the first defender remained in regular, but not daily, telephone contact with the pursuer. He bought her expensive presents. These presents included jewellery which she regarded as replacement wedding and engagement rings. He funded travel and holidays. He gave gifts to her relatives. He also provided funds for the purchase of various properties for the pursuer which the pursuer regarded as their joint home regardless of the name on the title. He funded medical treatment in the USA to try to help her. He paid for a credit card for her use. On occasion, when the first defender visited Scotland, he stayed with the pursuer as if he was an affectionate husband. It is the pursuer's impression and memory that the first defender always stayed with her in Scotland including Christmas but I do not accept that. I consider that his visits were occasional and that these visits did not usually include Christmas day as he spent that time with K B and their children. The pursuer did spend periods of time with the first defender on holidays abroad. These appeared to be happy periods for both the pursuer and the first defender.

[78] The pursuer was told by the first defender that he could not spend too much time in the UK because of tax reasons. This was both an excuse and true.

[79] By 2005, at the time the first defender was involved in the flotation of I Co plc, he was at the height of his success. He had by this date, three children to K B. His business was very successful and he was about to obtain millions of pounds as well as very valuable shares. In contrast, the condition of the pursuer was deteriorating. Her health was very poor and by August 2005, her employment had been terminated because of her deteriorating health (6/79 of process). I am satisfied that the first defender was motivated by feelings of affection and concern for the pursuer and probably guilt. He chose to invite her on a lavish holiday to celebrate the success of the flotation of I Co plc. I accept from the description given by both the pursuer and the first defender that the likely cost of that holiday was approximately £50,000. After 2005 the first defender made generous financial provisions for the pursuer. The pursuer relied on his financial and emotional support. Anything she wanted, she was given by the first defender but her requests were modest in comparison to his wealth. The pursuer was aware in a general sense of the first defender's wealth. He did not keep that a secret from her.

[80] By the summer of 2007, the first defender had spent over 10 years in a relationship with K B. They had three children. With the assistance of Biggart Baillie LLP in 2005, the first defender had set up the second defenders, and created a trust in which said children were beneficiaries. During this period, the first defender concentrated on his business interests around the world. He spent some time in Scotland living at the main house in the estate owned by the second defenders with K B. She spent most school holiday periods with the children and him abroad. They spent Christmas together. The first defender remained in affectionate contact with the pursuer. He visited her from time to time.

[81] The first defender also arranged visits where he joined the pursuer abroad including visits by the pursuer to his home in Seattle. The home in Seattle was set up by the first defender as a family home for K B and their children with the usual paraphernalia of family life including photographs. The visits of the pursuer were at times when K B and the children were not in Seattle. The pursuer gave evidence that she saw no signs of family life and that she had no idea the first defender was living with someone else in family. I accept her evidence. I am satisfied that the first defender did not wish to tell the pursuer about his family life with another woman. I infer that this was because of guilt and an attempt by the first defender to avoid distressing the pursuer. I infer that the circumstances in the house in Seattle when the pursuer visited were so arranged that it was not obvious to the pursuer that the first defender was maintaining a family home with someone else. Or at least it was not obvious if the pursuer chose not to ask any questions.

[82] K B gave evidence to the effect that during her relationship with the first defender, she raised from time to time the issue of his relationship with the pursuer. She said that he had initially deceived her when they first met in 1994 and began a relationship. She did not know until 1996 that he was married. She did not discover this until he broke off the relationship in about 1996 after the pursuer had discovered the relationship. When the relationship was recommenced, K B was told by the first defender that the pursuer was ill. The first defender always told K B that he had to look after the pursuer. K B was unable to persuade the first defender to sort out his matrimonial situation. K B appeared to have some sympathy for the pursuer because of her illness and an understanding of the first defender's wish to support her.

2007 - 2009
[83] The third chapter commences in 2007. According to P W, the marriage of E W was in difficulties by the summer of 2007. She blamed the husband of E W. I do not accept that evidence which was hearsay and partial, based on the account by E W. By her own evidence P W was not given full information from E W and she did not learn of E W's pregnancy by the first defender until shortly after October 2007.

[84] K B gave evidence to the effect that she and the children visited the first defender at the home in Seattle during the school holidays but the defender was hardly ever there. It was not a happy period. She had her suspicions about the first defender's behaviour. These suspicions were not helped by the delivery to the house of flowers sent to E W. In September 2007, K B said that the first defender came on a short visit to Scotland. He told her that he did not want to be with her any more. He would not engage in any further discussion. He visited her and the children from time to time thereafter at the main house on the second defenders' property where K B and the children continued to live until August 2008.

[85] K B, like the pursuer, formed her relationship with the first defender when he was a man of modest means and it was some years thereafter that the first defender achieved financial success.

[86] Sometime in 2007 or even before 2007, the first defender and E W formed a personal relationship. By this date the first defender appeared to be very rich. That relationship resulted in the birth of two children, in 2008 and in 2010.

[87] E W is a solicitor qualified in Scotland. She came to the attention of the first defender and became employed by I Co plc in circumstances which were not very clear from the evidence. She and her husband and two children left Scotland and went to live abroad as E W pursued her employment in I Co plc. It is plain from the evidence that the first defender was very reliant on her assistance at work. It is not clear from the evidence when the relationship changed. I consider it is likely that from at least July 2007 that had occurred.

[88] The first defender's relationship with E W did not alter his relationship with the pursuer. My impression from the first defender's evidence was that E W was not sympathetic to the pursuer's position. By 2008, the pursuer's condition had further deteriorated and she required to use a wheelchair. She had assistance for a time from her brother and assistance was also provided by staff organised by the first defender. These employees appear to have been paid through I Co plc albeit their duties appeared to be to live with and assist the pursuer. That was not explained. The first defender still took responsibility for the financial care and support of the pursuer and was still in touch with her. The holidays ceased in April 2007.

[89] According to the first defender, the precipitating factor in his request to the pursuer for a divorce on 5 December 2008 related to problems which E W and he experienced as a non-married couple with a child in Dubai. The first defender said that they had difficulties in obtaining a birth certificate for their child who had been born in late 2008. That was his explanation. There was no other evidence. I neither accept the evidence or reject it.

[90] The first defender said that he told the pursuer that he wanted a divorce because he wanted to have children. That was confirmed by the pursuer. It is plain from the evidence that even when he asked for a divorce in December 2008, he was unable or unwilling to tell the pursuer anything approaching the truth. I have no difficulty in accepting the pursuer's evidence in relation to this visit to her by the first defender. I am satisfied that at that time she had no idea of the extent to which the first defender had deceived her.

[91] I accept the evidence of R M, the brother of the first defender, that he also was deceived by the first defender for years about the nature of his relationship with the pursuer. He did not know about the birth of the first defender's children. I accept R M's evidence that after 2008 when he challenged the first defender, the first defender said he had not told him "because he had a big mouth". He was not trusted by the first defender to keep the secret from the pursuer. Other members of the first defender's family knew about K B and the children. E B and M M, were equally astonished at the revelations about the first defender's children. The critical attitude to the first defender, which was obvious in the evidence of M M, is easily explicable by her astonishment at the nature and length of the deception. I do not consider that undermines her evidence.

[92] I accept that the pursuer was never informed by the first defender about his involvement with other women and his children. She found out some information after the relevant date and further details were disclosed in the course of the action.

[93] According to the first defender, his relationship with E W broke down in March 2010. He said that this was because he had deceived E W about various matters including his continued relationship with the pursuer at a time when he was in a relationship with E W. According to the first defender, his relationship with E W is over. He stated that he would continue to see his children who live with E W in America some miles away from the accommodation of the first defender. That was information which P W said she did not know. I accept that there may have been a separation but make no finding. I also make no prediction about the future of the relationship between E W and the first defender on the basis of the very limited evidence available to me.

Evidence about the health of the pursuer and the first defender

[94] Both parties gave general evidence about this and I have no reason to doubt their oral evidence in respect of this as it was borne out by other evidence.

[95] There was evidence from Dr Al'khayer about the health of the pursuer. This was not disputed and I had no difficulty accepting the evidence. Dr Al'khayer had impressive medical qualifications and expertise as a specialist registrar in rehabilitative medicine. Under reference to the medical records 6/234 he explained that a diagnosis of multiple sclerosis had been made. It is the type of disease which "comes and goes". There has been a marked deterioration in the last few years to the extent that the pursuer is no longer able to walk. Until she broke her collar bone before Christmas in 2008, she was able to transfer independently from a wheelchair. She lost that ability.

[96] The full details about the pursuer's condition are contained in the medical report of Dr Al'khayer 6/20. The prognosis is very poor. With the passage of time, the pursuer may become incapable of independent life. It is impossible to predict whether the deterioration might take years or months. She is prone to depression and low mood. In cross examination there was some discussion about state funding for carers. Dr Al'khayer was unable to assist as to what might be available for the pursuer. He accepted that at present she was coping and that there was the possibility of a further reference for further rehabilitation.

[97] I am in no doubt that the pursuer's medical condition is very grave and her lifestyle and circumstances very difficult. She has lost the live-in carers and financial support which the first defender had provided directly or indirectly through the company. She has lost the emotional support which the first defender also provided. The pursuer accepted that his provision in the past has been generous. In fairness to the first defender, I consider that he is genuinely distressed by the condition of the pursuer and her welfare needs.

[98] It is perhaps ironic in the context of this marriage that it was the health of the first defender which precipitated the return to Scotland when the first defender lost his employment in 1997 and was given a pension by Cable and Wireless. His underlying condition is a blood clotting problem. I did not hear much evidence about this. The first defender described it as the opposite to haemophilia which is not a very scientific explanation. In a sense it was as a result of these health problems which led indirectly to his new job opportunities in Leeds and to the business opportunities which resulted in the creation of I Co plc.

[99] There was some evidence, which I accepted, that in 2005 the first defender had concerns about his health and that was one reason why he wished to provide some security for his children by establishing the Trust. I also accept that the stress of his business, the associated lifestyle and the subsequent collapse of both his business and personal life must have created enormous stress on the first defender. During the proof, the first defender was suffering from some minor illness.

[100] Further problems occurred after the first defender had given evidence. These were the matters which formed the basis of the Minute of Amendment. Further documentation, including affidavits, were produced. In his affidavit of 12 January 2011, the first defender gives his account of the history of his problems. I accept that the symptoms must have been very concerning to him and painful. I have no difficulty in accepting his affidavit as an account of his perception and reaction to his medical problems. I also do not find it surprising that he is concerned about the effect his medical history might have on his future employment prospects in America.

[101] I have also taken into account the comments in the reports by Dr Lees in 6/332 and 6/333 of process. I understand that neither counsel for the pursuer or the first defender had objection to my consideration of the written productions and affidavits in the circumstances. I do not understand that there is any significant dispute that the results of the current bout of ill-health of the first defender are likely to pass within a relatively short period of months.

[102] I consider that the other concern raised about the employability of the first defender is a real issue, albeit not only because of his current illness. His age and prior history in themselves may cause him difficulty. The first defender clearly impressed his employers in Leeds. He has demonstrated enormous energy. He has grasped and developed an unexpected business opportunity in establishing I Co plc. That should not be understated or underestimated. I consider that he might be identified as an interesting employee. He has contacts and friends. In my opinion his best employment opportunities may lie in developing these contacts. But he also has a history of being involved in a spectacular business crash.

[103] During the first defender's evidence, the first defender was very optimistic about his future opportunities. In my opinion he seemed over-optimistic. Nonetheless I consider it is likely that in the longer term, the first defender will find the ability and energy to reinvent himself. I consider that he will be fortunate if he achieves substantial earnings. I think it is likely that he will achieve at least modest earnings. I certainly do not expect him to make the millions which would satisfy any tax claim by HM Revenue and Customs. I accept that the first defender's future financial prospects in relation to earnings are more favourable than those of the pursuer. The pursuer has no such prospect.

[104] I now turn to consider the pursuer's claims for financial provision.

The Scheme under the 1985 Act relating to Orders for Financial Provision

The Legislative Structure

[105] In terms of section 8 of the 1985 Act, in an action for divorce, either party to the marriage may apply to the court for one or more of the following orders including the payment of a capital sum, an order for the transfer of property, an order for the making of periodical allowance and a pension sharing order.

[106] Section 8(2) provides that subject to sections 12 to 15 of the 1985 Act, when application has been made under subsection (1) above, the court shall make such order, if any, as is (a) justified by the principles set out in section 9 of this Act; and (b) reasonable having regard to the resources of the parties.

[107] In terms of section 9(1) it is provided that:

"the principles which the court shall apply in deciding what order for financial provision, if any, to make are that -

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage...

(b) fair account should be taken of any economic advantage derived by either person from contributions by the other, and of any economic disadvantage suffered by either person in the interests of the other person or of the family;

...

(e) a person who at the time of the divorce or of the dissolution of the civil partnership seems likely to suffer serious financial hardship as a result of the divorce or dissolution should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period."

[108] Section 10(1) provides:

"10. - (1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property or partnership property shall be taken to be shared fairly between the persons when it is shared equally or in such other proportions as are justified by special circumstances.

(2) Subject to subsection (3A) below the net value of the persons property shall be the value of the property at the relevant date after deduction of any debts incurred by one or both of the parties to the marriage...-

(a) before the marriage so far as they relate to the matrimonial property...so far as they relate to the partnership property, and

(b) during the marriage...which are outstanding at that date."

[109] Section 11 sets out factors to be taken into account in applying the principles set out in section 9. Reference is made in section 11(5) to factors relevant to section 9(1)(e). In section 11(7) it is provided, subject to some exceptions, that the court shall not take account of the conduct of either party to the marriage in applying the principles set out in section 9.

[110] These are the main sections which require some consideration in relation to the facts of this case. Section 9(1)(a) was the main section to which reference was made. Senior counsel for the first defender also prayed-in-aid to some extent section 9(1)(b). Senior counsel for the pursuer, in relation to issues about periodical allowance, also made reference to section 9(1)(d) and (e) in the event that no substantial capital sum was awarded.

[111] In general terms the 1985 Act provides that it is necessary to identify the matrimonial property at the relevant date. Thereafter it is necessary to work out the net value. The next step is to ascertain whether any order for financial provision is justified by the principles of section 9, in this case by reference in particular to section 9(1)(a). In doing that it is necessary to take into account the terms of section 10. In applying the principles set out in section 9, it is also necessary to have regard to any relevant factors set out in section 11. I trust that is all clear.

[112] There was no dispute that the general approach required by the statutory scheme under the 1985 Act involved an exercise described by LP Hope in Little v Little 1990 SLT 785 at 786L to 787C. LP Hope stated that:

"The Act sets out in considerable and almost clinical detail the nature of the property with respect to which orders may be made, the principles which are to be applied and the factors which are to be taken into account. No stone seems to have been left unturned in this analysis. The court is taken step by step through a complicated checklist of provisions to which it must have regard, so that no point which might conceivably be relevant is at risk of being forgotten as it proceeds through the exercise to the result. There is no doubt that this approach makes considerable demands on the court of first instance. The greater attention to detail in the legislation the greater the risk that litigation will expand. In consequence the risk is also greater that points will be opened up from time to time which may properly have to be examined on appeal. But despite all the details much is still left to the discretion of the court. This is clear from examination of s. 8(2), which provides that the court shall make such order, if any, as is justified by the principles set out in s. 9 and reasonable having regard to the resources of the parties. The concept of sharing the net value of the matrimonial property fairly, the flexibility of which is given by the expression 'special circumstances' in s. 10(6) and the repeated references in s. 11 to all the other circumstances of the case serve to emphasise that, despite the detail, the matter is essentially one of discretion, aimed at achieving a fair and practicable result in accordance with common sense."

The case of Little was referred to in Sweeney v Sweeney (No. 2) 2006 SC 82 at page 88 paragraph 14. The Opinion of the court stated that:

"an order made on an application for financial provision on divorce must, subject to sections 12 to 15 of the Act, satisfy the dual criteria being (a) justified by the principles set out in section 9 and (b) reasonable, having regard to the resources of the parties (section 8(2)). The only principle specified in section 9 which is applicable for present purposes is that in section 9(1)(a), namely, that the net value of the matrimonial property should be shared fairly between the parties to the marriage, that principle itself being regulated by the provisions of section 10. 'Resources' means present and foreseeable resources (section 27(1))...while there may be a logical order in which the application of these provisions should be addressed, it is important to bear in mind that it is the end result, in the terms of the order made, which, regarded as a whole, must satisfy the statutory requirements."

[113] I consider that the statutory provisions and the way in which the case was presented by senior counsel for the pursuer and first defender require me to work through the checklist of provisions in the 1985 Act. I will leave others to assess the utility of that exercise in the circumstances of this case.

Matrimonial Property at 5 December 2008

[114] Much time and expense in the proof was taken up identifying and valuing the net value of the matrimonial property at the relevant date (5 December 2008). These are my findings.

Agreed Matrimonial Property Owned by the Pursuer

17 Woodvale Avenue, Glasgow (the house in which the pursuer lives)	£420.000
SPPA pension (capitalised)	£170.000
Cash in the bank: Halifax ISA RBS account 5251270 RBS account 659245	£3,552 £2,494 £12,115
Total	£608,161

Agreed Matrimonial Property Owned by the First Defender

Cash in the bank: RBS account 00223331 Adam & Co account 22601700 Adam & Co account 22601753 Adam & Co account 22601750	£4,954 £17,887 £41,086 £3,692,778
Investments: BT shares Cable & Wireless shares F & C Investments ISA	£1,577 £12,188 £6,386
Pensions: Cable and Wireless pension (capitalised) BT pension (capitalised)	£624,871 £60.000
Total	£4,461,727

The Shares in I Co plc: Valuation as Part of Matrimonial Property
History of I Co plc

[115] When the first defender moved to BT in Leeds in 1997, he became involved in the development of telephone handsets. A project which had been taken forward by the first defender on behalf of BT was stopped by BT. The first defender identified a business opportunity. He used his skills and business contacts which included Microsoft to set up a business along with a small team whom he persuaded to leave BT. Within about three years, the company I Co plc which he had formed became very successful. By 2005 the company had permanent staff of about 250 and additional contract staff. The first defender's expertise was in the technical field. For the rest, he said, he relied on professional advice. The first defender stated that there were sales in 157 countries and that he was at the heart of the expansion and also the flotation. He explained that E W was a valued member of the team. She had left private practice as a solicitor in Scotland in August 2002 and moved to Dubai with her then husband and two children. I Co plc was floated on 25 September 2005. The first defender said that he worked 18 hours a day, 7 days a week. Allowing for some descriptive license I accept this general account.

[116] As a result of the flotation of I Co plc, the first defender became very rich. He estimated that the high point of his wealth was in 2006 when he described himself as "rich as the queen on paper" but 95-96% of his wealth was based on the value of the shares. Although the shares were very valuable, as a result of the agreements which had been made, he was not entitled to sell shares for a period of two years so he was unable to take advantage of the high price of the shares at that time. The accounts 6/34 of I Co plc to 31 March 2006 record the high point period. In contrast the accounts 6/75 to 31 March 2007 describe the year as "a very challenging one...in all areas of operation". Multiple problems are described. Restructuring was carried out. Further problems emerged in 2008. By 5 August 2009 (6/307/1 of process) the first defender wrote:

"Dear all, it is with deep regret that I have to inform you that this adventure may be almost over. We are holding on by our fingertips on the edge of the parapet..."

He gave information about alleged fraud in the company. He stated:

"I put in all of my personal $6M to sit on the books so that the company had a good cash balance, which would help to raise funding, although this was not to be used..."

He explained:

"The position is we have no cash in the bank, we have not paid salaries to most of the staff for the month and we have total liabilities of about $4." (4 million dollars).

He described various attempts which were being made to save the company. I am satisfied from the evidence that the company was not saved. The details of the history were not always confirmed by other evidence but I do not consider that the details are relevant in this proof. I am satisfied that there is no question in this case that the collapse of the company or its troubles had anything to do with matrimonial issues.

[117] It was not disputed that the first defender owned the controlling interest in I Co plc, about 77% of the shares namely 92,864,243. The pursuer owned 600,000 shares in said company. These shares had been given to her by the first defender.

[118] There was a major dispute in the evidence about the approach to valuation. This dispute related to the evidence of Fiona Martin and Greig Rowand. Both gave evidence on the basis of their respective reports. Both were aware of the different approaches taken. Fiona Martin made certain concessions in the light of her knowledge of some of the views expressed by Greig Rowand. The fundamental difference in approach was that Fiona Martin valued the shares in I Co plc at 5 December 2008 on the basis that the business was "a going concern". She was much influenced by the report of the auditors and the confident presentation by the first defender. Both were optimistic, despite the existence of what I consider, on the evidence of Greig Rowand, to be very worrying company accounts.

[119] A different approach was adopted by Greig Rowand who valued the shares on "a break-up basis". He had a fall back valuation based on the multiplier of the price of individual shares on AIM when the company was listed. I accept that he was uncomfortable with the fall back position. I consider, however, that a worrying feature must be that the value of the shares in I Co plc had "dropped like a stone".

[120] I had no difficulty in concluding that the approach adopted by Fiona Martin was totally unrealistic. I consider that the auditor's report relied on by Fiona Martin was for a different purpose and did not represent the results of due diligence which would be carried out by a potential purchaser. I consider that the detailed submissions made by senior counsel for the first defender at pages 4-7 of 105 of process are in accordance with the evidence and are well founded for the reasons given. I also consider that a fundamental criticism made by senior counsel for the pursuer of Greig Rowand's approach misunderstands that approach. Greig Rowand did not rule out that I Co plc might be bought and run as "a going concern". His approach was that in assessing what would be paid by a willing buyer to a willing seller, he could not conceive that anyone would be prepared to pay and value the shares on the basis set out by Fiona Martin because of the many and obvious problems associated with the company which were plain on the face of the company accounts and the statement by the first defender as chairman. Break up value was the only amount he could conceive anyone paying, even if the buyer was willing to take the risk of running the company. This was a loss making company with serious recent problems. He considered that even if a buyer was prepared to take a risk with the company as a going concern, that would not be reflected in the actual price paid. If one moves from the artificial exercise of the valuation to the real world, he accepted that a contract might include the purchase price an uplift to take account of future profits if they occurred. But in reality there were no such future profits with I Co plc

[121] The evidence of Fiona Martin was to the effect that on her basis of valuation, the value of the pursuer's shares was £8,940 and the value of the first defender's shares was £13,837,507. The evidence which I accept, on the basis of the valuation approach of Greig Rowand, was that the value of the shares owned by the pursuer at the relevant date was £3,007. The value of the shares owned by the first defender at the relevant date was £4,643,212.

[122] Having carried out the statutory exercise of valuation of the shares, it may be helpful to consider this part of the matrimonial property in a broader context.

[123] This is a case in which the pursuer, because of the history of the marriage which I have narrated, and because of her illness in fact played no part in the business life of the first defender. From at least about 1998 when the first defender lived and worked in Leeds, the first defender effectively looked after himself or was looked after by K B. K B looked after his child and then children.

[124] The first defender by his own efforts which involved risk, exhausting activity and effort built up a business which became I Co plc. The evidence which related to this and the spectacular failure of the company was fascinating and worthy of a PhD thesis in business studies but the details are not in my opinion relevant to my task. As at 1998, the first defender had no significant capital assets but he subsequently became very rich. For example as at September 2005, when I Co plc was floated on AIM, the first defender received cash of £10 million and his shares had a paper value of approximately 200 million. Unfortunately for all the parties in this case, the resources of the first defender by the time of the proof were very limited. The significant wealth which the first defender had for a few years from 2005 was based entirely on his earnings from I Co plc (which ceased in 2008 because of difficulties in the business), the cash sum of £10 million realised on flotation and the value of the I Co plc shares. I have no difficulty in concluding that I Co plc shares were valueless by the time of the proof. The 92 million shares owned by the first defender and the 600,000 shares owned by the pursuer had in my opinion the same nil value. Equalisation, so favoured by the 1985 Act, had taken place in the real world because I Co plc had failed. So looking to resources based on share values at the time of the proof the share value is nil.

[125] In my opinion if one leaves aside the fictional exercise of valuation at the relevant date by a willing buyer and willing seller, I would conclude in this case that in any event as at the relevant date, there was in fact no willing buyer at any price. That was because evidence which I accept was that I Co plc had attempted in 2008 to generate interest in a buyer but that in fact had not attracted any interest. I consider that is not surprising in circumstances in which the company's results could reasonably be described as disastrous involving litigation and many problems in relation to stock and research at a time when there was a crisis with bank lending. And with hindsight that lack of market response was well justified as the company crashed by the summer of 2009.

[126] I accept however that in the context of the exercise required by the 1985 Act, the total matrimonial property, represented by I Co plc shares owned by the pursuer and the defender at the relevant date is respectively £3,007 and £4,643,212. It appears that I must in terms of the Act give them a valuation on a hypothetical basis on the basis of the evidence of valuation even if no-one wanted to buy them. These figures therefor represent my findings in relation to this part of the exercise.

Submissions by senior counsel for the pursuer that additional matrimonial property was owned by the first defender on the relevant date
[127] This chapter relates to the submissions made on behalf of the pursuer at 3.2 of the written submission (104 of process). It is submitted that in the period of 21 months before the relevant date, the first defender had other property but that he has not accounted for that property for the purposes of the proof. I was invited on the basis of L v L to draw the inference that the property was still retained by the first defender on the relevant date and therefore formed part of the matrimonial property at the relevant date.

[128] This chapter of the submissions by senior counsel for the pursuer is related to her criticisms about alleged failures by the first defender to produce documentation and verify various financial transactions. These transactions are set out in detail in paragraph 3.2 of 104 of process. The evidence of Hazel Sasan and Alan Hamilton relate to this and the difficulties the pursuer's agents experienced in obtaining information.

[129] Firstly let me deal with the general criticism. I accept that there was some absence of vouching and some lack of clarity in the first defender's evidence about these transactions. I also accept that the first defender did not present himself in Scotland with all the paperwork which the agents for the pursuer would have wished. But I am reluctant to draw the inference that senior counsel invited me to make. There appeared to be problems with his finding solicitors to deal with the vouching. I was satisfied on the evidence that the first defender was dyslexic. He relied heavily on professional paid advisers, lawyers and on staff at I Co plc, in particular E W, in relation to his personal, financial and business affairs. The first defender was a man who had built up a gigantic and complex business over a relatively short period. He described himself as "living in airports" as he traversed the world on company business. That might be a rather colourful description but I do accept that his energies were very directed to the business and that he travelled internationally for a major part of his work. His personal life, as I have found, was complex and he had many and varied demands upon his time and money. He regarded himself during the period 2005 to 2008/9 as a very rich man. I am satisfied that the first defender did not pay a great deal of attention to what happened to sums of money which could be regarded as very substantial. The evidence, including evidence from the pursuer and K B, demonstrates that the first defender was always generous with shares, cash, houses, money, holidays and jewellery. He displayed that generosity to business colleagues, family and friends. There was no suggestion in the evidence that the first defender kept any personal record of his expenditure at the time. At the time the various transactions referred to in paragraph 3.2 were made, I have concluded that the first defender paid little attention to the details of where the money went and where it came from. He took the attitude that he had plenty of money and he did not pay much attention to the details of these transactions. By 2009, the first defender was totally involved dealing with the problems in I Co plc and attempting to save and then salvage I Co plc and the remains of his wealth. He thought the divorce and the paperwork were the least of his worries at the time.

[130] I turn now to consider the first challenged asset namely the Emirates Bank account. In my opinion, the first defender in his evidence was candid in accepting that the Emirates Bank account was likely to have contained a balance of approximately £346,000 on 5 December 2008. It was not disputed that he had such an account. There may be problems as to whether he could access that account because of the circumstances in which he left Dubai. In any event it is not clear at the time of the proof whether there is any money remaining in that account. According to the first defender, he used that money in making the loan in 2010 to I Co plc. For the purposes of the valuation exercise involving matrimonial property I have concluded that the sum of £346,000 should be added to the matrimonial property valuation as technically, on the evidence, that money existed in the first defender's bank account at the relevant date.

[131] In relation to the other property transactions specified by senior counsel for the pursuer, I am not prepared to draw the inference sought. That is partly because I am persuaded by the reasons advanced by senior counsel for the first defender set out at pages 8 to 10 of 105 of process. It is also because of the view I take about how the first defender spent the £10 million cash over the period from 2005 to the relevant date. Under reference to 6/239/1 the first defender gave an explanation in broad terms of how he spent £10 million. I accept that he gave less than £3 million to colleagues and friends. I make no finding whether that was contractual or a gift. The first defender alone gave evidence about the reasons. But there was no dispute that substantial monies were paid. The monies were in fact paid by the pursuer, through her own account, at the first defender's request. This is an example of the trust which the pursuer displayed in relation to the first defender. She did not appear to have questioned him about this very unusual transaction. I consider that there is a considerable underestimate of the sums paid directly or indirectly in respect of the Trust in 6/239/1. I am satisfied that 6/239/1 there is broadly an explanation for the way in which the first defender managed to divest himself of £10 million. I am not therefor persuaded that there are hidden assets which are not explained.

[132] Senior counsel for the pursuer was very critical of one of these transactions which involved P W when she acted for both the pursuer and the first defender. Let me deal with that. I accept that P W became involved in acting for the first defender because her daughter, E W was involved with the first defender's business. According to P W, the first defender "just wanted to pass business to someone associated with a person who worked for him". She first acted in 2005 in relation to the sale of the St. Michael's Drive property. P W never met the pursuer. She took instructions from the first defender on the understanding that the pursuer wished this. P W appeared to be aware from about 2005 that the first defender had a relationship with K B and children by her. She was aware that the first defender lived abroad most of the time. Apparently this did not cause her to pause for thought when she acted for both the pursuer and the first defender, without clarifying with the pursuer the situation and her circumstances. Conveyancing deeds described the first defender as living with the pursuer in Scotland. P W did become concerned when she received funds of £320,000 from a source which was apparently unexplained. But for the rest, she seemed blithely unconcerned even when she transmitted funds which on the face of it were joint funds of the pursuer and the first defender in relation to the sale of a house in joint names to the first defender only.

[133] Although I have some sympathy with the criticisms made by senior counsel, her criticisms are not in my opinion fairly founded against the first defender. The first defender is not a solicitor and not experienced in conveyancing transactions. I consider that he might be entitled to assume that P W would carry out transactions appropriately. I do not accept that P W was in some way overborne by the first defender to disadvantage the pursuer. Although prima facie this chapter of evidence seems unsatisfactory in the way the pursuer was treated, I conclude that both the pursuer and the first defender took the view at the time that it was acceptable for the proceeds to be paid to the first defender. In 2005, the pursuer had complete trust in the first defender. She accepted that the first defender had provided the funds to purchase the replacement house. I did not understand the pursuer to be critical of the fact that the first defender received the full proceeds from the sale. I consider that at the time these events occurred, the first defender would have readily given to the pursuer the free proceeds in whole or in part, had she requested that. I consider that the reality of the situation at the time was that the pursuer had every confidence in the generosity of the provision made for her by the first defender. The first defender was happy to meet the financial needs expressed by the pursuer and even anticipate needs which she had not expressed. He was generous to the pursuer. At the time he considered himself to be very rich and he did have more than sufficient funds to meet her needs.

[134] The loan to E W in my opinion is in a different category to the other transactions referred to by senior counsel for the pursuer. It was not disputed that in about 2006, the first defender lent to E W a sum of approximately £800,000 to enable her to purchase, with her then husband, a home for herself and the two children of her marriage. That purchase was made. The first defender gave evidence that there was a loose arrangement in relation to repayment. Senior counsel for the pursuer accepted that a payment of approximately £200,000 was identified in the Emirates account in September 2008. The first defender said that there were other payments and that "he did a deal" with E W eventually to agree that the loan had been repaid. It was far from clear from the evidence that the whole sum was repaid and I infer that full repayment was probably not made. It is not possible for me to determine how much was unpaid. In any event I do not consider that this was an asset actually or by inference which was part of the matrimonial property at the relevant date. It is merely an example of one of many payments made by the first defender to others for reasons that he no doubt considered to be good reasons at the time. There were many such payments by the first defender including of course payments of millions of pounds to the second defenders.

[135] In respect of said payments to the second defenders, there is of course a claim under section 18 of the 1985 Act and I discuss that later in paragraphs ??.

[136] The value of matrimonial property is to be assessed in terms of the 1985 Act as the net value. I now turn to consider therefor the issue of the potential tax liabilities of the first defender.

The Net Value of the Matrimonial Property

Potential tax debts owed by the first defender to HM Revenue and Customs

[137] It is not disputed that if there were debts incurred as a result of tax liabilities from income or as a result of the flotation of I Co plc, that the debts were incurred during the marriage before the relevant date. In my opinion the correct approach would be to deduct the tax debts from the gross value of the matrimonial property. That is the basis on which senior counsel proceeded. On one view I accept that is fair to the first defender but there are problems in my opinion with that approach to this case.

[138] Craig Thomson explained that Deloitte and Touche acted for the first defender on a personal basis from spring 2007 to April 2010 in relation to the problems about the tax issues. He explained that the first substantial letter written to the HMRC was 6/239/3 of process. He considered that the main dispute centred round the period 2003/07 and related to whether the first defender was resident in the UK during that period in terms of the tax rules.

[139] He regarded the tax issue as an open question still unresolved as at April 2010 when Deloitte and Touche ceased to act. He explained the difficulties in this exercise and the efforts which were made to try to reconstitute the movements of the first defender from bank and credit statements. He accepted that risk factors in relation to tax liabilities might arise where there is a domestic life and children in the UK and there has been use of UK property.

[140] He explained the rules of assessments, with reference in particular to 7/57 and 7/69 of process. His assessment was that no real inquiries had been made by the tax authorities about the liability of the first defender and the tax assessments were not in his opinion the end of the matter. The understanding of Deloitte and Touche was that the first defender was non-resident. By about 2007 it appeared to his advisers that there might be arguments both ways. The residency issue was critical. If the first defender was non-resident, no tax was payable. That was not in dispute. The issue was whether he was non-resident for tax purposes at the material time

[141] Lauchlan Fernie gave evidence relating to the assessments 7/69, 7/58 and 7/57. He explained that there was no final view of HM Revenue and Customs in relation to the tax year 2004/05 and 2005/06. He also explained the effect of business taper relief at 10% on capital gains. There was some discussion of the powers of HM Revenue and Customs to trace and seize assets disposed of by gratuitous alienation. His understanding was that there was a 5 year period during which gratuitous alienations could be challenged. He said that HM Revenue and Customs has not as yet established any liability on the part of the first defender. He accepted that the first defender had not paid any tax since 2002/03. He thought that HM Revenue and Customs might act if money was transferred from the second defenders into the hands of the first defender as a result of a court order. The mechanics or likelihood of this was not explored.

[142] The main evidence about the tax position from the perspective of HM Revenue and Customs was given by Colin Kane. He was aware that the first defender had made a claim that he was non-resident for tax purposes. It was not disputed that if the first defender qualified as non‑resident during the relevant tax years there would be a nil tax liability. He investigated this claim made by accountants acting on behalf of the first defender and requested details about the circumstances and number of visits to the UK in order to enable him to form a view. Colin Kane explained that if a person leaves the UK and returns for 183 days, HM Revenue and Customs conclude that the person is resident in accordance with the legal rules. The position is less clear if a person spends more than 91 days but less than 183 days in the UK for 4 years. The question of residence or non‑residence will depend on the view taken about the quality of the visits and the background circumstances.

[143] The accountants advised HM Revenue and Customs that there were some difficulties about the paperwork because a briefcase containing relevant papers had been stolen. For the period 2003/04, there were missing papers. For 2004/05 and 2005/06, it was submitted that the first defender was in the UK for less than 91 days. But these figures were not agreed. Thereafter different accountants from Deloitte became involved on behalf of the first defender. A meeting took place. There were discussions about 6/219 and 6/220 of process. In relation to 2006/09 there was delay by the accountants in producing information. There were many documents (not productions) which accountants and the staff at HM Revenue and Customs looked at in detail. There were disputes about the number of days the first defender had been in the UK. Some of the information was difficult to interpret. There were a lot of grey areas. The date on which the first defender left the UK might be important. The first defender claimed that he left in February 2003. Different considerations might apply if he left in April 2003. Eventually the assessments 7/69 and 7/58 were raised. In addition an assessment for capital gains tax of over £6 million was raised in respect of the year 2004/05. This was probably the wrong tax year as it related to the I Co plc flotation in 2005. That was on the basis that there had been a realisation of gain of £55 million. Colin Kane was aware that the cash received by the first defender was £10 million but he did not consider that to be the end of the matter. He considered that there was a complex transaction involving a disposal of shares of £55 million. This approach in relation to a claim based on £55 million was not supported by Craig Thomson or Lauchlan Fernie and seemed to be a fall back position of Colin Kane. Colin Kane wished to discuss the matter further with the first defender after this case as he considered the first defender had knowledge which would be useful.

[144] My conclusion from the evidence of Colin Kane is that HM Revenue and Customs are still interested in pursuing the first defender for both income tax and capital gains tax. The total figure put forward by senior counsel for the pursuer of approximately £2 million is in my opinion the most likely outcome if tax is found to be due. There is a risk that the sum in respect of capital gains might be based on £55 million giving a figure of approximately £6 million, not £1 million, for tax on capital gains. On the evidence which I have considered it is impossible for me to conclude whether it is likely that the HM Revenue and Customs will conclude that the 91 days has been exceeded. Even if the 91 day figure has been exceeded, all that means is that a more detailed investigation about the quality and circumstances of the periods of residence will be required. I am not in a position to conclude that in any particular tax period, the first defender spent more than 91 days in the UK. My general impression from the evidence was that he spent little time in the UK. He was certainly aware that there were tax implications flowing from his residence. He seemed to have many and varied professionally qualified advisers in a position to advise him how to minimize his liability for tax. His intention certainly was to do so. Whether he was careless or inattentive to the number of days, I am not in a position to say.

[145] In any event, I am not in a position to assess the outcome of a future detailed assessment which might be made by HM Revenue and Customs. The fact that they seemed unable to bring this matter to a conclusion when the first defender had cash assets of some millions and held shares in I Co plc with a paper value of many millions does make me question whether they will spend the necessary time and effort to pursue him in the future, as his resources appear extremely limited. I have no difficulty in accepting the first defender's evidence that he will maintain his position that he was non-resident at the relevant time and take any necessary steps to appeal any tax claim. In these circumstances, I consider that it is unrealistic to approach this matter on the basis of a £2million tax liability to be deducted from the valuation of the matrimonial property.

[146] I am prepared to conclude on the basis of the evidence which I have heard that there is a potential tax liability for £1 million for capital gains plus £1 million for income tax. I consider it improbable that the first defender will ever end up paying £2 million or some greater sum. I consider it probable that HM Revenue and Customs will eventually accept his position or give up the claim because of his lack of funds and the cost of pursuing the claim. I do consider, however, that the first defender may be more at risk if he obtains employment or develops a business in which he has substantial future earnings. Whatever happens I consider that it will be a lengthy period until any final resolution.

[147] All I am prepared to do is to take these potential debts into account in a very general way in assessing present and future resources.

Resources of the pursuer and first defender at the date of the Proof

Financial transactions by the pursuer after 5 December 2008
[148] The pursuer suffered shock and great distress at the first defender's request for divorce. Not surprisingly she sought legal advice. On 22 January 2009, the first defender's then solicitors sent a Minute of Agreement to the pursuer for signature on the basis of a separation dated on or about 15 February 2002 (6/4 of process). That was not accepted by the pursuer. That date did not correspond with the date in 1998 when the first defender said his attitude to the marriage changed. The date does not correspond with the evidence. The summons for divorce by the pursuer with financial claims was signetted on 23 February 2009.

[149] The only substantial money the pursuer received from the first defender after the relevant date appears to have been paid by the mistake of the first defender's then solicitors. They paid a sum of £100,000 due to the first defender into his joint account with the pursuer. The pursuer withdrew most of said sum. Thereafter the first defender withdrew most of the balance, £15,000 from the same account.

[150] In January 2009, the pursuer changed her practice in relation to the credit card funded for her by the first defender. I accept that more cash than usual was withdrawn on her behalf. This was noticed by the first defender and annoyed him. He considered that the pursuer was abusing the facility. In the context of the circumstances, I consider that criticism is unjustified.

[151] On 10 December 2009, the pursuer was granted £800 per month as interim aliment. This has been paid from funds owned by the first defender which have been arrested.

[152] The pursuer has not embarked upon any additional spending and has restricted her personal spending since the relevant date.

[153] Taking the matter broadly, I am satisfied that the pursuer's resources at the date of the proof are very similar to the part of the matrimonial property owned by the pursuer which I have set out in paragraph .

Financial transactions by the first defender after 5 December 2008
[154] There has been a marked difference in the first defender's resources from the relevant date to the proof.

[155] I accept that the first defender intended to make financial provision for the pursuer in the event of divorce. He considered that she was vulnerable and that her needs would be best served by income. He initially had in mind setting up some provision whereby she would have access to £5,000 per month, albeit he did not expect her to spend that sum per month. The mechanism and funding appear to be at an early stage of consideration by the first defender. His attempts to obtain a quick settlement foundered when the pursuer, to his surprise, refused to agree. The first defender who was absorbed by problems in I Co plc did not foresee the troubles unleashed by divorce proceedings raised by the pursuer.

[156] During December 2008, the pursuer did not disclose to anyone her discussions with the first defender and the first defender thought that she would agree to his terms. The first defender continued to be helpful to the pursuer in relation to her practical needs. He also gave her a cheque for £500,000. Shortly thereafter he stopped the cheque. He had decided that he needed the money for his own purposes.

[157] In addition to trying to obtain divorce and resolve financial issues with the pursuer, the first defender also purported to make a settlement in December 2008 with K B. During a meeting with her, he gave her a cheque for £1 million for her security. He stopped the cheque. No explanation was given by him to K B. I am not prepared to make any finding as to why the payment to the pursuer and K B was stopped. No persuasive evidence was before me.

[158] K B did receive funds of £36,000 in April 2009 which she was told by the first defender was the equivalent of a year's payment to her. Up to 2009 she received £3,000 per month from the first defender and in addition all the school fees were paid by the first defender, albeit there seemed to be some arrangement made through I Co plc. K B considered legal action in February 2010 for aliment. By the date of the proof an action for aliment had been raised by K B in the sheriff court.

[159] Various payments were made between 5 December 2008 and 29 January 2009 by the first defender to contractors working on the main house owned by the second defenders. These payments totalled £399,843. In addition, on 17 December 2008 the first defender transferred £115,732 to the second defenders.

[160] On 3 February 2009, the first defender loaned £2,220,729 to I Co plc. He explained that this loan was meant to be ring-fenced in the company and not used for its day-to-day needs. The loan was to help the balance sheet. At the time the loan was made, the first defender said he understood that the company was healthy. He said that part of the funds for this loan came from the Emirates account which he used for this purpose. The position is not entirely clear.

[161] On 3 February 2009, the first defender gave E W £1 million. He explained that he had made provision for the pursuer and K B but that he had not made provision for E W "so he thought she should have something".

[162] If one looks at the property held by the first defender on the relevant date it is plain that as a result of these transactions, the first defender had substantially reduced the funds available to him. At the relevant date he had cash in various bank accounts including the Emirates bank account of over £4 million (4,954 + 17,887 + 41,086 + 3,692,778 + 346,000). But as a result of various transactions he divested himself of most of that cash. During this period the first defender lived with E W at least until about March 2010 and apparently continued to live the lifestyle which he had adopted as a man of wealth.

[163] The first defender gave evidence that he had very limited resources which were basically restricted to his Cable and Wireless pension and BT pension. In broad terms he said the resources available to him at the relevant date of some £4 million had shrunk to capitalised pension resources of approximately £700,000.

[164] I accept that the first defender devoted a great deal of time to trying to sort out the difficulties caused by the problems and the failure of I Co plc. His finances have been the subject of a major investigation by the Legal Aid Board which he also found very time consuming. He is unemployed. His health has caused difficulties. His personal relationships appear to have all failed. I accept that it was never the intention of the first defender to lose his capital by making the loan to I Co plc.

[165] Nevertheless I conclude that the first defender divested himself of most of his cash and made no adequate provision for the pursuer at a time when he knew she had substantial claims. I conclude that at the very least this must be considered reckless and irresponsible. I do not address the issue whether it was in breach of interim interdict as no such proceedings were before me. But I am in no doubt that it is because the first defender has basically given away most of his money both before and after the relevant date that he has now such limited resources.

[166] In evidence, the first defender said he was willing to have the pension of the pursuer and his pensions roughly equalised by the transfer of a sum equivalent to £200,000. I understood from senior counsel at the end of the proof that his instructions in relation to that had changed because of his recent ill health.

[167] Senior counsel for the pursuer submitted that Hillfoot Limited has an obligation to repay the loan in excess of £2 million to the first defender. I accept that because I Co plc has collapsed, the first defender will not receive repayment from that company of the loan in excess of £2 million. Certain assets were acquired by Hillfoot Limited which is a company registered in the British Virgin Islands. I consider there may be some merit in the criticisms made by senior counsel for the pursuer about the lack of vouching and information about Hillfoot Limited (para 5.8 of the submissions, 104 of process). It was not disputed that Hillfoot Limited took over some of the assets of I Co plc and the obligation to repay the loan to the first defender. There was no evidence that this company had ever traded.

[168] I cannot rule out the possibility that at some future date, the first defender may receive some money from Hillfoot Limited albeit I do not consider that likely. I have found that there might be some future tax debt established by HM Revenue and Customs. In that event, the gain and debt may just about cancel each other out. Both are possible. I consider neither likely. No further conclusions in my opinion can reasonably be drawn from the evidence.

[169] There was some evidence about the first defender's current lifestyle. He had the financial ability to travel to the UK from America albeit that journey related to the present case. There was hearsay evidence from K B that he had also visited Taiwan. Despite the criticisms expressed by senior counsel for the pursuer I consider that the evidence fell short of establishing that the first defender had significant hidden capital assets or maintained a luxury lifestyle which was unexplained.

Conclusion 6 and the setting aside claim under section 18 of the 1985 Act

The Factual History

[170] The chapter of evidence relating to the transfer of property by the first defender to the second defenders is very important. Senior counsel submitted that this property should be treated as part of the matrimonial property at the relevant date. The payments (by way of funds and assets) given by the first defender to the second defenders for the purpose of the acquisition and management of the Trust estate are the subject of the setting aside provisions in Conclusion 6.

[171] I turn now to deal with the evidence relating to the history. Many of the important facts were not in dispute and appear in the timelines to which I have referred.

[172] The main witnesses who gave evidence about the way in which the Trust property was acquired and used were the first defender, K B, P W and Maurice Milligan. The main witness to the way in which the Trust property was administered was Ronald Brown. Evidence about the condition and the valuation of the property was given by Hugo Struthers.

[173] According to K B, she and the first defender first saw the property comprising a main house, cottage, farmhouse and lands in June or July 2005. She described it as an amazing place. According to P W who was involved in the purchase of said property, the first defender said he was buying it because he had been brought up near the estate and "had a soft spot for it". She understood that he was buying it for himself. But that plan changed. The first defender thought it would be an ideal place to bring up children. He explained to K B that he had consulted with various advisers so that the property would be there always for the children. K B had no involvement in the setting up of the Trust.

[174] After he received the £10 million from the flotation, the first defender transferred over £3.8 million to the second defenders in order to finance the purchase of the W Estate. The purchase price was £3.2 million which was above valuation. His explanation was that there was always the risk that we would get crushed by the "big guys" but we had "a big gorilla behind us in Microsoft". He said "I had to make sure that the kids and K B were secure". He and K B had been looking for a house before he received the £10 million. They found "a magical place".

[175] The first defender obtained professional advice from the corporate department of Biggart Baillie LLP. His initial contact was David Allen but thereafter he relied on Ronald Brown to set up the Trust. The first defender said that he did not understand the complicated arrangements. I accept the first defender did not understand these arrangements or appreciate the full legal implications of them. He did understand that there was a Trust company. He knew E W was involved as a director. The first defender had relied on E W for years and trusted her. He also understood that as a result of the transfer to the Trust, the property would not be owned by him but held for the beneficiaries and that he was not involved as a director or beneficiary. There had been discussion with Ronald Brown about a letter of wishes from him. That would have involved a three-way split of the property when the children were much older (6/259 page 6). This was never completed.

[176] The deed of Trust (9/1 of process) by the first defender set up the second defenders to hold property in trust for the children and grandchildren of the first defender. There is no provision in the Trust deed for the pursuer as his wife. There is discretion to pay out to any one of the children. Payment to a legal guardian is sufficient as a discharge. No child has any right to any Trust property or any part of it. Clause 8 cuts out any rights to a spouse on intestacy. I am satisfied that the second defenders' property has from time to time been used to provide a home for some of the beneficiaries. It has never provided alimentary income for them. The Trust purposes are both accumulation and alimentary. There was no significant dispute in this case that the second defenders, as presently established and administered, would not be capable of providing any significant alimentary support to the beneficiaries. That might be done however if the property was sold and some other arrangements were made to obtain income generation.

[177] K B gave graphic evidence about the move to the property in December 2005. She described major problems including mice infestation. Major renovation works were planned and instructed by K B and the first defender. Ronald Brown and E W were not involved in any detailed way in these decisions except to give some general approval in principle. Major and expensive works were done during the first phase of works up to 2007. K B and the children lived in the main house on the property of the second defenders. The general estate management was carried out by an agent appointed with the approval of Ronald Brown. The agent discussed matters with K B and the first defender. The first defender supplied funds to K B to pay for some of the works and also paid for other works through his own account. K B said that the first defender lived mainly abroad but lived in family with her and the children at the second defenders' property when he returned. The brother of K B moved into the cottage on the estate. Some renovation work to the cottage was paid for by the second defenders. The brother paid rent.

[178] The first defender explained that he paid for "decorative stuff" rather than capital costs such as the roof. He paid for all the things he thought were necessary for the children including a very expensive security and computer system. He regarded this as part of his duty of looking after the children.

[179] There was a major second phase of work planned. Some of the renovation appeared to be redoing works already done. K B said that by January to February 2008, she was aware of the plans in which the first defender was involved but she was "out of the loop". This was because the first defender's attitude to K B changed in about 2007. Without any reference to K B, her brother was given notice to quit the cottage. In September 2007, the first defender told K B that he did not want to be with her. No explanation was given. Thereafter he visited from time to time to see the children. K B managed to remain on friendly terms with him. With the consent of the first defender, K B and the children remained in the main house in the second defenders' property until August 2008.

[180] In August 2008, the first defender came for a very short visit to the second defenders' property to see their children. He informed K B that the packers were coming in two weeks and that she would have to leave. She had alternative accommodation. On a visit some eight weeks later, K B said the house had turned into a building site. K B did not discover the first defender's relationship with E W until she was told by one of her children who was on holiday with the first defender abroad. The child said that E W had a baby in her tummy. K B said that the first defender's attitude was that he was not going to discuss any of this with K B.

[181] I am satisfied that E W took over the responsibility for the second phase of works. She and her children then appeared to use the Trust property as they wished. The first defender visited her and her family from time to time. By October 2010, the house was in very beautiful condition and completely renovated.

[182] After the departure of the brother of K B, the first defender arranged for his parents to move into the cottage vacated. This was substantially renovated. According to the first defender the £30,000 cost was met by cash from his parents. Without corroboration, I am not prepared to accept that evidence. The first defender did accept that he had also given money to his parents and that other payments were made by him in respect of the cottage.

[183] According to the first defender, he and E W "fell out" in March 2010. He was unable to explain the reason that P W, appeared to be unaware of this when she gave evidence except to say he did not speak to P W. He had planned to marry E W "but it all fell apart". During his evidence, the first defender said he had last seen E W in September 2010. She is settled in Redmond in the USA with the children. The first defender said that he had lied to E W about a few things including giving money to K B and the pursuer's visit to him in Dubai in March 2008. All the pressure became too much.

[184] It is plain from the evidence relating to payments for works and supported by K B and Maurice Milligan that there were major works done to the main house and to a lesser extent to the estate. I accept that, in the absence of evidence from E W and an investigation of the up-to-date accounts, I do not have a full picture of the liabilities of the second defenders. On a rough estimate, it appears that the first defender has paid sums totalling about £4.5 million and probably more in respect of the establishment of the Trust and maintenance of the property of the second defenders. The sums have been paid directly to the second defenders or advisers or by paying accounts for works carried out to the property of the second defenders.

[185] I am not in any doubt that the first defender, with the tacit acceptance of personnel involved in the administration of the Trust, had until 2010 a major influence on the way in which the main house and to some extent the other property of the second defenders has been developed and used. I accept that he has spent a relatively limited time himself at the property of the second defenders. When at the property, I accept the evidence to the effect that he was actively involved in enjoying the property with his children and K B or E W.

[186] Ronald Brown said that he was unaware that the first defender had a spouse as he had not been told this by the first defender. The first defender said he had informed other personnel in Biggart Baillie LLP about this. When asked about the administration of the second defenders, Ronald Brown conceded that in effect major decisions involved joint consultation with him and E W. He became aware that a relationship had formed between E W and the first defender and that their first child was to be born in September 2008. Ronald Brown did not consider this to be a problem in relation to any conflict of interest which E W might have in relation to the children of K B. Under reference to 6/255 he accepted that E W had paid £43,025 to the Trust. It was not clear from where this money had originated. The payment appears to have been made against a background that there were tax implications if the first defender paid in sums in excess of £250,000. That tax change came in to effect in 2006.

[187] There was some discussion between Ronald Brown and the first defender about a loan from a third party to pay for renovation works to the property of the second defenders costing approximately £1 million. The best Ronald Brown could say about this was that it was some foreign person that the first defender knew but in the event the £1 million loan was not made by this "foreign person".

[188] I would describe Ronald Brown's evidence at best as vague about the details. That vagueness raised my concerns about what was going on in this Trust both in relation to its administration and in relation to potential tax problems.

[189] According to Ronald Brown, under reference to 6/260/20, the policy of the Trust was created by the first defender albeit he and E W were responsible for the administration. Ronald Brown did not consider that he should get involved in the detail of the £1 million works carried out to the main house. He regarded that as a matter for the first defender as the property of the second defenders was used as a family home. He accepted that the first defender appeared to be giving instructions in various correspondence with contractors. He took the view that the first defender was a living Trustor who had created the Trust and that one might therefor expect him to have a hands-on approach in these circumstances. He understood that when he was not abroad, the first defender lived at the second defenders' property.

[190] Ronald Brown was aware that there was a change in use when the relationship with K B and the first defender came to an end. He considered that it was not for him to dictate how the first defender and the others lived their lives. Ronald Brown said he was the director of a Trust company which held property for child beneficiaries. The investment in the Trust estate was done because the first defender wanted that and it seemed to be a suitable investment for the beneficiaries. No advice was taken about the suitability of that investment. The first defender advised Ronald Brown that it represented good value. Ronald Brown took the view that ultimately it was the first defender who decided which children lived in the property at any particular time. In setting up the second defenders, the view of Ronald Brown was that this was a long term investment for the beneficiaries. It would "wash its face" but in adulthood the beneficiaries would have available a very substantial asset. It was not envisaged that school fees, day-to-day maintenance and tertiary education were to be paid for by the second defenders when the Trust was established.

[191] A change in the use of the Trust property to commercial letting occurred in about 2010. The main house was advertised as available for holiday lets. It was let from time to time to produce income. This occurred after E W and the children moved to Seattle.

[192] Ronald Brown showed an attitude to the administration of the second defenders which in the light of the problems raised at the proof may give rise to concern. He had every confidence in E W who was a Scottish solicitor who he said might be expected to know about acting properly as a Trustee and avoiding conflicts of interest. He accepted that Dalglen Directors had resigned. Dalglen Directors took responsibility for the conduct of the litigation as the solicitors instructed were Biggart Baillie LLP. They kept E W informed of the advice. In the early stages of the litigation, instructions were given by Dalglen Directors Ltd after consultation with E W. There was a short period when E W ceased to be involved and two business colleagues of the first defender became involved in her place. That occurred in March 2009 (6/147 of process). E W was reappointed later in 2009. According to Ronald Brown, eventually Dalglen Directors Ltd ceased to be a director of the second defenders because they were asked to resign by E W. There were concerns raised about the problems identified in 6/328/2 paragraph 3 and the absence of clear information and documentation on which Dalglen Directors Ltd could satisfy itself that it was acting appropriately. Ronald Brown stated that Dalglen Directors having resigned as director intended to transfer the shareholding to the obvious person namely the first defender. He said such an arrangement was not unusual to involve a Trustee directly. This precipitated a threat of interim interdict on behalf of the second defenders but the issue was resolved of consent. I understood that no transfer to the first defender has been made.

[193] In cross examination Ronald Brown accepted that both the first defender and the second defenders were clients. He considered that his responsibilities were to the second defenders. The first defender wanted to put more money into the second defenders. No separate advice was given to the first defender. Ronald Brown continued to express his confidence in the actions of E W and the first defender. He was satisfied that there was no tainting of the Trust which was a bona fide Trust for the benefit of the first defender's children. No conflicts existed in his opinion as he and E W always had to act in accordance with the best interests of the beneficiaries.

[194] His explanation of how the second defenders intended to meet the million pound expenditure for the second stage renovation may be added to the confused picture. He said that he did not know in advance that the first defender was to be responsible for the expenditure. He sent invoices to E W for payment. Money was paid. He and E W then obtained an undertaking from the first defender to pay and bills were paid. There had been some discussion with the first defender about a foreign company advancing a loan but that did not happen.

[195] In relation to the potential payment to the second defenders from an undisclosed foreign source, Ronald Brown appeared uncomfortable in his evidence. He also appeared uncomfortable in relation to his evidence about a potential conflict between his role advising the first defender and his role in relation to the second defenders. With the consent of the parties, he was permitted by the court to interrupt his evidence to seek advice. Thereafter he continued his evidence. He accepted there might be a potential conflict in relation to the tax position of the first defender as donor and the second defenders as beneficiary. He seemed for the first time to concede that there might be a potential conflict in E W's position after her first child became a beneficiary in terms of the Trust deed. He did not accept that any actual conflicts of interest arose. He had no recollection of an application by K B for school fees for her children. That was apparently dealt with by E W alone. He took the view that the substantial expenditure which had been made to the property of the second defenders was not yet reflected in the value of the property of the second defenders. He said that if any loans had been made to the second defenders he would know about them.

[196] I consider that there may be serious issues about the management and administration of the second defenders but these are not the focus of this proof. They were canvassed in partial and general terms. I am not in a position to resolve these matters in this proof but I do recognise that there is serious potential for dispute and possibly litigation by the beneficiaries about a range of matters. The full details and documentation relating to the companies who hold the shares in the second defenders and their relationship with the Trust were not explored in evidence. I am not in a position to comment on the implications of the most recent arrangements in respect of the second defenders as set out in 102 of process. I doubt whether these arrangements alone will resolve the internal problems. There are also other problems which may include the attitude of HM Revenue and Customs officials to sums of money provided by the first defender to the second defenders.

[197] I had regard to the contents of the joint minute, 98 of process. I note that there is considerable disparity between the estimated costs of maintaining the children of K B and the children of E W. Whether that is fair or not, I am not in a position to comment. But it is suggestive of an imbalance and future problems.

[198] Against that factual background, I now turn to the statutory provision.

Interpretation of Section 18 of the 1985 Act

[199] The 1985 Act states:

"Orders relating to avoidance transactions

18. - (1) Where a claim has been made (whether before or after the commencement of this Act), being -

(a) an action for aliment

(b) a claim for an order for financial provision, or

(c) an application for variation or recall of a decree in such an action or of an order for financial provision,

the person making the claim may, not later than one year from the date of the disposal of the claim, apply to the court for an order -

(i) setting aside or varying any transfer of, or transaction involving, property effected by the other person not more than five years before the date of the making of the claim; or

(ii) interdicting the other person from effecting any such transfer or transaction

(2) Subjection to subsection (3) below, on an application under subsection (1) above for an order the court may, if it is satisfied that the transfer or transaction had the effect of, or is likely to have the effect of, defeating in whole or in part any claim referred to in subsection (1) above, make the order applied for or such other order as it thinks fit. (I have added the underlining).

(3) An order under subsection (2) above shall not prejudice any rights of a third party in or to the property where that third party -

(a) has in good faith acquired the property or any of it or any rights in relation to it for value

(b) derives title to such property or rights from any person who has done so.

(4) Where the court makes an order under subsection (2) above, it may include in the order such terms and conditions as it thinks fit and may make any ancillary order which it considers expedient to ensure that the order is effective."

[200] The first disputed issue is the contention by senior counsel for the pursuer that if section 18 is operated by the court that the sums refunded to the first defender should be counted in as part of the matrimonial property. That approach forms the basis of the calculations made on behalf of the pursuer.

[201] In my opinion, the words "the matrimonial property" have been given a specific and detailed statutory definition in section 10 of the 1985 Act. The property of the second defenders does not fall within that definition. The complicated provisions of the 1985 Act do not provide that property released by the operation of section 18 should expressly be treated as matrimonial property. I do not consider that such a meaning can be implied given the detailed and specific definition set out in the statutory provisions. I consider that the approach by senior counsel in relation to this is not well founded. I am of the opinion that section 18 provides a remedy in certain defined circumstances and should be so construed.

[202] The second disputed issue relates to the meaning of section 18. Counsel for the second defenders in his oral submissions, based on 106 of process, sought to persuade me that on a proper interpretation of section 18, the transactions struck at by section 18 are those which have as their purpose the avoidance of liability to satisfy a spouse's financial claims.

[203] I was referred to the head note to section 18 which refers to "Orders relating to avoidance transactions". I was also referred to the discussion in the Scottish Law Commission report (number 67) paragraphs 3.147 to 3.151.

[204] I am not persuaded by the submissions made. It is plain from paragraph 3.150 of the report that one of the difficulties which was thought to exist in relation to the Divorce (Scotland) Act 1976 section 6, was that there could be difficulty in proving that the property has been dealt with "wholly or partly for the purposes of defeating in whole or in part" a claim. It is plain from the wording of section 6 of the 1976 Act that in order to bring a transaction within section 6, it was essential to prove such an intention. I consider that the main purposes of the change in the statutory provision in section 18 of the 1985 Act was to overcome this perceived difficulty and to focus attention on the effect of the transfer or transaction.

[205] The view was expressed in paragraph 3.150 of the Scottish Law Commission report that a power should be given to the court but "the court would not be obliged to exercise it and presumably would not exercise it if the transaction or transfer appeared to be a genuine one with no avoiding intention. The rights of third parties would be protected." That is very interesting but in my opinion if one considers the plain words of section 18(2) and in particular the words which I have underlined, these words do not include any such implication, express or implied. Indeed one merely has to contrast the wording in section 6 of the 1976 Act with the wording in section 18 of the 1985 Act to conclude that the construction put forward by counsel for the second defenders is not well founded. I am of the opinion that different words are used in these sections because the sections are intended to be different in meaning. In my opinion the words of section 18 are not limited by reference to the intention of the spouse or to avoidance transactions. The words and meaning are perfectly plain and are directed to the effect. I also do not consider that the words are constrained by the head note which of necessity is a mere shorthand reference to the provisions in section 18 of the 1985 Act.

[206] The one case identified by parties in relation to section 18 was cited to me. I have no difficulty in accepting the submission by counsel for the second defenders that section 18, as illustrated in that case, Tahir v Tahir (Number 2) 1995 SLT 451, is capable of covering the type of situation where the court finds that there is an intention to defeat a claim. I am satisfied however that the statutory provisions are not limited to that situation. It is plain that there are some limitations of the power of the court as set out in section 18(3) of the 1985 Act but they are not relevant in the circumstances which I am considering.

[207] In considering the interpretation of section 18, I also require to give consideration to what is meant in the statutory wording by the words "had the effect of...defeating in whole or in part any claim..." What is meant in this context by "...had the effect of defeating"? I consider that the words used are general in meaning. There is no attempt to focus or limit consideration to the causa causans or to give a limited or specialised meaning. I consider that if the court is satisfied, looking at the matter broadly taking into account all the circumstances, that the transfer or transaction had the effect of...defeating in whole or in part any claim...the court is entitled to conclude that the terms of section 18 are satisfied. I do not read the words "had the effect" as limiting the application of the section to the date at which the transaction or transfer occurred. Obviously in some cases that might be the date of the effect but in other cases, depending on the facts and circumstances, the effect may not occur until a later date.

[208] It should also be noted that in terms of section 18(1)(i) the order for setting aside, albeit it can be made not later than one year from the date of the disposal of the claim, is limited to the period of "not more than five years before the date of the making of the claim". The underlining is mine. In other words the statutory provisions, in my opinion, give a setting aside remedy on the basis that up to a year after the disposal of the claim there can be an application for setting aside within the five year period before the date of the making of the claim. In my opinion, in relation to transfer or transactions after the date of making of the claim, it appears to be envisaged that the protection is by way of interdict in terms of section 18(1)(ii). That may have implications in relation to the circumstances of the present case in which significant transactions by way of loan and gift were made by the first defender at a date after the pursuer's claim for an order for financial provision. I was not addressed in relation to what date is "the date of the making of the claim£ for the purposes of the 1985 Act. I merely draw attention to the provisions. There is no dispute in this case that significant transactions in relation to the Trust were made within the five year period before the date of the making of the claim and are within the statutory time scale. Thus there is a live issue in this case in relation to the transfer or transactions to the second defenders which are the subject of conclusion 6.

[209] Counsel for both the second and third defenders submitted that on the facts of this case, the court could not be satisfied that the transactions had the effect required by section 18. Reference was made to a number of factors set out in the submissions. These factors included the substantial wealth of the first defender at the end of 2005. It was submitted that any transaction in favour of the second defenders when the Trust was established represented only 2% of the first defender's wealth at the date of the transaction.

[210] I am of the opinion that it is appropriate to look at all the circumstances and to distinguish the type of assets which made up the wealth of the first defender. The first defender received £10 million which was available to him as cash in various accounts. He very quickly disposed of more than £6 million to business colleagues and by way of various payments to the second defenders in relation to the setting up and funding the Trust. He was aware that his shares were more precarious than cash. His position at the end of the proof was that he had given away or spent most of the cash he had received as a result of the flotation and his earnings from I Co plc.

[211] This case is unusual in many respects. One of the features which I find most unusual is that since 2005 the first defender both before and after the relevant date, has given most of his cash assets in one form or another to other people, including the pursuer. The most significant asset which the pursuer received was the house in which she lives and this house has been adapted for her special needs. The first defender also put substantial cash funds back into I Co plc which was the source of his wealth. He did that at a time when I Co plc had been through a difficult time and borrowing was difficult because of the crisis in the banking industry.

[212] I have no difficulty in concluding that the transactions which the first defender made in relation to the second defenders prior to the relevant date were not done with the intent to defeat the pursuer's claim. There was no divorce in contemplation. The first defender was concerned to protect his children but he still had very substantial assets both in shares and cash available to him. He continued to support the pursuer.

[213] I consider from the history of the first defender's financial dealings that there are two main causes for his current lack of resources. The causes are to some extent interrelated. The first cause is that he gave away or spent most of his cash assets. The second is that the share value of I Co plc crashed along with the company and he lost over £2 million which he had loaned to the company. In my opinion, if a spouse who ends up with very limited resources has chosen to dispose of millions of pounds of money gratuitously for the benefit of children concealed from his spouse, in the uncertain hope that his business interests will always flourish, it is not difficult to conclude that the transfer within the five year period of in excess of £3 million to the second defenders in 2005 had in these circumstances the effect of defeating in part the pursuer's claim. The defender was well aware that the pursuer was dependent on his financial support and had financial claims as his wife. He wisely chose to attempt to protect his children as he recognised the financial risks inherent in his business but he seemed oblivious and uncaring about the risks to which he exposed the pursuer whom he knew had a very serious illness.

[214] A further submission was made on behalf of the second and third defenders to the effect that the pursuer had failed to prove that in the absence of the transfer of funds or property to the Trust, the first defender would not in any event have divested himself of the funds. I reject that submission. It is plain in this case that the first defender wanted the Trust property for himself and his family regardless of the Trust transaction. The Trust was an afterthought. He used the property, improved it and enjoyed it over the years even with the Trust provisions. There was no evidence that if there had been no Trust he would have tired of the property, sold it and disposed of the cash. After the end of 2008, I have no doubt that, had he owned the Trust property, he would have been prevented by interim interdict from disposing of the asset even if he had wanted to do that to protect I Co plc. In any event I consider that this submission is based on speculation and was not explored in the evidence.

[215] I am satisfied that the statutory test in section 18 is met on the facts of this case. I accept however that does not necessarily mean that I should grant any order. I consider that it will be a rare case in which the court will intervene if the court has concluded that the transaction which is the subject of section 18 was not intended to defeat a claim. I consider that the circumstances in this case are an example of such a rare case.

[216] The section does not specify any particular criteria which the court should take into account if section 18 is engaged. I consider that in a case such as this where there was no intention to defeat a claim, the court should bear that in mind as part of the many circumstances to take into account. The court should endeavour to achieve some fair balance by taking into account the interests and needs of the other persons directly affected, in this case the children. I have endeavoured to do that and have tried to reach a just solution which is fair to the pursuer, the first defender and the child beneficiaries of the Trust. In my decision making, I draw comfort from the words of Lord President Hope in Little v Little that the 1985 Act "despite the detail, ...is essentially one of discretion, aimed at achieving a fair and practicable result in accordance with common sense". That is my aim.

[217] I consider that it was a prudent decision on the part of the first defender to try to protect the future welfare of his children and grandchildren. I have considerable sympathy for the difficulties which K B described in relation to the education of her children. I accept her evidence in relation to the needs of her children and the educational benefits which they presently enjoy. I accept that she has had difficulty obtaining work as a teacher but I consider that it is likely that she will obtain such work in the future. She accepted that she had the security of a suitable house provided by the first defender outwith the five year period. Information was available in the joint minute, 98 of process, about capitalised costs in respect of the children of both K B and E W. There was limited information available about the circumstances of E W. She has a professional qualification, accommodation and future employment prospects. Both K B and E W are of course also responsible, with the first defender, for the support of their respective children who are beneficiaries of the Trust.

[218] I have found that the second defenders to date have not provided for the alimentary and educational needs of any of the children. That may or may not be resolved. I am of the opinion that there is great potential for dispute and further litigation and expense. I am satisfied that the Trust property despite dispute about current liabilities, is still very valuable. The value of the Trust is such that it is likely to be able to meet in part the capital sum which I consider to be due to the pursuer without exhausting the Trust property. According to Hugo Struthers the current valuation is in excess of £3 million. Ronald Brown said the value of the expensive renovations has not yet been reflected in the valuation. There is also income of some £80,000-£100,000 per annum from a farm subsidy attaching to the property. If for some reason the current value of the Trust property has been wrongly reduced or dissipated, the beneficiaries may have remedies available to them.

[219] I take into account that the first defender has alimentary obligations to the five children. He will receive considerable advantage if he is relieved of his alimentary obligations in whole or in part. That would be the practical result if any substantial capital sum is left from the Trust property and is used to generate income or is distributed for the benefit of some or all of the children.

[220] I have given careful consideration to the submissions of the second and third defenders but I am not persuaded that in all the circumstances of this case that I should refuse to exercise my power and discretion in relation to section 18. In my opinion the pursuer clearly has legitimate and substantial financial claims against the first defender which as a result of the actings and decisions of the first defender in relation to the Trust property he has become unable to satisfy from his current or future resources.

What Sum Should be Awarded to the Pursuer as a Capital Sum?

[221] I have carried out the exercise of valuing the matrimonial property at the relevant date. But I do not consider that it is fair or just to ignore the effect of the collapse of I Co plc and award a capital sum reflecting the value of the matrimonial property at the relevant date before the collapse of I Co plc. If I did that and relied on section 18 it would denude the Trust as the capital sum would much exceed the value of the Trust property. Everyone has suffered as a result of the collapse of I Co plc. At present the children referred to in this action are protected. I consider that it would be unfair to give all the protection instead to the pursuer and none to the children. So I have carefully considered whether there is a fair solution and I have concluded that there is. In essence that solution involves an acceptance of the reality of the failure of the company which produced the wealth. This is my solution in the exercise of my discretion and doing my best to follow the guidance of Lord President Hope.

[222] I refer to my discussion about the I Co plc shares in paragraphs 124-125. If one strips out from the valuation of the matrimonial property at the relevant date, the valuation of I Co plc shares, the total value of the matrimonial property is £5,415,888. That sum is made up of the total figures set out in paragraph 114. (That is matrimonial property owned by the pursuer £608,161 plus the matrimonial property owned by the first defender £4,461,727 plus the sum in the Emirates account £346,000 which I concluded in paragraph 130 should be regarded as matrimonial property.) At this stage of the exercise, I also consider it fair and just and reasonable to deduct the sum of £2,220,729 which the first defender loaned to I Co plc. Said sum was lost in the disastrous collapse of the company. I consider that sum should be deducted in this case where resources are a problem because I am satisfied that the first defender was genuinely trying to maintain the company at a time of difficulty and this company was the sole source of all the wealth. It was in the interests of all the parties that steps should be taken to ensure the financial stability of I Co plc and to avoid the collapse which was a risk albeit not expected. If I Co plc had been saved by the loan from the first defender and or other action by the first defender, everyone would have benefitted and problems of resources would probably not have arisen. The risk was taken by the first defender alone but I do not consider that he alone should bear the consequences of that failure. On that calculation, the valuation of the matrimonial property which I consider should form the basis of a division in which section 18 is used to obviate problems with resources is £3,195,159. (£5,415,888-£2,220,729).

[223] I take into account that all the wealth which formed the basis of the matrimonial property was generated by the efforts of the first defender which included substantial risk taking with his own career and money. I do not therefor consider that he should be too severely criticised or judged for his decision making which in effect left assets in excess of £3 million as matrimonial property. Both the creation of the enormous wealth and the loss of that wealth were the result of the decision making of the first defender. As it happens the pursuer has been sensible enough to retain such assets as she received from the first defender during his period of wealth. The first defender has not.

[224] On the basis of the approach which I have explained, a figure of £3,195,159 represents in my opinion a fair assessment of the assets to be divided between the pursuer and the first defender.

[225] I do accept that the pursuer, because of her illness and because of the unusual history, made no effective contribution to the creation of I Co plc. It was however the first defender's choice to allow the marriage to continue and to support her financially and emotionally. It was his decision to keep her in ignorance of the true circumstances. In the circumstances in which the pursuer was placed, I do not think that she could have given to the marriage and to the support of the first defender any more than she did. She gave him her undivided loyalty, support, trust and affection over many years. She cared for him when he was ill. She carried his child and the decision about termination was a joint decision. I do not consider that there are any reasons to justify an unequal division to the pursuer.

[226] I consider that a capital sum which would divide the matrimonial property as I have assessed it should be granted to give the pursuer in effect one half of £3,195,159, that is £1,597,579. The pursuer has property valued at £608,161, which should be taken into account. The pursuer has received some payments after the relevant date but I do not consider that these should be taken into account. The first defender has also had some benefit from the matrimonial property for his support. There is a rough equalisation.

[227] I have considered a pension transfer of some £700,000 representing the first defender's pension as a method of meeting in part the pursuer's entitlement to a capital sum. That would in my opinion lead to an unjust result. This is a family action not an action for damages. It would leave the first defender with virtually no assets and no income and create many difficulties for him. It would minimise his opportunities to re-establish his business life. If he succeeds in that his children may be able to obtain aliment from him and this may help offset disadvantage caused by my use of the powers in section 18. Some equalisation of pensions to the extent of £200,000 is in my opinion a fair resolution of the dilemma. That in my opinion is the maximum award which should be made taking into account the first defender's actual current resources and his uncertain future resources with HM Revenue and Customs still pursuing him. This direct contribution by the first defender will minimise the effect on the Trust. The first defender himself accepted this. I do not consider that his health or other reasons now make this unfair. A pension sharing order to that effect will be granted. The result of my decision is that the pension income of the pursuer and first defender will be equalised to some extent. I take account of that £200,000 in assessing what capital sum to award.

[228] The pursuer will retain the capital assets which she has and should in addition receive a substantial capital sum of £789,418 which can only be awarded by using section 18 in relation to the assets of the second defenders. That will leave the pursuer with the equivalent of capital of £1,597,579. (£608,161 plus £200,000 pension transfer plus a capital sum of £789,418). In consequence, the capital assets of the pursuer will be far greater than the capital of the first defender. I consider that as the first defender chose to give away large sums of his capital after the relevant date, he made his choice and he should be left to live with that.

[229] I consider that my decision will still leave substantial assets for the benefit of the beneficiaries of the Trust, provided they are not consumed in further legal dispute and what might be regarded as lavish administration and expense without obvious benefit to the second defenders. If the Trust assets have been seriously adversely affected by those responsible for the second defenders, the beneficiaries may have some legal remedies. I accept that as a result of my decision, it may not be possible to meet all the costs envisaged in joint minute 98 of process. I regard that as unfortunate but not a good reason to change my decision.

[230] In these circumstances therefore I will grant an order in terms of section 18 setting aside and reducing the transaction to the extent that the first defender provided £789,418 to the second defenders for the purposes of the acquisition of the Trust estate and ordaining the second defenders to repay to the first defender said sum. The mere fact that there remains a live dispute with HM Revenue and Customs about the first defender's tax does not persuade me that I should refuse the order.

[231] I anticipate that it may take some time to implement the financial orders in full. I have considered senior counsel's motion for aliment of £800 per month for a limited period of 10 months but I refuse that. The order for a capital sum can be made in such a way as to provide some capital by way of instalment in early course to the pursuer and that is what I shall do. Taking into account the capital provision and the lack of means of the first defender, no order of periodical allowance will be made.

[232] As parties may wish to address me in relation to the form of the orders, ancillary orders, and any other matter relating to the orders, the case will be put out By Order. I reserve all issues in relation to expenses.

The Appendix

Late Productions

[233] The proof which commenced on 21 September 2010 was not completed within the 12 allocated days. A continued diet of proof was fixed to commence on 7 January 2011. On that date (day 12), counsel for the second defenders, supported by senior counsel for the third defender sought to lodge new late productions. I was informed that these productions which included a report dated 5 January 2011 were to be referred to in evidence by a new proposed witness, John O'Hara. John O'Hara is an accountant who since the end of the last diet of proof had examined certain productions, mainly relating to the financial affairs of the second defenders. In addition he had access to a variety of documents (not productions) from which he had produced inter alia new accounts to March 2010 which differed from the draft accounts in the productions. He had also produced an update of the Trust accounts to the date of 23 December 2010. In the updated accounts which he had produced there was reference to a loan in excess of £1 million by E W to the second defenders. On day 12 none of the documents on which John O'Hara had relied (except of course productions already in process) were tendered as new productions. I was informed that counsel for the second and third defenders wished the report to be lodged to enable the court to have a better understanding of the liabilities of the second defenders. The second defenders wished to lead John O'Hara as a witness to speak to his report and other documents not lodged as productions. It was submitted that without that information, the court would not be able to properly exercise discretion under Section 18 of the 1985 Act, should the court deem it competent and appropriate to do so.

[234] Counsel for the first defender submitted that she was neutral and neither supported nor opposed the motion.

[235] The motion was strongly opposed by senior counsel for the pursuer. She submitted that she was in no position to deal with this late information about which she had been given notice only two days before. She submitted that it was impossible to deal with this without access to any of the supporting documents which counsel for the second defender did not seek to lodge. She submitted that the new report from John O'Hara appeared to deal with accounts which were different from the productions. No proper notice of any of this had been given. She also submitted that there was no record for a case including liabilities such as a substantial loan. Senior counsel submitted that she was astonished by the suggestion at such a late stage in the proof that a loan had been made by E W to the second defenders in excess of £1 million. She explained that strenuous attempts using legal procedures had been made on behalf of the pursuer to recover relevant documents. It was unacceptable that late documents of this nature should be produced at a time when the evidence was almost completed. Detailed evidence from witnesses about the property owned by the second defenders had been given and this new information came far too late. Senior counsel described the attempts to lodge these documents so late as an "ambush" and under reference to Fulton v Fulton, submitted that the motion by counsel for the second defenders to lodge late productions should be refused.

[236] Counsel for the second defenders prayed-in-aid his difficulties caused by the late instruction and lack of funds. These are summarised in paragraph 9. He further explained that before the proof recommenced, the Trust had received some income. On receipt of that income it had been possible to instruct an investigation and report by John O'Hara. Counsel submitted that the second defenders had not been in a position to obtain this information before that date. He submitted that there was a foundation on record and referred to the averment by the second defenders in Answer 1 at page 9A-B (97 of process). The averment on record states "...the Trust has executive liabilities". It was explained that was a typing error. The Minute of Amendment stated "...the Trust has extensive liabilities".

[237] As none of the underlying documents had been tendered, I continued the motion until 11 January 2011. On that date, counsel for the second defenders gave further information about the second defenders. He explained that the second defenders had instructed Biggart Baillie LLP to defend the case but these agents had ceased to act shortly before the first diet of proof. They have a lien on the papers. The agents now instructing counsel were instructed a week before the proof. He submitted that it was obvious that there were conspicuous gaps in the paperwork. He submitted that it had not been possible to instruct an expert report until further funds were available. He submitted that the report of John O'Hara and the inventory of documents which he now tendered were self explanatory. The documents tendered provided the receipts and paperwork on which the report was based. He submitted that he had explained the reasons for the lateness and that as the matter was crucial to the valuation of the Trust property, the motion to allow late productions should be granted. In response to my questions, counsel did not accept that it was necessary for him to put these documents or lay a foundation with other witnesses. He conceded that he had not raised, for example, the loan by E W in cross examination with witnesses who might have been expected to know about this such as Ronald Brown and the first defender. It was not clear to me whether counsel for the second defenders knew about this alleged loan during the first diet of proof and I considered that I should not press counsel to answer this.

[238] Senior counsel for the pursuer submitted that she was prejudiced if the motion was granted. She submitted that Fiona Martin, would have to be recalled to deal with the new information. In addition the information had not been put to critical witnesses. She also submitted that she would have adopted a wholly different tactic in dealing with the case had she had some advance knowledge of the information. That might have included an attempt to recover money paid by the first defender to E W.

[239] On behalf of the third defender, counsel emphasised the prejudice to the children whom he described as "innocent bystanders". He said that he "fell of his seat" when he heard that E W was alleged to be a creditor of the second defenders. He submitted that as the documents which underlie the report of John O'Hara are now available, it was important to obtain the true picture of the liabilities of the second defenders. It may disclose that E W has merely paid off other creditors but it would certainly put into context the liabilities of the second defenders. He submitted that there was a live issue about the liabilities of the second defenders in the proof. He accepted that the report and documentation came very late. He submitted however that prejudice to the children of the third defender could not be alleviated if the documents were not allowed to be lodged.

[240] I refused the motion by counsel for the second defenders to lodge late the report of Mr O'Hara and the documents which were alleged to underpin the report as late productions.

[241] There was another motion to allow Mr O'Hara to be led as a witness in the absence of any timeous notice. I considered that I did not have power to prevent Mr O'Hara being led as a witness and so advised. Counsel for the second defenders intimated that standing my decision about productions, he did not wish to lead Mr O'Hara as a witness except in relation to a limited matter about the Trust. That issue was eventually resolved by my allowing, without objection, a late production 102 of process. Mr O'Hara was not led as a witness.

[242] I refused counsel's motion for these reasons. Pleadings are designed to give fair notice of the case. Those responsible for the instruction of the defence by the second defenders in this action may be expected to know or timeously ascertain the liabilities of the second defenders if they wish to lead evidence about this. I do not consider that the bare averment at page 9 A-B gives any fair notice of the information in John O'Hara's report and in particular an alleged loan to the second defenders by E W. The pleas in law of the second defenders, the notice of issues lodged at the commencement of the proof and the lines of cross examination did not in my opinion give any fair advance notice.

[243] The report and the other proposed productions should of course have been lodged in terms of the rules of court, 28 days before the commencement of the proof that is, in August 2010. There are reasons for that which include fair notice. The rules of court also provide that the names of proposed witnesses should be intimated 28 days before the proof. The motion by counsel for the second defenders came during the case led by the first defender and at a time long after the pursuer had led all her witnesses. E W has responsibilities in relation to the second defenders and may be presumed to have personal information about its liabilities. She must always have known whether she has made a loan to the second defenders and the reasons for that. That does not require any expensive investigation. The loan appears to date from a period in early 2010, at a time when Ronald Brown with E W had responsibilities for the second defender. He gave unchallenged evidence that there was no loan to the second defenders by anyone. The loan also appears to date from about a time when E W was in a relationship with the first defender and he might have had some useful evidence to offer about this.

[244] Whatever difficulties experienced by the second defenders about financing and preparation for this proof, I can see no justification for a situation arising in which there is no fair notice about information which must be within the knowledge of E W. I had no difficulty in concluding that the very late tendering of the documents as productions would prejudice the pursuer. I accepted that if senior counsel for the pursuers had any proper notice of the documents and contentions, she might well have dealt with the case in a different way. In any event senior counsel for the pursuer might have wished to question witnesses such as Fiona Martin, Ronald Brown and the first defender about these issues had there been proper notice. It was also apparent from the cross examination by senior counsel for the third defender that there may be issues about the proper administration of the second defenders. In the context of this proof, such issues cannot be resolved. There is no focus of these issues in the pleadings and the limited evidence which related to these issues was general in nature.

[245] Further, I was not satisfied that there was any satisfactory reason advanced on behalf of the second defenders for the late productions in particular the information relating to the alleged loan. I had serious reservations as to whether there was any foundation on record for this line of evidence but I did not decide the matter on a technical pleading point. I took the view that in all the circumstances there was no fair notice of any kind. The productions came far too late in a proof where relevant issues had already been explored by reference to other documents lodged timeously and that senior counsel for the pursuer was not in a position properly to deal with this information. I therefore refused the motion. There was no motion on behalf of any party that the proof should be adjourned.

Objections to Evidence

[246] This may be a convenient point to deal with the objections to evidence which arose in relation to transactions by way of payments and gifts made by the first defender to the second defenders after 5 December 2008. Objections on behalf of the second and third defenders were taken to the line of evidence which senior counsel for the pursuer wished to develop to found a case in relation to payments made to third parties and the second defenders after 5 December 2008 in terms of section 18 and the existing pleadings. I have considered the pleadings of the pursuer in particular the averments at page 30A-B. I consider that there is force in this objection. In my opinion, the claim on behalf of the pursuer on record in relation to section 18 is directed at the disposal or transactions whereby the first defender provided funds and assets to the second defenders for the purpose of the acquisition and management of the Trust estate or other purposes connected with that estate. The pleadings at 30A-B aver a factual basis to underpin the conclusion. There is no fair notice that this is directed at payments made after the relevant date by the first defender to third parties in respect of work instructed for the second defenders or directly to the second defenders. I therefor sustain the objection.