28 May 2020 - Article
Where, in ancillary relief proceedings, there are complex financial structures, the Court has the power to order a ‘preliminary/oral discovery' hearing prior to the final hearing, whether this is designated as a trial of a preliminary issue, oral discovery or the first part of a split final hearing.
The parties had been married for eight years.
The husband was a wealthy man with commercial interests predominantly in Africa contained within corporate structures in Jersey and the British Virgin Islands.
The wife petitioned for divorce in February 2002 and commenced financial proceedings in October. By the time of the First Appointment in March 2003, the case had escalated – replies to lengthy questionnaires had led only to further questions and applications were being made to join third parties and for leave to serve letters of request abroad.
The matter was transferred to the High Court and a second First Appointment took place before Coleridge J in October 2003, during which the husband was ordered to make further disclosure with the case being listed for a further directions hearing in February 2004.
By February 2004, a vast amount of information from the husband, according to the wife, remained outstanding. Ordinarily, in such a situation, a further order for disclosure by the husband would have been made but, in this case, Coleridge J did not think that such an order would be helpful. Instead, he took the novel step of listing (with the agreement of Counsel) the matter for a three-day ‘preliminary/oral discovery' hearing as soon as was possible, the final hearing having already been listed for ten days in May 2005.
The logic behind the matter being listed for such a hearing was that it was felt by all concerned that a further, more traditional, order for disclosure would achieve little and that it may be productive to hear orally from the husband in respect of the disputed issues. It was felt that, if progress could be made to resolve the disputed issues at the hearing, the matter might stand a better chance of reaching a negotiated settlement without there being a costly, stressful and time-consuming final hearing.
By the end of the first day of the ‘preliminary/oral discovery' hearing, the husband had been cross-examined in respect of some of the key issues, negotiations had ensued and a settlement reached.
In his Judgment, Coleridge J set out a number of advantages, as he saw it, of listing matters for ‘preliminary/oral discovery' hearings. They are as follows:
- Explanations and factual issues can be fully tested at a far earlier stage than would otherwise be the case.
- The need for production of further documents can be more rigorously considered. Trips down blind alleys can be ruled out or curtailed.
- Preliminary indications, or even findings, can be made.
- The parties (and particularly the party under scrutiny) are able to appreciate at an early stage what they face in terms of examination both orally and in terms of the production of further documents and the involvement of other parties.
- Advisers are in a far better position to make accurate assessments of the outcome and so negotiations are more likely to be fruitful.
- No time overall is wasted as the final hearing, where these issues would normally be explored, is almost certain to be shortened.
- The court is able to immerse itself in the detail at an earlier stage and give more focused directions and, in the right case, indications.
Whilst it is clear that it may not be helpful or necessary to have a ‘preliminary/oral discovery' hearing in the vast majority of cases, it is clear that such a hearing may prove helpful in particularly complex cases where it can be used, as it was in the case in hand, as a means of progressing a case which has otherwise reached deadlock and is looking set for a final hearing.
Jemma Thomas and Michael Gouriet, in the Family Department, advised the wife.