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Edward Bennett
Edward Bennett
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Prest: An open road and a fast car?
Date:28 JAN 2013

Roger Bamber

Partner, Mills & Reeve LLP:

The decision by the Court of Appeal in Petrodel Resources Ltd and Others v Prest and Others [2012] EWCA Civ 1395, [2013] 1 FLR (forthcoming) has excited a great deal of concern amongst family law practitioners.  The judgments of Rimer LJ and Patten LJ, handed down on 26 October 2012, criticised the approach of judges in the Family Division and stated that Nicholas v Nicholas [1984] FLR 285 was no longer good law.  Thorpe LJ, who gave a dissenting Judgment, stated:

'If this Court now concludes that all these (Nicholas) cases were wrongly decided they present an open road and a fast car to the money maker who disapproves of the principles developed by the House of Lords but now govern the exercise of the judicial discretion in big money cases.' (para [63])

Moylan J at first instance found that the London properties held by a Group of companies owned exclusively by the husband were property to which he was 'entitled, either in possession or reversion'.  Moylan J therefore ordered the husband to transfer or cause to be transferred to the wife the twelve London properties together with three other properties, which would then be sold in order to meet her lump sum order of £17.5m (the judge had held the husband's wealth to be valued, by drawing adverse inferences, at £37.5m).

Rimer LJ upheld the Appeal, and referred to the established principles in the House or Lords on Salomon v A Salomon Ltd [1897] AC 22.

'A one-man company does not metamorphose into the one-man simply because the person with a wish to abstract its assets is his wife.' (para [155])

The case has been referred to the Supreme Court where it will be heard on 13 to 15 March 2013.

The full version of this article appears in the February 2013 issue of Family Law.