Simon Thomas
Posted on 20 Mar 2014

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

Mr and Mrs Imerman married in 2001 and had one child. They separated in 2008. Mr Imerman is the principal beneficiary of various offshore discretionary trusts (the 'Trusts') and his wealth consisted of approximately £27 million.

This case is part of a number of others concerning Mr and Mrs Imerman which included contested financial remedy proceedings. A number of documents had been provided to the adult beneficiaries of the Trusts (who were Mr Imerman'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 Royal Court of Jersey had given the beneficiaries permission to disclose these documents to the English court, but only if they were ordered to do so. The Royal Court of Jersey expressed a number of concerns should the order for disclosure be made and invited the English court not to make the order. Mr Justice Moylan proceeded to give the order for disclosure and had been requested by the parties to give a judgment explaining the rationale behind his decision.

The reasons motivating Mr Justice Moylan's decision to order disclosure can be seen in the key issues in the financial remedy proceedings, which were:

(1)  whether the Trusts were "nuptial settlements" for the purposes of section 24 of the Matrimonial Causes Act 1973 ('MCA'); and

(2)  whether the assets of the Trusts were "financial resources available to the husband" within the meaning of section 25(2)(a) of the MCA.

In a previous related judgment, Mr Justice Moylan expressed the view that the trustees were in the best position to assist the court in the exercise of its powers under the MCA, as 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, Mr Imerman as the principal discretionary beneficiary of the Trusts. However, the trustees of the Trusts 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 statement of the Royal Court of Jersey 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",

disclosure of the documents was ordered.

Mr Justice Moylan held that, because evidence was not likely to be forthcoming from any other source, ordering the disclosure of these documents 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. Whilst the trustees had provided some information about the Trusts, they had refused to provide a considerable part of the information and documents sought.

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