Litigation Risk and the “Chinese Tiger”
Litigation risk is a term that is encountered by those that engage in litigation of all types which end up in the judicial process. It is a term used by lawyers to describe the spectrum of unpredictability when a matter is finally dealt with in court and the range of decisions that the court may come to. In some cases the litigation risk may be low if a party has a strong case or the law in the area is settled or in other cases the risk may be high due to it either being a weak case or the case turning on evidence being given in court (which can be unpredictable) or the law in that area is not clear cut.
Despite what many may think, vast swathes of law interpretation are viewed as more of an art than a science. Lawyers earn their fees in the grey areas in between the black letters of the law. Generally, if a case requires the involvement of the court, it is because the answer to the problem is not clear cut either factually or legally and the court is required to make a decision one way or the other.
Chances of success in cases involving disputes as to facts are often difficult to calculate due to the “litigation risk”. Ultimately, when civil (and sometimes criminal) cases are heard by a court, it will consist, in Jersey, of a judge and at least two Jurats. The Jurats will decide matters of fact. What happened, when, by whom, etc. Those decisions, therefore, will be made on the basis of what the Jurats hear and see at the final hearing of the case. Lawyers are, therefore, (to some extent) at the mercy of their witnesses and the impression that they give to the court in evidence. Some witnesses may be telling the truth but appear evasive about certain matters which damages their credibility which can be detrimental to the image that the court gleans of them. A whole case can turn on whether the court believes one party’s story over the other.
A highly unusual case, which shows how two different courts took very different views of the evidence of the same parties is the divorce case of Quan v Bray (dubbed the “Chinese Tiger” case) which has spanned 6 years and racked up legal fees of £7million.
Li Quan and Stuart Bray met in 1990, began living together in 1997 and married in 2001. The husband was a very successful banker. The wife was a conservationist who had a passion for the charitable cause of saving the endangered Chinese tiger. The wife set up a UK charity in 2000 with a Mauritius trust following shortly after in 2002 into which much of the husband’s wealth was poured.
The couple separated in 2012, at which point the wife was removed as director of the trust at which point the wife “blinded by revenge” set about the lengthy and acrimonious divorce litigation. The wife claimed that the trust was a vehicle which the husband was (or at least could be) using to fund his own lifestyle rather than as a way to help the intention of the trust, to help the tigers. The case came before Sir Paul Coleridge in 2014 where both parties gave extensive evidence to deal with the fundamentally crucial preliminary issue as to whether the trust was a “nuptial settlement” and/or whether it was a resource to which the husband had access.
In brief, a nuptial settlement is a trust or other settlement for the benefit of one or both of the parties or their children, created because of the marriage, or referring to the marriage, either before or after the marriage. Once a nuptial settlement is established, the court can make orders varying that settlement for the benefit of one or both of the parties. Therefore, in this case, if the court had found that the trust was a nuptial settlement, it would have had the power to vary the trust to provide the wife with capital. Alternatively, the court may have found that the trust was a resource to which the husband had access and the court could have made an order against him personally in the expectation that the trustees would have made payments to him to cover the liabilities enforced upon him.
The decision of Sir Paul Coleridge, which was upheld on appeal, was that the trust was not a nuptial settlement and neither the wife nor the husband were beneficiaries. Further, it was found, that the sole, continuing purpose of the trust was for the benefit of the Chinese tigers’ project.
The evidence given by the wife did not, suffice to say, impress Sir Paul who he described in his judgment as having been “beside herself with grief and anger” at the way she had been removed from the board of the trust and giving “wildly inaccurate” evidence at times. By contrast, he described the husband’s evidence as having “all the conventional hallmarks of honesty and accuracy”. The wife was found to be an “unreliable witness upon whom the court cannot rely”.
Once the preliminary issue had been dealt with, the case more recently came before Mostyn J in 2018. At this stage, the court’s remaining role (given that there was no capital of any note to be divided up) was to determine the level of spousal maintenance to be paid to the wife. It was clear that the impression which the husband gave to Mostyn J (or at least the impression that was gleaned by him) was in stark contrast to that drawn by Sir Paul Coleridge. Mostyn J described the husband as “manipulative, arrogant, menacing and contemptuous of the court’s authority. I do not accept any of his evidence unless it is either agreed or corroborated by clear contemporaneous documents.” Contrastingly, the wife was found to be a “credible witness”.
As a result of the impression the court received from the husband, the husband was ordered to pay to the wife £64,000 per annum but, peculiarly, Mostyn J decided to leave the door ajar for the wife to potentially have a claim for a capital settlement in the future if the husband was able to accumulate sufficient capital to enable a clean break payment to be made to the wife. Such an order is highly unusual given the court’s clear goal to provide finality between the parties in family law cases. Especially as this case had been going on for 6 years already.
What this case does demonstrate in a very unusual but interesting twist is that it is not always possible to predict how a court will view a witnesses’ evidence on the day. The implications of this can be significant especially when at the end of a court hearing the court will make a binding decision which the parties are stuck with. There are many other ways to try and resolve disputes within a legal framework. The umbrella term is “Alternate Dispute Resolution” and depending upon your dispute, there are different forms which allow the parties (to a greater or lesser extent) control over the process and take away some of the uncertainty of the court process which allow for a resolution which both parties may be happy(er) with.