WALES/ENGLAND – Further Imerman judgments determine issues relating to representation of trust beneficiaries and privilege of communications

Settled case provides important guidance for practitioners

Family Law Week has published two more judgments in the financial remedies dispute between Mr and Mrs Imerman which was settled by the parties in February 2013.

Moylan J who heard both applications prior to the settlement of proceedings described the scope of the dispute, referring to the husband’s open offer that the wife should receive £2 million whereas the wife’s proposal was that she receive £120 million. The parties settled upon a payment to Mrs Imerman of £15 million.

The first judgment – Tchenguiz-Imerman v Imerman [2012] EWHC 4277 – concerns an application by adult beneficiaries of certain trusts to be joined as parties to the financial remedies litigation. Applying rules 1.4 and 9.26B of the Family Procedure Rules 2010, Moylan J joined the adult children as parties but made no order as to costs. He also held that the minor children who were beneficiaries would have to be separately represented (although not necessarily that they should be parties) but adjourned consideration of who should represent them to a further date to allow the trustees to express their views on the point.

James Turner QC, Richard Harrison QC, both of 1 King’s Bench Walk, and Dakis Hagen of Serle Court (instructed by Withers LLP) appeared on behalf of the applicant. Charles Howard QC, Harry Oliver, both of 1 King’s Bench Walk, and Jonathan Hilliard of Wilberforce Chambers (instructed by Hughes Fowler Carruthers) appeared on behalf of the respondent. Christopher Pocock QC and Laura Moys, both of 1 King’s Bench Walk, (instructed by Mills & Reeve LLP) appeared on behalf of the adult children.

The second judgment – Imerman v Imerman [2012] EWHC 4047 (Fam) concerns an application by Mrs Imerman for disclosure of various communications which were, she argued, potentially relevant to whether certain trusts were nuptial; and, whether the assets of those trusts were, or were likely to be, available resources to the husband.  Mr Imerman contended that those communications were subject to “common interest privilege”.

Moylan J’s judgment highlights the fact that there is no specific provision in the Family Procedure Rules 2010 which governs the issue of privilege. In considering what direction would be appropriate in respect of the communications in dispute, the learned judge analysed the general rules in the FPR concerning disclosure and went on to review the Civil Procedure Rules as well as a judgment of Mr Justice Kwan in a Hong Kong authority.

In para 17 of the judgment Moylan J ordered that Mr Imerman list the documents by category with the dates on which the communications were made.

In relation to the “nature of the communications” he considered that the claim for privilege should, follow the practice as set out in the Civil Procedure Rules so that insofar as a claim for privilege is made in respect of any document or class of documents, or a part of a document, then it must be stated in writing that there is such a right and the grounds on which that right is claimed.

He went on to stipulate that the grounds on which the right to privilege was claimed had to be sufficient to enable the wife (with the benefit of advice) to determine whether the right could be challenged. He deliberately did not set out what information would be required to satisfy this requirement.

Richard Harrison QC and Dakis Hagen (instructed by Withers LLP) appeared on behalf of the petitioner. Charles Howard QC, Harry Oliver and Jonathan Hilliard (instructed by Hughes Fowler Carruthers) appeared on behalf of the respondent. Christopher Pocock QC and Laura Moys (instructed by ills & Reeve LLP) appeared on behalf of the beneficiaries.

To read the judgments and/or the more detailed case summaries, written by Thomas Dudley, barrister, of 1 Garden Court, please click here in respect of the first judgment and here in respect of the second.


SOURCE: Family Law Week

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