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Luckwell v Limata [2014] EWHC 502 (Fam)

Date:4 MAR 2014
Law Reporter

(Family Division, Holman J, 28 February 2014)

Financial remedies - Pre-marital agreement - Needs

The full judgment is available below.

Before the husband and wife married they signed a pre-marital agreement whereby the husband agreed to make no claim for financial provision from the wife if they separated. The wife's family were wealthy and during the marriage she received a number of gifts from her family which caused further supplemental agreements to be made to the effect that the husband would not claim a share. The marriage was conditional on the parties signing the agreement and the parents were clear that if the supplemental agreements were not signed, the further gifts would not have been made.

At the time of the marriage the wife owned a property in London worth £750,000 and the husband owned £50,000 equity in his own property. The agreement referred to each of their separate property. During the marriage the husband earned between £50,000 and £67,000 while the wife did not work. When the husband and wife divorced the husband applied for financial provision. The main issue for determination was the weight to be accorded to the pre-marital agreement.

The wife now owned outright a property worth £6.74m which was gifted to her by the father and which was the subject of a supplemental agreement ensuring it remained solely the wife's property. The wife's parents currently voluntarily contributed allowances for the benefit of the wife and children totalling £81,000 pa in addition to school fees. She did not work.

The husband had been living in his mother's bed and breakfast accommodation when there was a vacancy. He described living in an ad hoc way, with his possessions in bin bags and having to eat out which he could ill-afford. He was working part time in the hotel at a rate of £6.50 per hour and was undertaking an Open University degree. He had no capital or assets.

During the hearing the wife's father submitted that if the wife were forced to sell the property gifted to her in order to provide funds to the husband he would cease paying her the £50,000 pa allowance. In relation to the allowance provided by the mother, on balance, she would continue to pay in that event as the wife worked for her mother.

There was no doubt that in the circumstances of this case, very great weight should be given to the agreements. They were freely entered into following expert legal advice.  It was clear that in the latter part of the marriage the husband became financially dependent on the wife and now he was in a real predicament of need. As well as needing accommodation for himself he also needed to live somewhere where the three children could also be accommodated. Further the children's welfare would be safeguarded and promoted if some award was made to the father. In these circumstances the wife would need to sell her property.

Notwithstanding the terms of the agreements a capital provision had to be made for the husband. The wife would provide £900,000 as a housing fund for the husband until all three children reached their majority. Upon the youngest child reaching 22 that property would be sold and 45% of the proceeds would revert to the wife. Given that the husband would be in his mid 60's at that point, the remainder would be used to fund an alternative property. The wife was also required to discharge the husband's debts and tax liabilities of £455,000, to provide £40,000 for furniture and a car and £25,000 interim support. This award would still leave the wife with approximately £5.5m.

There had been media interest in the case and although FPR 27.10 provided a starting point for proceedings to be heard in private that did not amount to a presumption. In the interests of greater transparency, the parties' were given notice that the judge was going to hear proceedings in public and no submissions were given opposing that course.  

The fully-referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.


Case No: FD13D01416

Neutral Citation Number: [2014] EWHC 502 (Fam)




Royal Courts of Justice

Strand, London, WC2A 2LL


Date: 28 February 2014





(Sitting throughout in public)








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Charles Howard QC (instructed by Hughes Fowler Carruthers Ltd) for the wife

Lewis Marks QC and Miss Marina Faggionato (instructed by Charles Russell LLP) for the husband


Hearing dates: 10, 11, 12, 13, 14, 18, 19 February 2014

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See also:  [2014] EWHC 536 (Fam)

Mr Justice Holman:

The core issue

[1] This is a claim by a husband for financial provision upon divorce. Shortly before the marriage, the parties entered into a "Pre-marital agreement". The husband agreed that he would not make any claim either during or after the marriage in relation to the wife's separate property or to gifts made or to be made to her by her "wealthy family". That agreement was effectively repeated and reinforced by two "Supplemental agreements" made during the course of the marriage on the occasions of the wife's parents or father making substantial further gifts to her. If the pre-marital agreement had not been made, the marriage would not have taken place. If the supplemental agreements had not been made, the parents/father would not have made the further gifts to the wife. There is no doubt that by making his present claim the husband is acting in breach of what he had earlier agreed to, upon which not only the wife but each of her parents had relied. The core issue in this case is how much weight should now be accorded to those agreements, and whether they should have the effect that the husband's claims should be dismissed. The law on this topic is not difficult to state. But it requires a discretionary decision by the court which is, in my view, and on the facts on this case, an exceptionally difficult one.  

The public hearing

[2] Rule 27.10 of the Family Procedure Rules 2010 provides as follows:

"(1) Proceedings to which these rules apply will be held in private, except -

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise ..."

[3] Subparagraph (a) of that rule does not apply. In my view the effect of rule 27.10(1), read with subparagraph with (b), is as follows. It provides a starting point, or default position, that in the absence of the court directing otherwise, proceedings for a financial remedy after divorce will be held in private, with "duly accredited representatives of news gathering and reporting organisations" normally being permitted to be present pursuant to rule 27.11, but not ordinary members of the public. In my view rule 27.10 does not contain any presumption that financial remedy proceedings should be heard in private - it is no more than a starting point - and the question whether a given case should or should not be is entirely in the discretion of the court.

[4] This case began in court at 2.00 pm. At 10.49 am that day my clerk had sent to all counsels' clerks an email message which said "Mr Holman J may order that all or part of the hearing in this case will be heard in public pursuant to FPR rule 27.10(1)(b) and all counsel are accordingly requested to attend in robes." The effect of that message was to give to all counsel over three hours' notice that I may make such a direction. They clearly had ample opportunity to consider the position and take instructions from their respective clients and instructing solicitors, and to prepare any submissions to the effect that I should or should not give a direction under subparagraph (b). At the outset of the hearing itself I indicated that it was my provisional position that I should give such a direction. I enquired whether either party opposed that course and invited the two leading counsel to make any submissions they wished. Neither of them stated that there was any resistance to a hearing in public or that they wished to make any submissions. Further, at no stage at the outset of, nor during the course of, the hearing has there been any application for a reporting restriction order, subject only to not naming the three children as I have directed. As a result, the entire hearing has indeed taken place in public (as is the handing down of this judgment). Some journalists have been present intermittently during the hearing and a very small number of people have sat at the back of the court room from time to time, whom I believe to have been members of the public. I am aware that the case has received publicity in the national press in print and on line.  

[5] The reasons why I formed that provisional view, and later (without opposition) directed that I would sit in public were, briefly, as follows. The principle that courts normally sit in public underpins the rule of law in a free and democratic society. Historically, courts sitting at first instance to hear financial cases after divorce have almost always sat in private. But there has recently been a strong shift towards greater transparency. That is evidenced by, amongst other sources, FPR rule 27.11 to which I have referred, and by the very recent Practice Guidance on Transparency in the family courts; Publication of Judgments, issued by the President of the Family Division on 16 January 2014 and coming into effect on 3 February 2014 (before the start of the hearing in this case). At paragraph 2 of his Practice Guidance the President states "... there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system ..." Whilst greater publication of judgments will make for greater transparency, publication of the judgment alone suffers from the limitation, or even defect, that the public can only read what the judge chooses to say. It is only if the public are able to see and hear for themselves how the proceedings unfold in the court room, what the oral evidence and arguments actually are, and indeed how the judge comports himself, that there is true transparency, open justice and public accountability. Jeremy Bentham famously said "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial." Mere publication of a judgment does not achieve that. It is curious, to say the least, that precisely the same financial case may be conducted under full public gaze on appeal and yet in private at first instance. It is true that it is normally only at first instance that witnesses have to give oral evidence, but as witnesses have to give evidence publicly in most other situations, including often in intimate detail as to their sexual lives or their financial affairs, it is not obvious why they should be treated with greater protection in a financial remedy case. Those are general considerations. (Protection of commercially sensitive or other confidential information of third parties is another consideration which, however, does not arise in this case.) In the present case there was the particular consideration that the core issue which I have already identified is one of considerable and legitimate current public interest. The Law Commission was, as I understood, about to publish its report on the topic of prenuptial agreements, and in order that the public can have an informed debate on a topic of considerable public interest they need to be able to see how, under the present law, courts resolve these cases on a case specific basis. [I here interpose that the Law Commission did in fact publish their report on 27 February 2014, the day before this judgment is handed down. I had already fully prepared this judgment by then. I have not seen the report, and its contents do not impact in any way whatsoever upon the judgment or my decisions, which are based upon the law as it currently is.] For those reasons, and taking into account the lack of any opposition by either party or their advocates, I directed the public hearing. I am glad that I did so, and there was not one moment during the hearing when I regretted having done so, despite what I am about to say in paragraph 6 below. The outcome of this case is likely to be controversial with some polarised public reactions to it. Everything has been done openly. Nothing has been done secretly.

The course of the proceedings and the lost opportunities to settle

[6] The evidence and argument in this case lasted 6½ long days in the court room. Although there were some flashes of humour it has been an exceptionally bitter hearing which was very painful to behold. The two sides are now very entrenched indeed. Many hurtful things have been said. Caught in the cross fire are three adored, innocent but vulnerable children. Further, the financial remedy proceedings have already cost some £550,000 and rising, and other aspects of the overall litigation have cost a further £107,000 with more to come. It did not have to be like this. The husband now has no assets at all, and net debts, including all he owes in costs, of about £226,000. The wife is property rich. She owns unencumbered the house where she lives which is worth, net of costs of sale, about £6,740,000. But she now has no free assets, and her debts, inclusive of costs, will now also begin to exceed her only other assets apart from her home. Neither spouse has any significant income. But the wife has, as described in the pre-marital agreement, "wealthy" parents. Although certain figures were bandied about as to the wealth of the wife's father in particular, I have no idea at all of the scale of the wealth of either of them and it is none of my business. But between them her parents currently voluntarily fund allowances for the wife and children totalling about £80,000 per annum and all the school fees. There is not the slightest suggestion that they, and in particular her father, cannot afford to do so. By an open letter dated 29 May 2013 the wife's solicitors made an open offer that included raising a mortgage of £850,000 upon her current home, to be guaranteed and funded by her father. With this she offered to purchase a home for the husband until the children had all left school or, if earlier, attained the age of 18. That proposal was rejected, apparently out of hand, when the husband, by his solicitors' open letter of 21 June 2013, asked for almost double that amount and for a significant part of it to be paid outright. Now the primary open position of the wife is not to offer a penny. There is not the slightest suggestion that her father could not easily have afforded the proposal that was made on 29 May 2013 or, indeed, more. I wish to stress with the utmost clarity that neither the wife's father nor her mother are under the slightest legal obligation whatsoever to pay a single penny to, or for, their daughter, nor their grandchildren, nor, still less, their son-in-law. It was, in my view, very unwise and misjudged that the husband's solicitors wrote on 21 June 2013, presumably on their client's instructions, that ".... her parents will, inevitably, be prepared to assist her to meet her obligations to my client" and then asked for considerably more than her father had already, voluntarily and with some generosity, effectively offered to fund. (It was, of course, irrelevant to the husband whether the offered £850,000 was funded by a mortgage paid by the father or a cheque written by the father.) But the tragic fact is that there was scope for a negotiated settlement last summer, assisted by the generosity of the father, and that has now all been lost. At the outset of, and repeatedly during, the hearing I urged settlement and provided a number of breaks and adjournments for the purpose. I do not know what may have been discussed outside the court room. But alas there has been no settlement and the wife's primary open position remains that there is not a penny on the table.

[7] The Family Procedure Rules 2010 provide for a family dispute resolution hearing or FDR. During April 2013 the solicitors agreed that a one hour hearing that had been fixed before a district judge on 1 May 2013 for another purpose should be rescheduled and utilised as that FDR. That seems to me to have been a tragic mistake. In my experience an FDR can be highly effective at promoting settlement and avoiding much costs and bitterness. But a case like this, which was obviously going to be heard at the level of the High Court, requires much longer than one hour and, with no disrespect to the district judge, requires to be listed before a High Court judge. No one can ever know, but I venture to speculate that if there had been an FDR with a full clear day allowed, before one of the High Court judges experienced in financial cases, and with the wife's father present and made welcome, the framework for a settlement which was later suggested in the letter of 29 May 2013 could have been discussed and refined, the figures and terms adjusted, and a settlement could have resulted. This is a case which never needed to come to court and  which was eminently capable of settlement. I stress that apart from the two open letters I have no idea what the respective negotiating positions may have been or may indeed still be. But, objectively, this terrible conflict was as avoidable as it has been destructive.

The facts

[8] This account of the facts (many of which are not disputed) will incorporate also my findings on disputed issues. The wife is Miss Victoria Lee Luckwell. The husband is Mr Francesco Alessandro Limata (Frankie). The wife's parents are Mr Michael Luckwell (Mike) and Mrs Mary Luckwell. For convenience and clarity, and intending no disrespect to any of them, I will call them Victoria, Frankie, Mike and Mary, being the names by which they know each other and are generally known.

[9] The story begins with the wife's parents. Mike is now aged 71. Mary is now aged 67. They have two children. Their son, Adam Luckwell, is now aged nearly 40. He is not married and has no children although he is currently engaged. Victoria was born in July 1976 and is now aged 37. Sadly, the marriage between Mike and Mary had ended in divorce in 1997 when Victoria was about 20. Although they sat next to each other throughout the hearing, I understand that Mike and Mary normally rarely meet or communicate and that when they do have to communicate their relationship is more one of civility than of friendship. I understand that the wealth of Mary, who now has property developments, derived originally from Mike. It is clear that Mike, whom Victoria described as a self-made man, has been, and remains, a successful business man in the film, advertising or media and now other fields. As already stated, I have no idea as to the scale of his wealth, but there has been no attempt to disguise that he is a wealthy man.

[10] In 1997, when Victoria was 20, her parents purchased and gave her, her first home, at Greencroft Gardens, London NW6. In 2002 her mother purchased and gave her another home at Elm Row, London NW3. Greencroft Gardens was later sold and Mary received the net proceeds.

[11] Frankie was born in February 1969 and is now aged 45. He was long ago briefly married and divorced, with no children from that union. In 2004 Frankie was working in the post production and visual effects industry. Coincidentally, he was employed by a company, MPC, which had originally been established by Mike although, as I understand, Mike had sold it before Frankie began working for it. Frankie owned a flat in Eastlake House, London NW8. It had a mortgage and the equity was later stated in the pre-marital agreement to be about £50,000, before costs of sale, although in the event it later only yielded £30,000 net on sale. In summer 2004 Victoria and Frankie began to live together. Over the next few months they actually lived or stayed at Eastlake House, then in the basement flat of Mike's then home, then at a flat owned by Mary in Abercorn Place. Elm Row and Eastlake House were both rented out. In February 2005 Victoria and Frankie became engaged, and in March 2005 Victoria became pregnant. In April 2005 Victoria ceased work and she has never since been in paid employment. The wedding date was advanced due to the pregnancy and set for 23 July 2005.

[12] On 11 July 2005 both parties signed the "Pre-Marital Agreement", which I will call the PMA (the parties having selected the adjective "marital" in preference to "nuptial"). Recital L to the PMA states as follows: "Victoria and Francesco each specifically acknowledges and agrees that the marriage would not be taking place without this Agreement having been negotiated and signed by each of them." Each of Victoria and Frankie expressly agreed during their evidence that that was a true and accurate proposition. In relation to the PMA I am sure that:

i) Victoria herself was insistent upon it;

ii) Mike was also very determined that there should be one;

iii) But for the agreement, the marriage would never have taken place, even although Victoria was already pregnant. They might of course have continued to live together;

iv) When Frankie agreed its terms and signed it, he was a mature man (then aged 36). He was of normal intelligence (although he has few educational qualifications - just two "O" levels). He was mentally stable. He knew exactly what he was signing and he meant what he was agreeing to. He was keen to demonstrate to Victoria and her family that he was marrying her for love and not for her money. At the time he had every intention of abiding by the agreement, although he did not imagine that they would ever actually separate or divorce. During the course of his oral evidence Mike said that even when Frankie signed the PMA (and the later Supplemental Agreements) he was "lying" because he did not intend, even at the time, to be bound by them. That is unfair to Frankie. He did intend at the time to be bound by them. He has more recently broken his promises.

v) Frankie had independent legal advice of the highest calibre. He saw and was advised by the late John Cornwell of the solicitors Dawson Cornwell. Frankie was very complimentary about John Cornwell during his oral evidence. I personally knew (professionally) John Cornwell (as I have also known the wife's solicitor, Ms Frances Hughes) for many years. Each of these parties was advised by family lawyers of the highest repute and great experience.

vi) Full and accurate financial disclosure was made and summarised in the agreement itself.

The terms and content of the PMA

[13] The whole agreement is of course available and I can only summarise or highlight the more important terms. It recited at the outset (recital A) that Victoria was pregnant and their child was expected to be born, as she later was, in December 2005. The agreement accordingly expressly contemplated that there would be at least one child. The agreement clearly referred to, and identified, "Victoria's separate property" and "Francesco's separate property" and recorded, correctly, that each had acquired all his/her separate property independently of, and without contribution from, the other (recital C). Victoria's separate property included Elm Row, stated to be worth about £750,000 and mortgage free. Frankie's separate property was the equity in Eastlake House, stated to be £50,000 before costs of sale. He had "no significant cash or other assets or debts." It was stated that Victoria has "substantial inheritance prospects from parents" and that Francesco has "some inheritance prospects on the death of his parents." Francesco had "just joined the pension of MPC but only two months ago."

[14] The PMA then recited at recital D the proposed purchase of Flat 7, 22 Westbourne Terrace, to which I will refer later. It recorded that Victoria (assisted by a gift from her father) would provide one half the costs of purchase. A mortgage in joint names would fund the other half. Francesco would fund the interest only on the mortgage. Upon sale, Victoria would receive one half ("equivalent to her contribution to the purchase costs") and the balance would be divided equally between them.

[15] Recital C expressly stated that "Victoria comes from a wealthy family" and contemplated (in wide terms) that Victoria may later acquire other assets from her parents or family, to be referred to as "Victoria's family gifts".

[16] Recital F recorded that each wished to retain as their own separate property their "separate property" as defined and identified, and that Victoria wished to retain as her own separate property "Victoria's family gifts" - viz later gifts from her family.

[17] Recitals G - K recorded, in summary, that each "expected and intended" the agreement to be binding on them throughout the world, and binding upon their heirs and personal representatives. Each had received separate and independent legal advice. Each were entering into the agreement "freely and voluntarily, without coercion, influence or pressure of any kind from the other or from any third party or from the circumstances or otherwise" (my emphasis). Each fully understood the nature and effect of this agreement and "the rights they are surrendering or limiting as a result of this  agreement ..."

[18] Recital K continued: " ... whilst acknowledging that in certain jurisdictions it may not be possible to oust the court's power to override the terms of this agreement they respectively acknowledge, intend and agree that in the event of a decree of separation, annulment or divorce ... in any jurisdiction this agreement shall be treated by them as binding and of full force and effect."

[19] Pausing there, recital K is the first of many provisions which make very clear and express reference to separation or divorce. Although Frankie did not believe that would occur, he can have been under no doubt or illusion that in the event of separation and divorce the agreement was still intended to govern. The agreement was patently targeted at least as much upon possible separation or divorce as upon regulating affairs during the subsistence of cohabitation and the marriage. Victoria knew from recital K that the agreement could be "overridden" by the court in certain jurisdictions and will unquestionably have been advised that England and Wales is one of them.

[20] The operative part of the agreement contains several belts and braces and repeats, as matters of agreement, many parts of the recitals. The essence is in Article 3:

"Victoria's separate property and Victoria's family gifts shall remain Victoria's. Francesco shall not either during or after the marriage make any claim in relation to Victoria's separate property or Victoria's family gifts and he hereby releases any and all rights or potential rights whether arising pursuant to the marriage or otherwise to Victoria's separate property or Victoria's family gifts, or any portion thereof."

[21] The second limb of Article 3 was to the reciprocal effect that Victoria would make no claim against Francesco's separate property. However it lacked mutuality for, as Mr Lewis Marks QC and Miss Marina Faggionato strongly emphasise on behalf of Frankie, it concluded with additional words in brackets "(save for claims relating to maintenance for Victoria and/or the child(ren) of the family)". This difference appeared again in Article 8 which provides that:

"8.   In the event of the dissolution ... of the marriage (or [permanent] separation ...) Francesco will make reasonable maintenance provision for Victoria and the child(ren) ... in the context of all the circumstances prevailing at the time ... and on the specific understanding that Victoria will fully utilise her capital to house and support herself and the child(ren) and, in particular, will purchase housing appropriate to the marriage and the prevailing circumstances."

[22] Mr Marks submits that that one-way article shows how unfair and one-sided the agreement was. It makes no provision for Victoria to maintain Frankie, but does require that Frankie "will make" reasonable maintenance provision for Victoria, albeit subject to the other qualifications in the article. It does, however, contain protection for Frankie, too, in that it makes clear that Victoria will "fully utilise" her capital not only to house but also to "support herself and the child(ren)."

[23] Article 10 provided that "The terms of this agreement shall be reviewed with the benefit of legal advice after 5 years have elapsed from the date of this agreement and every 3 years thereafter." Mr Charles Howard QC, on behalf of the wife, makes some play of the fact that Frankie has never apparently sought a formal "review" pursuant to that article. This carries no weight with me. First, there is no indication in the agreement as to how a "review" would be conducted or by what principles it would be guided. Second, by July 2010 (when 5 years had elapsed) there had been many stresses in the marriage and it is fanciful to suppose that around that time Victoria would have countenanced any relaxing of the terms. Third, the fact of the first and second Supplemental Agreements in 2006 and 2008, to which I refer below, effectively superseded some separate "review", at any rate for five years from the date of the second Supplemental Agreement. The claims which Frankie now makes effectively subsume any "review" by the parties now.

[24] The PMA concluded with two "Certificates of Independent Legal Advice received by" the respective parties. John Cornwell signed and certified that he had experience of, and expertise in, advising clients in relation to pre-marital contracts and that he had advised Francesco with regard to the agreement, on the terms included in the agreement, their meaning and effect. He continued:

"Francesco expressed himself to me as understanding, and appeared to me as fully understanding, the said Agreement and the nature and effect of the said Agreement on and in the light of present and future circumstances, and as understanding my advice to him. He stated to me, and it appeared to me, that he entered into the said Agreement willingly and without any pressure, duress, stress, undue influence or deception on the part of any other person, including Victoria or otherwise.

I believe that upon entering into this Agreement Francesco was fully advised and informed with regard to all the foregoing matters and may fairly be said to have acted independently herein."

The marriage, Westbourne Terrace, the first Supplemental Agreement and Avonmore Road

[25] The PMA having been signed, the marriage duly took place on 23 July 2005. At that time Frankie was working for MPC and earning just under £50,000 gross per annum. The day before the marriage the purchase of the flat at Westbourne Terrace was completed. Victoria, assisted by her father, provided all the down payment. During August 2005 Mike made a further payment to Frankie of £18,624. The circumstances in which that payment was requested (or Mike would say, demanded) and precisely what it was intended for, and how it was spent, are much disputed, although the email from Mike to Frankie dated 22 August 2005, now at bundle B/F3, seems to give a very clear contemporary account of how it was calculated. (It was a balancing figure so that the amounts paid by Victoria or her family and the final amount of the mortgage (£190,000) upon which Frankie was to pay the interest were equal). I do not intend to go further into this issue. Over eight years later it is, frankly, a footnote to the case, and the sum in question is now insignificant in the context of this case. In any event, the agreed revised asset schedule dated "18.02.14" clearly credits that sum back to Victoria out of the net proceeds of sale of Westbourne Terrace which is currently on the market. Whether she accounts for it to her father is between the two of them.

[26] They moved to live in Westbourne Terrace as their first matrimonial home.   Their first child and only daughter was born in December 2005. She is now aged 8.

[27] Victoria and Frankie soon felt that the flat in Westbourne Terrace was too small, and at too high a level (the fourth floor) for a family with a small child. By June 2006 Mike and Mary generously agreed to provide more money for the purchase of a house at Avonmore Road, London W14. The entire purchase cost of about £1 million (with associated legal costs) was paid as to £750,000 by Mike and £250,000 by Mary. I am sure that Mike, if not Mary, would not have agreed to fund the purchase unless the parties had already agreed to sign the first of two "Supplemental Agreements" (the FSA). This actually bears the date 18 June 2006 (shortly after completion of the purchase) but was patently drafted earlier.

The first Supplemental Agreement

[28] Again this was based upon, and recorded, full and frank financial disclosure, and was signed after independent legal advice. In the case of Frankie the Certificate of Independent Legal Advice (in identical terms to that attached to the PMA) was signed, and the advice given, by Rhiannon Lewis, a partner of John Cornwell. Recital B refers to the PMA and continues "... this agreement is intended to be read in conjunction with and be supplemental to that agreement." Clause 1 makes reference to the expressions "Victoria's separate property" and "Victoria's family gifts" which had been defined in the PMA. That is why, in paragraph 1 above, I have described the FSA as effectively repeating and reinforcing the PMA. Recital D refers to the intended purchase of Avonmore Road and that "the entire purchase price and related costs have been met by Victoria using monies gifted to her by her parents." There are similar recitals with regard to legal advice, capacity and understanding as in the PMA, and a repetition at recital J of recital K to the PMA. Clause 1 of the agreement states that "Avonmore Road shall be treated as Victoria's separate property and shall be treated in the same way as Victoria's separate property and Victoria's family gifts as provided for by clauses 3 - 5 of the pre-marital agreement."

[29] The parties only actually moved into Avonmore Road during 2007. Also in 2007 Frankie sold his flat at Eastlake House, realising in the event £30,000 net (since spent). Victoria sold the flat at Elm Row, realising £1,117,000 net which, at that stage, she retained. The flat at Westbourne Terrace was let, and from then on the mortgage has been funded out of the rental, so the period during which Frankie actually paid the interest on the mortgage out of his own earnings was not more than two years.

[30] In July 2007 Frankie changed jobs and began working for a firm (in the same industry) called Glassworks at an increased salary of £65,000 gross per annum.

Connaught Square and the Second Supplemental Agreement

[31] In December 2007 the parties moved from living in Avonmore Road to living in Mike's own house at that time at 26 Connaught Square, London W2. This is a fine, large, period house in a prestigious square, the value of which has escalated in the last few years. Soon afterwards Mike offered to Victoria (not to Frankie) that he would give the house to Victoria. But unquestionably this was a gift on terms and conditions. I am quite clear that by now Mike had low regard for Frankie and did not trust him an inch. He clearly regarded him as lazy and workshy. Even before the marriage, he had been told (whether or not accurately) that Frankie had had a number of girlfriends who were rich or were the daughters of very rich parents. He had always regarded Frankie as a gold-digger who had married for money and from whom Victoria's money and the assets he now proposed to give Victoria had to be utterly protected. During the course of his evidence Mike referred contemptuously to Frankie as "that man" and as "the predator".

[32] Mike wished to give Victoria Connaught Square as what he calls her "patrimony" by which he means, as I understand it, her and her children's inheritance given up-front during his lifetime rather than after his death.   He was determined that although Frankie could of course live in it, he was not to be able to get his hands on it.

[33] There were two conditions. First, there must be a "Second Supplemental Agreement" (SSA) making specific reference to Connaught Square. Second, Victoria had to promise Mike, which she did, that she would never sell, mortgage or charge Connaught Square without his prior consent ("the promise").

[34] In addition to these conditions there was a concurrent process of what was described both then and during the hearing as "levelling up" with Adam - i.e. ensuring that, roughly calculated, each of Adam and Victoria had benefited evenly from their father.

[35] As part of "levelling up" it was calculated that Victoria would still be in surplus compared with Adam by about £2 million. This was later paid by Victoria to her father by a cash payment of £600,000 in October 2008 from her retained proceeds of Elm Row, and by payment to him of the whole of the net proceeds of sale of Avonmore Road, namely about £1,440,000, when it was finally sold in December 2009. ("the £2 million").

The Second Supplemental Agreement

[36] This was dated 28 February 2008. I am sure that Mike was not willing to authorise the actual transfer of Connaught Square to Victoria until he knew that the SSA had been signed, and he would never have transferred Connaught Square to her if it had not been signed.

[37] The SSA is in many respects a "carbon copy" of the FSA. It was "intended to be read in conjunction with and to be supplemental to" both the PMA and the FSA. There was again full and frank disclosure.   Both parties again received independent legal advice, in Frankie's case again from John Cornwell, who signed a further certificate in the same terms as previously. Recital E referred to the proposed gift by Mike to Victoria of Connaught Square and continued "The gift is intended to be effected as soon as practicable after Victoria and Francesco execute this agreement ....  By this agreement Victoria and Francesco wish to enter into an agreement recording their wishes and intentions regarding Connaught Square." Clause 1 provided that "Connaught Square shall be treated as Victoria's separate property  and shall be treated in the same way as Victoria's separate property and Victoria's family gifts as provided for by clauses 3 - 5 of the pre-marital agreement."

[38] The appendix containing the "Summary of Victoria's assets and income" is significant. It referred, amongst other assets, to the net proceeds of sale of Elm Row and to her intention to sell Avonmore Road as soon as possible. It continued, in words that have been pored over during the hearing:

"Victoria intends to make a gift of approximately £600,000 to her brother Adam and may [my emphasis] make a further gift of £2 million to her father. These gifts will be funded by the cash at bank currently held by Victoria and from the sale proceeds of Avonmore Road."

[39] Under a heading "Income" the summary recorded that at that time Victoria was receiving "£12,000 per annum by way of an allowance paid by her father. £25,000 per annum by way of an allowance paid by her mother." It continued "Once Connaught Square has been transferred to Victoria her father intends to give her a further allowance of £24,000 per annum to cover the costs of Connaught Square. Victoria's father will also be responsible for the school fees for Victoria and Frankie's children."

The promise

[40] At paragraph 14 of his statement dated 17 December 2013, now at bundle A/E 224, Mike said that a second condition of the transfer was that Victoria would promise him not to sell, mortgage or otherwise charge Connaught Square without his agreement. He said it was not recorded in writing but she made the promise and he trusted her. The reason why he required the promise is clear. He wrote, and his oral evidence was to the same effect: "I knew that the Pre-Marital agreement and the Supplemental Agreements were not absolutely binding but I trusted that Victoria would stick to her promise not to sell or charge the property without my agreement." Mike was afraid that, even without divorce or separation, Frankie might pressurise Victoria into raising a mortgage on Connaught Square, or even into selling it, so as to generate cash which he, or they, might fritter, thereby debasing the patrimony. He considered that a promise given by Victoria to him would ring fence (my phrase, not his) Connaught Square and strengthen and protect her from any pressures from Frankie.

[41] At paragraph 30 of her statement dated 14 January 2014, now at bundle A/E 242, Victoria similarly described the promise.

[42] At the outset of the hearing Frankie and his lawyers were equivocal about the existence of this promise. During his oral evidence, however, Frankie himself admitted that Victoria had told him about the promise. Further, it is quite clear from the informal notes that the father's property solicitor, Mr Simon Mapstone of Goodman Derrick, made on a file, and from the oral evidence of Mr Mapstone, that conditions to this effect were under very active consideration before the transfer. His notes record a telephone conversation between himself, Nik Gollings (Mike's accountant) and Mike Luckwell on 25 March 2008. Mike [had] agreed with Victoria no sale, no mortgage, no collateral. However, as the notes evidence, there would be no charge or restriction recorded on the Land Register because this would amount to a "gift with reservation" and make the whole of Connaught Square vulnerable to Inheritance Tax on the death of Mr Luckwell. As a result it was decided that Mike would require and rely upon an oral promise alone from Victoria. Mr Mapstone said in his oral evidence that a week or so before the actual transfer Victoria told him "I assume you know my father has made me promise not to mortgage it, or sell it or use it as collateral for any form of debt."

[43] I am in no doubt that that promise was given. Mr Marks submits that a gift is a gift and that such a promise is not legally binding. Further, that if it was legally binding it would have just the same effect upon IHT as if it had been a written promise or entered as a charge upon the Land Register. However the legal status of the promise is irrelevant, as is the correct application of tax law to these events. The promise most certainly does not in any way bind this court or fetter my powers. The relevance of the promise is that it is part of the context of Mike's threat to stop all allowances and school fees to which I refer later.

Levelling up

[44] Understandly, Mike wished to treat his two children broadly equally and insisted on levelling up. Victoria knew that she had to level up. She did not know (and I understand still does not know) the extent of provision that her father had made to Adam, nor the value of any assets he had given to Adam. Mike did his own calculations as to levelling up and made his own decision as to the value of the assets he had transferred, which ranged from cash, forgiveness of a loan to Adam, shares to Adam and the property purchases or transfer made for or to Victoria. It is clear that in financial matters such as this Victoria just did as she was told, and that she accepted, with little or no question, figures proffered by her father. There was much cross examination of both Victoria and Mike about levelling up and the figures, and, most particularly, whether the £2 million had anything to do with levelling up at all. Victoria was very unclear whether the £2 million was anything to do with levelling up. She thought she had just decided to give it to her father. Mike was adamant that it was calculated as part of levelling up.

[45] The family's accountant is Mr Nicolas Gollings FCA of Gollings & Co. He was away on holiday during the first week of the hearing.   On his return he made a statement dated 17 February 2014 and gave oral evidence the next day. As a result of that statement and evidence, and the attached contemporary email dated 21 January 2008 and the spreadsheet that was attached to the email, I am quite satisfied that the figure of £2 million did indeed emerge as part of the calculation of levelling up. The email (to Mike) said "... we factored in Avonmore being worth circa £1.5 net of sale costs. These funds would be paid over to you along with the Elm Row proceeds and after off setting your other gifts would equate to you giving approx £1 million to both AL and VL." The spreadsheet clearly shows those sums being payable by Victoria to Mike to create levelling up between herself and Adam and each having then received about £1 million net from him. It is important to note that that email and the spreadsheet date from 21 January 2008.

[46] As part of levelling up Mike then calculated that Victoria should pay £600,000 to Adam, as recorded in the summary of her assets and income in the SSA. Mike later did a recalculation of share values and decided that Victoria needed to pay Adam only £500,000 which she duly did by instalments in March and July 2008. Nothing turns in this case on the reduction from £600,000 to £500,000 payable to Adam.

The £2 million

[47] Of course in relation to the £2 million, levelling up could have been achieved by Victoria paying a further £1 million to Adam rather than £2 million to her father.  If, therefore, it was merely levelling up, why was £2 million paid to her father rather than £1 million to Adam? Both Victoria and Mike were pressed very strongly about this. Mr Marks stressed that in the summary of Victoria's assets in the appendix to the SSA the words are that Victoria intends to make a gift of approximately £600,000 to Adam, but only that she may make a further gift of £2 million to her father. Victoria's own evidence under cross examination (in the absence of her father, whom I directed temporarily to leave the court) was that the payment of the £2 million "was completely voluntary". "I decided to make the gifts because why would I not?" "It was not a condition.   It was a discussion." Mr Marks submits that in a context in which Mike was attentive to minimising inheritance tax (see Mr Mapstone's notes and the decision for IHT reasons not to enter a charge or restriction on the Land register) it is odd that Mike himself decided to receive back £2 million from Victoria which, unless he later spent it, merely added £2 million back to his wealth and estate.

[48] In their written closing submissions at point 16.2 Mr Marks and Miss Faggionato say "1) £2 million is held for the wife, 2) [it is] a resource of hers." They say, correctly, that when a child pays money to a parent there is no presumption of advancement, and so they submit that the presumption is that Mike holds £2 million on a resulting trust for Victoria. When I commented that to establish that factual and legal outcome might require litigation between Victoria and her father, Mr Marks hastily said that they and Frankie "are not targeting the £2 million."

[49] In my view the £2 million simply is not a resource of Victoria's at all. She paid it to her father and cannot now recover it from him. I am quite clear that it was not a mere gift by Victoria and, notwithstanding the use of the word "may" in the asset summary, was a payment which Mike wished her to make, although he did not go so far as to require her to make it. As he put it, they talked about it and she agreed without demur. His reasons were three fold. First, he wished there to be levelling up, but he did not wish to be generous to the point of providing a further £1 million (still less, £2 million) to Adam. He said in oral evidence that if Victoria had not given him that money he might have felt obliged to give a further £2 million to Adam and he did not think that was appropriate. He thought that net gifts to each of them of about £1 million were enough. Second, he did not wish either of his children to have a substantial fund of cash. Third, in the case of Victoria he was undoubtedly keen to avoid money being available "for the predator" (this being the context in which he used that description).

[50] As well as referring to the £2 million, the summary of Victoria's assets and income in the SSA refers to the intention of Mike to increase her allowance from £12,000 to £36,000 per annum and to be responsible for the school fees. Mike himself said during cross examination about the £2 million that "I was willing to give her the allowance so it was a monthly allowance which could not be got at by Frankie. I thought a monthly allowance was better to avoid more money [being available] for the predator." Mr Marks and Miss Faggionato accordingly submit that, having received the £2 million, Mike is at least morally, if not legally enforceably, now obliged to continue to pay the allowance and the school fees, a point to which I return in paragraphs 90-100 below.


[51] In spring 2008 Mike moved out from Connaught Square and the parties began to occupy the whole house. The formal transfer was registered at the Land Registry on 2 April 2008.

[52] In March 2008 the parties' second child, a son, was born. He is now aged almost 6.

[53] In May 2008 Frankie was unfortunately made redundant by Glassworks. He was quickly offered a job at a slightly higher rate of pay by the then CEO of a company called UNIT in which Mike was the majority shareholder but in the running of which he was not then actively involved. Mike said in evidence, and I accept, that he told the then CEO that he would prefer it that Frankie did not get a job with UNIT. He requested the CEO not to employ him. Mike said he was in the United States (where he has a home) when he discovered that Frankie was working for UNIT and he was displeased. Apart from his low regard for Frankie, whom he considers to be lazy, his main reason was that he knew that it was his intention to make Adam the CEO, as he later did, and he did not think it a good idea to have his son-in-law as an employee of his son. He thought it was an unhealthy scenario.

[54] Mike's instinct was clearly right and it now seems clear that if Frankie had not worked for UNIT a great deal of anguish might have been avoided.

[55] At Christmas 2008 there was what was intended to be a happy family holiday in Barbados, in a villa, with Mike, Mary, Victoria, Frankie, Adam and the now two children. It was not a success. Both Adam and, later, Mike, left before the end of it and before they had planned to leave. The only relevance, if any, of the holiday to this case is that it clearly triggered huge upset in this family. It clearly emerged during the holiday that Mike planned to appoint Adam as CEO of UNIT and that if Adam did become the CEO he would, or might, fire Frankie. Quite who said what to whom about this is, frankly, irrelevant. Victoria supported her husband. In the aftermath of the holiday (i) in February 2009 Victoria became for a period seriously psychiatrically unwell; (ii) in March 2009 Frankie was indeed fired or sacked by Adam; (iii) very sadly indeed, Victoria has never since seen or communicated with Adam for, now, over 5 years, with the exception of three hours that he spent with her at Christmas 2009; and (iv) Mary told me that since the holiday she and Mike barely communicate at all.

2009 - 2011

[56] In mid February 2009 Victoria was admitted as an in-patient to a private psychiatric hospital. She remained there for about three months until May 2009. The immediately precipitating events and medical diagnosis and treatment are irrelevant to this case. It must patently have been a stressful time for her, for Frankie, and, no doubt, for her parents (her father was apparently prevented from visiting her).

[57] It was in that context that Frankie sent an email to Mike on 2 March 2009, now at bundle B/G1, which Mike produced during the hearing. It was clearly a request to open a dialogue between Mike and Frankie, Frankie saying "... I have lost sight of whether you are friend or foe." It was clearly an implicit request for more financial support, for he continued: "These points are hard for me to express in Victoria's absence without raising suspicions that I am just avaricious." He continued, in a sentence upon which Mike wishes to place weight: "I would be more than happy to sign legal documents forbidding me to personally financially benefit from any generosity passed on to Victoria [and the names of the two children]." It is clear from Mike's later letter dated 4 March (see below) that it was on the next day (3 March) that Frankie told Mike that what would make Victoria feel a lot better was if Mike would give her a substantial cash sum. According to Mike, the figure mentioned was £8 million, later increased to £10 million.

[58] During his cross examination of Mike, Mr Marks produced, without any prior disclosure, an intensely personal letter dated 4 March 2009 which was actually sent by Mike by email to Frankie and others on 6 March 2009.  It was not sent to Mary in 2009 and had never been seen by her. It must have been deeply distressing for Mary when this letter was suddenly produced in a public court room in 2014, and she learned of its existence and read its content for the first time. The letter is long and ranges over many family issues, going back into the childhood of Mary and the marriage and divorce of Mike and Mary. The main focus of the letter is, indeed, to counter a range of things which Mike understood that Mary had been saying about Mike. It harks back to the Barbados holiday and does refer at some length to Frankie's position at UNIT. It does include the following passages upon which, amongst others, Mr Marks placed reliance:

"I did not say, as I gather Mary relayed, that Frankie was a ‘profligate fortune hunter' and have never said that nor, more importantly, believed that. I believe he loves Victoria and that the feeling is mutual ..."

[59] Mike conceded in his oral evidence that he thought that probably Frankie did love Victoria and she loved him. However it is quite clear that the emollient words "... I ... have never ... believed that ..." were not Mike's true state of mind. He had believed for many years that Frankie was both profligate and a fortune hunter.

[60] The letter continues "I have always treated Victoria and Adam absolutely equally. Victoria and Adam stand to inherit the vast bulk of anything that may be left when I die - absolutely equally. This has not changed ..."

[61] Mike said that since that letter in 2009 he has made a further will, the contents of which (which have not been disclosed) are different from that current in 2009.

[62] Further on, the letter makes reference to the conversation in which Frankie had asked for a substantial sum of money to be paid to Victoria:

"Frankie mentioned to me, during our 90 minute call yesterday, [viz on 3 March] that one solution might be for me to just write a very large cheque to Victoria, big enough that Victoria and her family could, for the rest their lives, feel totally secure and be able to have a good life ...... although he said that he was not necessarily pushing for that.   I explained that I did not feel comfortable with his proposal. It does not seem sensible to put a virtually unlimited sum into an account to be administered by two people, one of whom is unwell and the other with no basic maths - nor do I have the money to do that."

[63] As Mike pointed out, if he had given £8 - 10 million to Victoria, as Frankie suggested, levelling up would have required him also to give £8 - 10 million to Adam.

[64] Other than evidencing the terrible stresses within this family, I gain little from either of these emails.

[65] Not long afterwards, still in March 2009 and while Victoria was still an in-patient, Adam did sack or fire Frankie from UNIT. In August 2009, after about four months of being unemployed, Frankie began a job, at a slightly lower salary, at Rushes Post Production. In December 2009 Victoria completed the sale of Avonmore Road and paid the balance of the £2 million to her father. At the same time he increased her allowance to the current rate of £51,000 per annum (plus school fees) and in January 2010 Mary increased her allowance to the current rate of £30,000 per annum.

[66] The year 2010 was relatively uneventful. In 2011 Frankie changed employment from Rushes Post Production to Prime Focus, at a salary of £62,000 gross per annum.

[67] In September 2011 Frankie saw a consultant psychiatrist, Dr Michael Craig, whose report dated 3 September 2011 is now at bundle B/B10. That reveals that Frankie himself had been receiving psychiatric help and medication since the time Victoria was an in-patient in 2009. It is not necessary to quote extensively from the intimate report.   In its conclusion Dr Craig wrote:

"After a period of having little direction, he gravitated towards the film business where he has been working since the age of 22 years old.   Unfortunately, however, this has involved him, in more recent years, becoming enmeshed with businesses that are connected (directly or indirectly) with his father-in-law. My overall understanding of this situation is that this has not being particularly helpful for Frankie and has continued to undermine his self-confidence.

My overall impression of Frankie was that he probably suffers from deep-rooted personality difficulties, which have made it difficult for him to form meaningful relationships. This has been associated with recurrent symptoms of anxiety and depression. It is also probable that these symptoms have had a significant negative effect of his ability to focus and concentrate throughout much of his education and occupational life. On balance, I am of the opinion that a diagnosis at Attention Deficit Hyperactivity Disorder (ADHD) is improbable."

2012 - 2013, the separation and divorce

[68] The third child, and second son, was born in January 2012.   He is now aged 2. He was born with certain serious medical problems and the period following his birth must have been one of great anxiety and stress for the whole family.

[69] In April 2012 Frankie was made redundant by Prime Focus and became unemployed for the rest of the marriage.

[70] On 18 November 2012 there was a sad and unfortunate episode when Victoria and Frankie were together in a pub. In an irrational gesture of self harm Frankie deliberately broke a glass against his head, which required considerable stitches. It was then agreed that he would temporarily leave Connaught Square. The marriage was by now clearly at a nadir and, in the event, he never returned to live at Connaught Square. He did, however,

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