Robertson v Robertson

This is a wife’s claim for financial remedies after divorce. Without any objection, or even demur, by or on behalf of either party, I heard the whole of this case in public, save for a period of about five minutes when I very briefly went into private to touch upon a sensitive matter personal to the parties. I now give this judgment in public. It may be freely reported, but no report of, or relating to, this judgment may name the children (whose names I will not disclose), nor their home addresses or school.

At the outset I would like to thank the four counsel, very ably supported by their instructing solicitors, for the very high quality of the oral and written presentation of this case. I hope that each party will respectively feel that his/her case could not have been better presented. I also wish to thank both parties themselves for their patience, close attention and, so far as possible, good humour during the course of the hearing.

The law, as developed by the courts, recognises that there is an analytical distinction between so-called matrimonial and non-matrimonial (including pre-marital) property or assets, and that that distinction may, and often will, impact upon discretionary distribution after divorce. In the present case, the husband already owned before the cohabitation and marriage publicly quoted shares in a company of which he was a co-founder and the chief executive officer. He still owns most of them. When the parties began their relationship and cohabitation those shares were trading at around 12 to 8p each (the parties differing as to the precise month in which cohabitation began). When the parties finally separated, the shares were trading at around £67 each. At one point since the separation the shares were trading at as high as about £70 each.

The agreed market price of the shares for the purpose of this hearing and judgment is £29.09 each (being their value during 25 February 2016). I mention that even during the course of the hearing they rose as high as £31 each, thereby adding nearly £14 million to the gross wealth at that moment of the husband. (Partly for that reason I will generally use rounded figures in this judgment. When the combined assets of the parties may rise or fall by several millions of pounds, even as they are sitting in the court room, it is petty and pedantic in judgment to use very precise figures, although that is how they appear in the agreed asset schedule.)

The central issue in the case is how the value of those shares should be treated by me, and to what extent the wife should share in their value. A slightly complicating feature is that since the separation the husband has sold some of the shares and invested the proceeds in three properties in Wimbledon, purchased in his sole name, whose aggregate net value is about £20.1 million. The husband says that the remaining shares and also those three properties are non-matrimonial assets, and that the wife should not share in them or their value at all.

The wife concedes that the actual value of the shares as at the date when the parties began to cohabit, uprated by an assessment of so-called passive growth, should be carved out as a non-matrimonial asset and ascribed to the husband. But she says that the balance of their value (representing so-called active growth during the period of the cohabitation and marriage) should be divided equally between the parties on the sharing principle, being, she contends, matrimonial assets. The accountant’s assessment of the net value of the shares uprated for passive growth since June/July 2002 (when the wife contends they began to cohabit) is about £4.84 million. The bottom line total of all the net assets on the agreed asset schedule (i.e. the combined total net wealth of these parties) is about £219.5 million.

The wife therefore contends that she should retain or receive assets to the value of about £107.33 million, being half of £219.5 million less £4.84 million. The husband contends that, strictly, the wife should retain or receive assets to the value of £29.2 million, being half of £219.5 million less the sum of £141 million (the net value of the remaining shares) and £20.1 million (the net value of the three Wimbledon properties purchased from share sales since separation). The husband has, in fact, agreed that the wife should retain or receive assets to the net value of £30.26 million.

The parties are thus very polarised and entrenched between two very hard edged positions: total exclusion of the value of the premarital shares (and of the three properties into which some of them have been converted); or total inclusion of the value of those shares and properties, save for the relatively small carved out portion of £4.84 million, to represent the value of the shares at the date cohabitation began, uprated for passive growth. The gap between the parties is about £77 million (£107.33 million less £30.26 million).

At several stages at the outset of, and during the course of, the hearing I very strongly urged and encouraged the parties to settle the case. I have pointed out the high element of litigation risk when each is taking these relatively extreme, polarised and hard edged positions. But no compromise has resulted.

There is very little material dispute as to the material facts, and I can summarise them fairly shortly. The husband is now aged 48. The wife is now aged 43. They first met in the summer of 2002, having been introduced by Lorri Penn (see below), who was already employed by the husband’s company. There is a dispute as to whether they rapidly began to live together in about June/July 2002, as the wife contends, or in September 2002, as the husband contends. Nothing turns on whether the cohabitation was about two months longer or shorter, and wisely neither leading counsel asked questions about this issue. Accordingly, I make no finding as to the precise month in which cohabitation began. Paradoxically, the husband’s shares were trading in June/July 2002 at about 12p each, higher than in September when they were trading at about 8p each. Since the wife is the applicant and it is her case that they began to cohabit in June/July, I will assume (favourably to the husband but consistent with the wife’s case) that at the start of cohabitation the shares were trading at about 12p each.

The parties continued to live together until their marriage in December 2004. They have two daughters, now aged eight and seven, who were born less than a year apart, so the wife became pregnant for the second time only about two months after giving birth the first time.

Very sadly the marriage broke down. Each party no doubt has their own perspective of the reasons for that, which are touched upon in the written evidence, but they are immaterial to outcome. The wife did say in her oral evidence that they were largely living what she called “separate lives” in 2011, but they struggled on and indeed undertook counselling in late 2012. During 2013 they were still living under the same roof, and indeed during 2013 several investment properties were purchased in joint names. The parties finally separated around the end of 2013. This was thus a cohabitation and marriage of about ten to eleven years’ duration. Both had grounds for divorce, but it was the wife who petitioned for divorce in May 2014 and the present proceedings ensued.

The parties were relatively mature people when they first met, the husband being then aged 34, and the wife 29. When they met, the wife had a small start-up business of her own, but it was struggling and she was, as she said in her oral evidence, having difficulties servicing the mortgage upon her flat. So the husband bought the flat from her with a large mortgage and let it out. She moved into his rented flat. At the point when they began to cohabit, the wife therefore had negligible means.

In 1996 the husband, whose earlier background had been working in advertising, founded a company called Entertainment Marketing (EM) jointly with a man called Quentin Griffiths, whom he had met at a business event. The business of EM was “product placement”, which essentially involves getting the client’s branded product, whether it be a pair of sunglasses or a car or a foodstuff, used in films or on television, thereby promoting the product. EM was successful, but quite soon the husband and Quentin Griffiths identified another business opportunity which the husband calls effectively “the other side of the same coin”, namely selling online to the public products which they have seen on film or television. For this purpose, they created a new company, As Seen On Screen Limited (now called ASOS, to which for convenience I will refer to it from the outset). The business was launched online in about May 2000.

The husband describes, and I accept, that EM and ASOS were “folded into one”, and ASOS was able to launch utilising the existing funds, staff, IT, and other infrastructure of EM. Although the nature of the business was different, there is an evolutionary stream from the first launch of EM in 1996. During 2000 ASOS recruited a lady, Lorri Penn, whose background was in fashion with the well known retail group, Arcadia, and she was clearly a significant influence upon the decision of ASOS to focus upon selling clothes and fashion, and to shed selling other household products and items.

ASOS was floated on the AIM of the London Stock Exchange in October 2001, still many months before these parties met. It floated at 20p per share, valuing the company as a whole at about £12.3 million. As already indicated, that price was later to fall to about 12p per share in July 2002, 8p in September 2002, and later during 2003 to as low as about 4p. When the parties began to cohabit (in whichever month it was), the husband owned about 9.9 million of the issued shares in ASOS, or about 16 per cent. In June 2002 those shares were theoretically worth about £1.2 million gross, although he could not realistically have sold them. The husband was already the CEO of the company, a position he was to retain until he resigned in September 2015.

The private financial situation of the husband was that he lived in a rented flat. He had a fairly old Mercedes car. He described themselves in his oral evidence as “a normal couple starting out on life”. During 2003 the husband was able to buy a house in Fulham with a large mortgage and help from his parents. By the time of the marriage, he had a new Porsche car and was able to fund the costs of the wedding and an exotic honeymoon on Bora Bora. During 2005 he was able to buy the chalet which the parties still own in Chamonix. So the husband’s prosperity was rising, but it was still dwarfed by the later success and wealth.

ASOS did indeed become highly successful, having a current market cap in excess of £2 billion. But I accept, as table 1 at bundle 2, p.G44, indicates, that the major growth did not begin until about 2010, well after the date of the marriage. The husband received salary, bonuses, and share options and grants as his remuneration as CEO. A schedule headed “Share Sales Valuation” was produced for the hearing which shows the dates upon which shares were later sold and their estimated net proceeds. In the period from February 2007 to October 2013, the husband exercised options and sold the option shares, granted shares and some of his pre-existing shares. He realised in total an estimated net £73 million, of which about £11.5 million net was from the sale of his original shares pre-existing before the parties ever met, and £61.5 million was from options and grants earned during the marriage. The husband suggested during his oral evidence that, very roughly, the averaged annualised aggregate net value of share options and grants received and realised by him (but excluding pre-existing shares) plus his net salary, was not less than about £6 million per annum during the period of cohabitation and marriage. He says, therefore, that he was very well remunerated for his very hard work and entrepreneurial skill during the course of the marriage, and that the wife has shared, and will now share, equally in the fruits of that work. The proceeds of the share sales during the marriage were spent in part on family living expenses, but largely invested in properties, funds and other assets, which he unreservedly agrees to share equally with the wife.

There is no doubt that before, throughout and since the cohabitation and marriage the husband worked very hard indeed, and displayed vision and entrepreneurial skill in the evolution of EM into ASOS, and in developing ASOS into the highly successful online fashion company which it now is.

There is also no doubt that during the course of the cohabitation and marriage the wife played her part to the full as the home-maker, and, when the children were born, the stay-at-home mother. She never worked in paid employment during the marriage, and had no involvement in the business of ASOS. She ran the homes, which ultimately extended to three, one in London, one in Oxfordshire and the chalet in Chamonix.

During the course of his oral evidence the husband agreed that, “We were a partnership, a team. I accept that her contribution as a home-maker and primary carer of the children was just as important as my role as the money maker. She was an excellent home-maker and an excellent mother, and still is. I was effective at money making. That was the partnership we had.”

There is an agreed joint asset schedule, which is available for anyone with a proper interest in this matter to read. I will summarise its main features in a very compressed way to give the financial context for this judgment. Some of the assets and liabilities are joint, some in the husband’s name, and some in that of the wife. Save for the remaining ASOS shares (which are in the husband’s sole name) and the three investment properties in Wimbledon purchased with the proceeds of share sales since the separation (also in the husband’s sole name), it is irrelevant in whose name an asset or liability currently is, since it is agreed that they will overall be shared equally.

The matrimonial home in Greater London, which the wife will receive, is worth about £12.4 million net. Their house in Oxfordshire, which the wife will also receive, is worth about £3.2 million net. The chalet in Chamonix, which the husband will receive, is worth about £1.5 million net. Other investment properties, which will be apportioned between them, are worth about £21.6 million. (I include in this, as agreed, the flat in Battersea, which is in the husband’s name, but which he agrees should be equally shared.) The three investment properties in Wimbledon, bought by the husband since separation, are worth about £20.1 million. The total net value of all the properties is £58.9 million (the slight arithmetical difference is due to rounding).

There are net sums in bank and similar accounts or portfolios of about £11.3 million. The parties have lent various sums, and the net amount due to them is about £6.45 million. There are valuables totalling £1.25 million, and a number of vehicles and boats totalling about £2 million. The husband has certain other business interests worth about £2.45 million. The parties have debts or liabilities assessed at £3.73 million. Additionally, the husband’s remaining ASOS shares are valued at £140.8 million net of estimated inherent CGT.

As I have already said, the assumed grand total of all the above, being the aggregate combined assets and liabilities of both parties, is in the schedule at £219.5 million (the slight arithmetical difference from the sum of the above figures being again due to rounding).

As I have already said, the courts clearly draw an analytical distinction between matrimonial and non-matrimonial property and assets. That is very clear from the judgments of the House of Lords in Miller; McFarlane [2006] UKHL 24, where Lord Nicholls of Birkenhead headed a section of his judgment above paragraph 21 with the words “Matrimonial and non-matrimonial property”, the matrimonial property being “the financial product of the parties’ endeavour …” That should be shared “… however long or short the marriage may have been” (Lord Nicholls at paragraph 22). He continued at paragraph 23:

“The matter stands differently regarding property (‘non-matrimonial property’) the parties bring with them into the marriage or acquire by inheritance or gift during the marriage …”

Similarly in a passage under the heading “The source of the assets …” above paragraph 147, Baroness Hale of Richmond said at paragraph 153 that:

“The nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared.”

While the analytical distinction is clear, it may be far from easy to decide whether an asset should properly be characterised as matrimonial or non-matrimonial, or indeed as somewhat hybrid; and, in truth, it is around that difficulty that a lot of the argument in this case has really centred.

On behalf of the husband, Mr Jonathan Cohen QC and Miss Judith Murray submit, when their argument is stripped of the detail, that the position is really very straightforward and simple. The valuable shares which the husband now owns in ASOS (and the shares which he recently sold with which to purchase the three Wimbledon properties) are the residue of precisely the same shares that he already owned in ASOS some two or more years before he even met the wife. They are, accordingly, non-matrimonial property. Mr Cohen and Miss Murray readily agree that the share options exercised and grants received during the course of the marriage were matrimonial property, being part of the husband’s remuneration package or rewards whilst the marriage was in being. But those have all been sold, and it is agreed that the assets acquired with, or now representing, the proceeds should be equally shared.

On behalf of the wife, Mr Tim Bishop QC and Mr Michael Bradley submit that the position is not as simple as Mr Cohen and Miss Murray suggest. They rely upon the approach adopted by Wilson LJ in Jones v Jones [2011] EWCA Civ 41. That develops the concept of “passive” growth. Adopting the same methodology as that applied by Wilson LJ in Jones v Jones, Mr Bishop and Mr Bradley agree that the actual value of the shares at the start of the relationship should be ascribed exclusively to the husband, together with an assessed figure of the “passive” growth which may be expected to have occurred in any event on those shares without any input by the husband. But they submit that the difference between the aggregate of those two figures and the current actual value of the shares (all netted down for inherent taxation) is “active” growth and matrimonial property, being referable in whole or in part to the husband’s endeavour during the marriage, and so squarely within Lord Nicholls’ concept of a matrimonial asset. Mr Bishop and Mr Bradley thus submit that the whole of the value of the shares (or their proceeds) which represents active growth should be evenly shared.

Jones v Jones itself is not the easiest of cases from which to extract a clear ratio or precedent. Arden LJ appears to have disagreed with Wilson LJ’s approach to passive growth, and she said expressly at paragraph 60 of her judgment that:

“… I would query whether what Wilson LJ proposes in his judgment is really passive growth and reject [my emphasis] the notion that the only growth that can be take into account is passive growth …”

and then went on to explain why.

Although Sir Nicholas Wall P begins his judgment with the words, “I, too, agree that this appeal should be allowed for the reasons given by Wilson LJ”, he continues by saying that he “makes no comment on the means whereby he has reached his conclusions”, and expresses relief that the final result is “an old fashioned third”. He said at paragraph 68 that, “Any greater proportion would, in my judgment, inflate the wife’s claim and be unfair to the husband …”

Whether by way of cross-check (Wilson LJ at paragraph 52) or in the case of Arden LJ as an integral part of her reasoning (see paragraph 64 where she said, “… that cross-check is an essential part of my reasoning for my concurrence in the result in this case …”), all three members of the court seem to have founded their ultimate decision on an overall sense of fairness that, on the facts of that case, about 32 per cent to the wife was fair. However, I accept unreservedly the submission of Mr Bishop that the methodology of Wilson LJ in Jones, and the concept of “passive” and correlative “active” growth, has frequently been adopted and applied in subsequent cases at first instance to which he referred me.

It needs to be stressed, however, that the methodology is a tool and not a rule. The overarching duty upon the court is to exercise its statutory duty under section 25 of the Matrimonial Causes Act 1973 (as amended) and to exercise the wide discretionary powers conferred upon, and entrusted to, it by Parliament in a way which is principled and above all fair to both parties on the facts and in the circumstances of the particular case.

In the present case, pursuant to a direction by Moor J (which was resisted by the husband on the grounds of irrelevance), Mr Jason Lane BA, CTA, a partner of Saffery Champness, accountants, was instructed as a single joint expert “to report on the value in today’s terms of [the husband’s] shareholding/interest in ASOS at June 2002 and September 2002”. His resulting report is one of great thoroughness and accountancy expertise and erudition at which one can only marvel, and to which I pay tribute. After an extensive investigation of publicly available material and also documents and information supplied on behalf of the parties (but he was instructed not to speak directly to either party), Mr Lane has expressed an opinion as to the passive growth upon the shares, and accordingly as to the value of the shares in June and September 2002 uprated to include that passive growth. He has expressly read the judgment of Wilson LJ in Jones v Jones and sought to apply the same methodology. He concludes that the percentage of passive growth since June 2002 has been 466 per cent, and since September 2002 (when the shares were trading at a lower price on the AIM) has been 488.9 per cent. This results in his conclusion that the gross value of the shares as at 13 January 2016 (the date of the report) is £6.7 million, allowing for passive growth since June 2002, and £4.9 million, allowing for passive growth since September 2002, resulting in net figures of £4.84 million and £3.56 million respectively.

Mr Lane was not asked to attend for cross-examination, and I unreservedly accept that the information which he describes and the methodology which he adopts in his report results in those conclusions. One reservation should, however, be noted from the answer to question 1 in Mr Lane’s subsequent letter dated 25 January 2016, now at bundle 2, p.G92, where he said that:

“… In order to consider the exercise of assuming purely passive economic growth would … require an economist to identify statistically significant correlations that have a causal impact on the company …”

Mr Lane is:

“… not, however, an economist and [does] not have relevant expertise … Therefore, there is significant difficulty for a non-economist such as [himself] to apply the concept of passive growth.”

The short submission of Mr Bishop and Mr Bradley, though elaborated in powerful advocacy, is that, applying the methodology in Jones, £4.84 million should be carved out for the husband from the total assets as non-matrimonial, but all else should be treated as matrimonial and divided equally.

At this point it is instructive to note some observations in the House of Lords in Miller, which is the case from which much of the subsequent jurisprudence derives. In Miller the parties married in July 2000 (there was no prior cohabitation). At that date the husband was actually still employed as an asset manager by a firm called Jupiter (owned by Commerzbank). There was a gentlemen’s agreement between the husband and a man called John Duffield that the husband would join Mr Duffield in a new company to be formed and to be called New Star Asset Management. The husband actually joined New Star in January 2001 (viz several months after the marriage), at which point he purchased 200,000 shares in New Star for £200,000. Although the judge was later to describe the value of the husband’s New Star shares as “inestimable”, and their future value “unfathomable”, it is clear from paragraph 49 of the judgment of Lord Nicholls of Birkenhead that by the time of the hearing before the judge the shares had a latent value of many millions of pounds, there being references to £12 million and £18 million for the whole, and to a likely sale price of £6 million for 75,000 out of the total holding of 200,000. So in the space of about three years, all during the marriage or in the period before trial, the husband had first acquired the shares, and they had increased in value from £200,000 to many millions of pounds of the above order. The shares could not possibly have been pre-marital or non-matrimonial, for New Star did not even exist at the date of the marriage (see Lord Nicholls of Birkenhead at paragraph 70). Lord Nicholls of Birkenhead said at paragraph 73:

“An award of £5 million … represents less than one-third of the value of the New Star shares and less than one-sixth of the husband’s total worth. An award of less than half of the value of the New Star shares reflects the amount of work done by the husband on this business project before the marriage.” [my emphasis]

Lord Mance said at paragraph 173:

“On the other hand, where at the beginning (or end) of the marriage an actual transaction is under way or in view which in due course yields a considerable new asset, there is no difficulty in principle (even if there may be some difficulty in valuation) in accepting that part of that asset may have to be excluded from any assessment of matrimonial acquest or included in what the parties brought into the marriage. In the present case, Mr Miller already had, at the marriage date, real connections in the form of the Jupiter funds which he later took to New Star and real prospects under the gentlemen’s agreement made with Mr Duffield of acquiring, as he subsequently did, valuable shares in New Star. I would regard these as real contributions brought into the marriage, which should on any view be taken into account accordingly.”

Although the facts of Miller are very unusual, and it was a childless and very short marriage, those passages indicate a discretionary approach to an asset, the New Star shares, which could not on any view be regarded as non-matrimonial since the company did not even exist at the date of the marriage.

The methodology in Jones happened to result in a calculated award for the wife of about one-third of the whole which, on the facts of that case, all three members of the Court of Appeal thought was fair. Application of the Jones methodology and the evidence of Mr Lane in this case would exclude only £4.84 million out of £219.5 million. That would accord to the wife about £107.33 million and to the husband about £112.17 million; or just under 49 per cent and just over 51 per cent respectively of the whole.

That, instinctively, seems to me to be so unfair to the husband on the facts and in the circumstances of this case, and so over-generous to the wife, that I propose, not merely by way of cross-check but in substantive exercise of my statutory duty, now to consider this case by reference to all the matters in section 25 of the Matrimonial Causes Act 1973 considered seriatim, though not in the order in which they there appear. In moving to this next stage of this judgment, I may appear to counsel not to have dealt at length with the many detailed points they made to me, and the many authorities upon which each rely in development of their arguments whether the ASOS shares are or are not matrimonial. I do not overlook those points and arguments, but I regard the debate as ultimately sterile. Further, the strongest united message to emerge from all three judgments in Jones is that first instance judgments in cases of this kind should be short, concise and avoid over-elaboration or over-sophistication.

By section 25(1) of the Matrimonial Causes Act, it is my duty to give first consideration to the welfare, while minors, of the two children of the family. But however this case is finally resolved, both their parents will be very rich and nothing which I have to decide should impact upon the welfare of the children. The parents have agreed that they will contribute equally to the children’s school fees and similar outgoings. The children do, and will, spend significant time with both parents, and each will fund the children during the time that they are with him or her respectively. These children need want for nothing material.

So I turn to the matters listed under section 25(2), to which the court must have particular regard. The husband and wife are now aged respectively 48 and 43. I take the duration of the cohabitation and marriage as about 10/11 years, nothing turning on whether it was ten or eleven. Neither party has any relevant physical or mental disability. There was no bad conduct of either of the parties that it would be inequitable to disregard. Each displayed good conduct as a parent and, in the case of the husband, as a financial provider, and in the case of the wife as a home-maker, but that is subsumed in my consideration of contributions below. In this case there is no loss of any benefit of the kind contemplated by paragraph (h) of section 25(2).

Neither party has any financial obligations and responsibilities save to their children and each other. They have some, proportionately very small, debts which they can very easily repay. The husband has a new partner, but on any possible outcome of this case he will be amply able to discharge any responsibilities he may have assumed towards her. Each party will be left with an amount that exceeds their capital and income needs, however generously assessed, and I need not give any discrete consideration to their needs, nor to the budget produced by the wife, although it was subjected to some scrutiny and criticism during the hearing.

I need to refer a little more fully to the standard of living enjoyed by the family before the breakdown of the marriage. In the earlier years of the marriage it was not particularly high. As the husband said, they were a normal couple, starting out on life, living first in a rented flat; then moving to a small, heavily mortgaged owned house; then trading up to a better house; and so on, until they acquired the large and valuable final matrimonial home in August 2010, by which time the husband was able to raise large sums from share sales. They began with an old Mercedes. They now have a fleet of cars, including Range Rovers, a Bentley, and a Ferrari. Fairly early in their marriage they bought, in 2005, and have always enjoyed a commodious chalet in Chamonix, both being keen skiers. Later in 2008, they bought their farmhouse in Oxfordshire. It cost £1.75 million. It is now valued at £3.2 million net. They have a motor yacht with four crew in the South of France. It was from about 2010 that the husband was able to make large sales of shares, and from about that time that the standard of living became high, as indicated by, for example, travel by hired private jet.

With regard to paragraph (a), I have already summarised at paragraphs 22-25 above, the current property and other financial resources of the parties. The wife has not worked in paid employment since the marriage, and it is not suggested that she ever should. Her only income will be that derived from her share of the capital. Last September the husband retired as CEO of ASOS, although he remains on the board. I have not been told of any current earned income by him, and I assume that he now does, and will derive all, or substantially all, his income from capital. There is no suggestion that he, too, should have to work.

I turn next to paragraph (f) and the contribution which each of the parties has made, or is likely in the foreseeable future to make, to the welfare of the family, including any contribution by looking after the home or caring for the family. In this regard the husband claims to have made what has become known as a “special contribution”. Mr Cohen made clear that this was only a fall-back argument, which the husband neither wished nor needed to advance and rely upon if I exclude the ASOS shares and the three investment properties in Wimbledon, since he is in agreement that all else should be divided equally. However, as part of my overall exercise of discretion, I must duly consider the husband’s claim to have been made a special contribution.

Relatively recently, in my own judgment in Gray v Work [2015] EWHC 834 (Fam), I endeavoured to summarise the law in relation to special contribution at paragraphs 128 to 144. I have been told that a single Lady Justice has given the husband in that case permission to appeal from that aspect of my judgment and decision, although I do not know whether the suggested grounds of appeal pertain to my summary of the law or to my application of it to the facts of that particular case. The appeal will apparently not be heard until next December. Despite what I have been told, I continue to consider that my decision in Gray v Work was right, and I would not change a word in paragraphs 128 to 144. So far as I am aware, there has been no subsequent or more recent decision which adds to, or leads to a need to qualify, that summary. It is, in my view, desirable that if a given judge has recently described the law on a given topic in a certain way, he should not, in the absence of some subsequent change or development, describe it differently in a later judgment. In other words, a judge should, so far as possible, be consistent and not tailor or manipulate his account of a uniform law to meet the facts of a particular case. For this reason, and having regard to the message as to brevity from Jones, I will not repeat those paragraphs, but expressly incorporate them by reference at this point of this judgment and now direct myself by them.

One additional point needs to be made, which is of relevance to the present case but was not to Gray v Work, in which it was only after and during the course of the marriage that the husband embarked upon the employment which generated the wealth. At paragraph 21 of his judgment in K v L [2011] EWCA Civ 550, Wilson LJ, with whom the other members of the court agreed, said:

“Thus a special contribution arises in circumstances in which a spouse’s contribution, direct or indirect, to the creation of the matrimonial property has been so extraordinary as to dictate a departure within the sharing principle from the ordinary consequence of its equal division …” (emphasis in the original judgment)

The focus in this part of this judgment is not upon how much or what portion of the ASOS shares should be treated as “matrimonial” or “non-matrimonial”, but upon whether the husband made a special contribution to any part which is matrimonial so as to justify a departure from equal sharing of that part. I make clear that in my view the scale of the wealth in this case is amply large enough to admit consideration of special contribution, and if and in so far as Mr Bishop and Mr Bradley were submitting otherwise in the second bullet point in paragraph 28 of their written “outline closing submissions”, I disagree with them. However, I agree with them that the husband did not, in fact, make a special contribution during the marriage as that concept is understood and applied by the courts as I have described in Gray v Work.

There is no doubt that ASOS has been, and remains, a highly successful company. It was recently confirmed as the best performing share in the 20 year life of the AIM. It now employs over 3,000 people in the UK alone. It has generated phenomenal capital growth for the shareholders, including the husband, who has only ever had a relatively small minority share. ASOS as a company has won a very long list of awards, almost all of them since the start of cohabitation, as set out by the husband in the schedule to his section 25 statement, now at bundle 1, pp.D154 to 157. The husband, personally, has won the prestigious awards listed at paragraph 30 of that statement, now at bundle 1, pp.D140 to 141. These include several awards as “Entrepreneur of the Year”. He has apparently been described by the Daily Telegraph newspaper as “one of the greatest entrepreneurs of the 20^th century”, although that seems a little surprising since his achievements belong more to the 21^st century than to the 20^th. He has been honoured by Her Majesty the Queen with the award of an OBE. Neither the wife, nor her counsel, nor I in any way whatsoever belittle, diminish, or detract from, the great success of the husband personally as co-founder of, and until very recently CEO of, ASOS. As Mr Bishop and Mr Bradley put it in their written closing document, “The husband’s achievements over the course of this marriage are impressive. He was talented, hard working, astute, and a very good leader of a team”; but, they continue, “he was not notably innovative, revolutionary, or possessed of any truly extraordinary quality.”

The husband co-founded the company with another, Quentin Griffiths. He led the team, but relied upon the input of many team members, notably the focus upon fashion of Lorri Penn, recruited well before the marriage. He did not invent the internet, and he contributed nothing to it or to the phenomenal expansion in its availability and use. He did not invent internet shopping, nor even internet clothes shopping. Rather, he, with others, both in the ASOS team and in other competitor companies, spotted the direction in which the internet might travel and successfully exploited it.

As I said to Mr Bishop during the course of the hearing, Mr Robertson does, in my view, come markedly nearer to establishing a special contribution than did Mr Work, there being obvious points of difference between the role and achievements of Mr Robertson and those of Mr Work (to some of which I referred in paragraph 153 of my judgment in that case). Nevertheless, I am not persuaded that even Mr Robertson demonstrates during the period of the cohabitation and marriage the exceptional and individual quality that the authorities require. I continue, personally, to dislike the use of the word “genius” for the reasons I gave in paragraph 141 of my judgment in Gray v Work, but if it is apt at all, Mr Robertson is not, with respect to him, a genius.

In any event, it is fundamental to a successful claim to special contribution that it be unmatched, and the court must be astute to avoid discrimination against a party, usually a wife, who was the home-maker and had the daily role of caring for the children. As I have already quoted, the husband agreed in his oral evidence that during their marriage they had been “a team”, in which he was the money maker and she was “an excellent home-maker”, and “an excellent mother and still is”. He agreed in his evidence that the wife ran the family life effectively, while he was very effective at money making. That was the “partnership” they had. He agreed that the fact that the wife looked after the children left him free to concentrate on ASOS, and that he knew that his daughters were well cared for while he dealt with a myriad business problems.

Against that background I ask rhetorically: what more could the wife have done or contributed to the marriage or to the welfare of the family? It is relatively easy to express the earnings or the wealth of the money earner and wealth creator in financial terms. What price can be put on the role within the “partnership” or “team” of the wife and mother who fulfilled her role to the full in the home, and thereby freed up the husband, as he agreed, to make the money? Any outcome which treated some special contribution of the husband in this case as “unmatched” would, in my view, be highly discriminatory.

In this regard I mention briefly one point of contention in the evidence. For many years now the wife has employed and continues to employ a lady whom I will call L. There is a wrangle between the parties in the written evidence, carried over briefly into the oral evidence, as to whether L was (or is) a “nanny”, as the husband alleges, or a “housekeeper”, as the wife prefers to describe her. I regard this as completely irrelevant to this point. It is an obvious feature of cases and families with higher resources that some staff may be employed. It is nit-picking whether that staff (to put it pictorially) wash the dishes while the mother changes the nappies, or change the nappies while the mother washes the dishes. I completely reject that the wife of a successful and high earning husband should somehow receive less just because his success has enabled staff to be employed, if, as in this case, the wife remained an excellent home-maker and an excellent mother.

I conclude that both parties should be regarded as contributing equally during the period of cohabitation and marriage to the welfare of the family and there should be no adjustment to the award to reflect some imbalance in their contributions of the kind contemplated by paragraph (f).

As well as having particular regard to the matters listed in section 25(2), the court is required by section 25(1) of the Matrimonial Causes Act 1973 to have regard to all the circumstances of the case. In my view, it is one of the circumstances of this case that the husband already owned the ASOS shares before the cohabitation and marriage; that they already had value then; but that they greatly increased in value during the period of the cohabitation and marriage. The question for the discretion of the court is: how fairly to reflect those considerations in making its overall exercise of discretion? Although there was a major, or even total, change of direction between the business and product of EM and that of ASOS, as it finally evolved, the fact remains that the husband jointly with Quentin Griffiths first began in business on his own account in 1996. I accept his evidence that ASOS was able to launch utilising the funds, staff, IT and infrastructure of EM, which was already an established and profitable company. Although the husband and his colleagues may not have appreciated how use of the internet would grow and its full potential, they had clearly tapped into it and its potential before these parties ever even met. The focus on fashion had clearly begun, evidenced by the recruitment of Lorri Penn. Many key decisions had already been taken before these parties first met, including the decisions to specialise as an online business alone, and to establish its own in-house website.

Of course, a successful company does not stand still, but depends upon dynamic and visionary management. Mr Bishop and Mr Bradley produced a written list of twenty “management decisions” under a heading “The active management decisions which grew ASOS as identified in the SJE’s report”, being decisions taken during the period of the cohabitation and marriage. These were not decisions taken by the husband alone. They were part of the management of the company by a large and expanding team, albeit led by him as CEO. As CEO and an employee of the company, the husband was, in any event, well remunerated with salary and additional shares, in which the wife has shared and will equally share.

In my view, it does not fairly reflect these considerations to carve out from the current value of the shares a mere £4.8 million, as Mr Bishop and Mr Bradley, basing themselves on Mr Lane’s report, contend. Much greater allowance must, in fairness to the husband, be made for the history in order, to borrow words from Lord Nicholls in Miller quoted in paragraph 38 above, to “reflect the amount of work done by the husband on this business project before the marriage”. But, in my view, the pre-existing shares cannot, in fairness to the wife, be carved out and left out of account altogether. They were not simply left in a drawer, to use a metaphor used during the course of the argument. They were part of the backdrop of the whole matrimonial economy; and to borrow words from Baroness Hale of Richmond in Miller quoted in paragraph 27 above, they were part of “the way the couple have run their lives”.

As the “Share Sales Valuation” schedule shows, the husband readily took the shares out of the drawer and sold them when the parties wanted to invest in new homes for themselves. He sold pre-existing shares for an estimated net £1.57 million in July 2008, shortly before the purchase of the house in Oxfordshire. He sold more pre-existing shares for an estimated £10 million net in July 2010, shortly before the parties bought the final matrimonial home. Although his and his alone, the shares were part of the family economy which the husband was quite willing to draw upon and spend for the family as a whole. They cannot accurately be described as “ring fenced”, as Mr Cohen submitted.

In my view, not as an accountancy exercise, but in the exercise of broad judicial discretion, the only fair way to treat the remaining pre-existing shares (and the three Wimbledon investment properties) is to treat them as to half as the personal non-matrimonial property of the husband, and as to half as the matrimonial property of the parties to be evenly shared.

That decision rapidly leads to my decision as to overall outcome. For this purpose I will depart from rounding and use the precise figures with which the parties themselves have chosen to describe their means in the agreed joint asset schedule. One half of the net value of the remaining ASOS shares is £70,418,990. One half of the net value of the three investment properties in Wimbledon is £10,066,875. The sum of those two figures is £80,485,865. That figure must be deducted from the grand total of all assets and liabilities of £219,500,679. The difference is £139,014,814. That sum must be divided equally, yielding £69,507,407, which I assess as the overall entitlement of the wife on the sharing principle, the balance belonging to the husband.

The parties have already agreed that in part-satisfaction of her entitlement the wife shall receive or retain the following:

If that figure is credited against the figure of £69,507,407, the balance is £39,241,008. Provided transfers are made to reflect the above, the husband must pay to the wife a lump sum of £39,241,008. The obligation to pay a lump sum can of course be satisfied by agreement between the parties by the transfer of other assets, whether shares or property, from the husband to the wife, with appropriate agreed cash adjustments to the lump sum.

A share of £69,507,407 out of £219,500,679 happens to be about 31.66 per cent of the whole. I stress that I have NOT reached the overall award by application of an overall percentage approach, whether the “old-fashioned third” referred to by Sir Nicholas Wall P in Jones v Jones or any other. Rather, I have approached the fair division of the assets in the way I have described, apportioning to the wife one-quarter of the net value of the remaining ASOS shares and the three Wimbledon investment properties for the reasons I have given and described. It so happens that the resulting overall figure accords to the wife 31.66 per cent of the overall net assets, which happens to approximate to one-third. Just under one-third of the whole seems to me, looking broadly at all the facts and circumstances of the case, to be neither unjustifiably high, nor unjustifiably low, and the cross-check satisfies me that I should not further alter or adjust the figure to which I have already come.

I have reached this decision in the exercise of the judicial discretion which Parliament has imposed upon, and entrusted to, the courts. Of course, on one level the decision may be said to be arbitrary. I could have awarded more, or less, and two judges might (and probably would) have reached conclusions which differed to some degree. To that extent any exercise of judicial discretion may be said to be arbitrary, as indeed Wilson LJ effectively so described it in Jones v Jones at paragraph 35 where he said:

“Criticism can easily be levelled at both approaches. In different ways they are both highly arbitrary. Application of the sharing principle is inherently arbitrary; such is, I suggest, a fact we should accept and by which we should cease to be disconcerted.”

A decision to award 50 per cent (“sharing”) or 45 per cent or 40 per cent or 35 per cent or 31.66 per cent can of course be described as arbitrary, whatever the percentage awarded, and even if it is half, as Wilson LJ said. I, personally, consider that there is nevertheless a distinction between an award which is arbitrary in the true sense, and one which is the product of judicial discretion. An arbitrary result would be one yielded by sticking in a pin, or tossing a coin, or drawing a lot. Judicial discretion is the product of a weighing of all relevant factors and wise, considered and informed decision making by an experienced adjudicator after hearing argument. My decision is a discretionary one, but it is not an arbitrary one.

Each party has incurred costs by the end of this process of about £500,000. Although those are large sums, they are reasonably proportionate, both to the totality of the assets in this case and the amount which divided these parties. It is agreed that whatever the outcome there should be no order as to costs.

There is no winner and no loser in this decision and outcome. I was very sorry that the parties could not resolve their differences by negotiation last week, as I so strongly urged them to do. Now that a decision has been taken, I hope that it can be rapidly implemented (liquidity not being any issue in this case), and that the parties can move on and rebuild their own lives, whilst continuing to communicate and co-operate harmoniously with each other as the parents of two much loved but still young and vulnerable children.