Tchenguiz-Imerman v Imerman

Vivian and Elizabeth Imerman married in 2001 and had one child. They separated in 2008. Vivian is the principal beneficiary of various offshore discretionary trusts and his wealth consisted of about £27m.

This case is part of a number of others concerning the couple that included contested financial remedy proceedings. A number of documents had been provided to the adult beneficiaries of the trusts (who were Vivian's children from his previous marriage) in connection with an application made to the Royal Court of Jersey by one of the trustees of some of the trusts. The Jersey court had given the beneficiaries permission to disclose these documents to the English court, but only if they were ordered to do so.

Jersey expressed a number of concerns should the order for disclosure be made and invited the English court not to make the order. Moylan J proceeded to give the order for disclosure and had been requested by the parties to give a judgment explaining his rationale.

Moylan J's decision to order disclosure can be seen in the key issues in the financial remedy proceedings, which were:

• whether the trusts were "nuptial settlements" for the purposes of s24 of the Matrimonial Causes Act 1973 (MCA); and

• whether the assets of the trusts were "financial resources available to the husband" within the meaning of s25(2)(a) of the MCA.

In a previous related judgment, Moylan J said the trustees were in the best position to assist the court in exercising its powers under the MCA. The critical question was whether the trustees were likely, immediately or in the foreseeable future, to exercise their powers in favour of, or in some way for the benefit of, Vivian as the principal discretionary beneficiary of the trusts.

However, the trustees avoided participating in the proceedings following applications made to the Royal Court of Jersey and the Eastern Caribbean Supreme Court.

Against this background - and despite the Royal Court of Jersey statement that "if this court were to find that the Family Division began routinely to make orders requiring the disclosure of applications by trustees brought in private, the court would have to consider amending its procedures either to heavily redact any material served […] or to preclude material from being sent out of the jurisdiction" - the documents were ordered to be disclosed.

Moylan J held that, because evidence was not likely to be forthcoming from any other source, ordering the disclosure was likely to be the only way the court could avoid being forced to rely on assumptions and inferences to answer the questions raised in the financial remedy proceedings. While the trustees had provided some information about the trusts, they had refused to provide a considerable part of the information and documents sought.

The justice made it clear that he hoped the decision to order disclosure would not undermine future co-operation between the Family Division in England and the Royal Court in Jersey, and that this co-operation between the courts would assist the interests of justice, not only for spouses and civil partners, but also for trusts and beneficiaries.

See Tchenguiz-Imerman v Imerman (Rev 1) [2013] EWHC 3627

Simon Thomas is head of family at Michelmores

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