November 27, 2007 1 comment
“The client walked away with millions – and I used the case as the basis for a storyline in The Archers.”
The hardest cases – the tricky, nerve-wracking ones that need a bit of brain power – are always the most interesting. I like to play “intellectual chess”! One such case was when a client’s husband told her, out of the blue, that he was leaving. He complained that he was fed up with her spending, and claimed she was “sending him bankrupt'”. He refused to give her his new address, but told her to contact him at his business. She suspected that he was having an affair with her (newly divorced) best friend.
This couple enjoyed a lavish lifestyle. At their swish, £3 million home, they employed a groom, a gardener, and domestic help. The wife kept ponies in a paddock and stables, and the home also had a swimming pool and tennis court. There were no children. The wife, a former model, now passed her time horse riding. The husband liked to play golf and was often seen in the company of her best friend, who was also a keen golfer.
In “Big Money” cases, as with others, assets are identified, valued and divided up. In this instance, because the couple had been as poor as church mice when they had wed and their wealth had been built up during the marriage, a straightforward 50/50 split looked to be in order. When the husband’s solicitors wrote to me, however, it became clear that he loathed his wife.
The husband gave a different version of events. He insisted that his wife’s incessant spending had brought him to the brink of bankruptcy. His company was failing. The house was fully mortgaged, save for about £300,000. There were no savings. Around £50,000 had been run up on credit cards. There were no pension arrangements, as income had been swallowed up by his wife’s profligate expenditure. He had a decreasing income of £100,000 gross per annum. He offered his wife yearly maintenance of £40,000 – although he said that he was unable to guarantee this sum in the long term – plus the sum of £200,000 towards a house. His solicitors warned that if she did not accept his “generous” offer, he would take her to court and make her pay the costs. The parties had very different stories. Which of them was telling the truth?
In England and Wales, a party found guilty of “litigation misconduct” can be ordered to pay the other sides’ legal costs, even though the general rule is that each party pays its own. This meant that if my client litigated fruitlessly when she could have settled before proceedings were issued, she would have to pay her husband’s bill of costs. This would further reduce the pot she had been offered – and presented a real risk she could end up with next to nothing at all.
In the meantime, there was also the problem of how her own legal costs would be met. With no assets of her own, save for a heavily mortgaged property, she could not afford to litigate. Of course, the husband knew this – and was gambling that her straitened circumstances would influence her reaction to his proposal. One solution was to take the husband to court for interim maintenance, to include a hefty monthly payment for costs if bank funding was unavailable. Given the lack of equity in the home, funding was not available; given the husband’s reduced income, neither was interim maintenance. An alternative was what has become known as a ‘Sears Tooth’ agreement. This is a document signed by client and solicitor. When such an agreement is made, the solicitor agrees to fund the case. The client assigns her settlement to the solicitors, and at the end of the case her bill of costs – as agreed or assessed by the court – is debited from it. However, in very difficult cases such as this, with no apparent assets, a Sears Tooth agreement is useless.
The client was adamant. Her husband was lying. He had millions.
What did I do? I believed her and decided to take on the challenge. I took on the case on a ‘Sears Tooth basis,’ even though I knew it could turn out to be worthless. Then I set to work.
With the invaluable help of a German colleague of mine who speaks several languages, we monitored the husband’s undisclosed business activities throughout Europe. A lot of hard work was involved, but the internet provided a useful source of assistance. We uncovered a spider’s web of trade activity.
About a year later, when the case came before the High Court, the husband capitulated after the first day. He settled and paid our costs in full.
How did I finally get him? With an inspiration that struck at 3 ‘o’ clock one morning. I had been awake, worrying about for how much longer we could progress the case. The costs had been mounting, with little to show for our work. Then I remembered a single entry I had noticed on one of the husband’s bank statements. The statements all showed that he was heavily overdrawn. However, the entry itself provided an important clue. I realised that the husband had to have a second business in England.
After we took a calculated risk, subpoenaing the husband’s new girlfriend, it emerged that she had no wish to give evidence in court. The truth came tumbling out. The husband did have two businesses. One was a limited company, with accounts lodged at Companies House. The other was a “shadow” business, owned by his girlfriend but run by him. The business registered with Companies House had been deliberately plunged into decline by the husband, so that he could minimise his wife’s maintenance. All its profits and growth had been diverted to the undisclosed “shadow” business.
The case was a triumph for us. It required nerves of steel; what seems easy in retrospect is never easy at the time. As I mentioned, I enjoy games of intellectual chess. On this occasion, it was a pleasure to chase the husband – into checkmate.
Our client walked away with several millions. And me? Some time afterwards, I was approached by the producers of the BBC Radio 4 soap, The Archers. The producers wanted a convincing matrimonial storyline for duplicitous, fictional businessman Matt Crawford. This case provided a perfect starting-point…