Varsha Bhadresh Gohil v Bhadresh Babulal Gohil & Ors

At the conclusion of his judgment in the Supreme Court and when remitting the Wife’s claim for ancillary relief for rehearing, Lord Wilson said:

“…Moylan J faces an unenviable task in keeping the scale of his enquiry within tight bounds’

That was said on 14 October 2015. Only now some 9 and ½ years later has that enquiry been undertaken.

The name Gohil will linger long in the memories of lawyers and judges across a range of jurisdictions. Whether, as has been suggested, this is the most extensively litigated ‘family’ dispute in legal history I do not know. The fact that the divorce petition was issued on 20 May 2002 and that this judgment on the financial remedy application is being delivered in April 2025 hints at the tortuous route that the case has followed. In May 2002, the Wife and the Husband were 37 years old and the three children were 10, 8 and 5. The Husband was a successful commercial solicitor in practice in the West End and the family led a life commensurate with that; the children attending expensive fee-paying schools and the family living in a large ‘family’ home in Chislehurst. In April 2004, a modest ancillary relief Consent Order was made by Baron J and decree nisi was pronounced in July 2004. However, that was certainly not the end of the dispute, not even the end of the beginning, for the 21 years since have seen the most extraordinary implosion of a family play out through the criminal, family and civil courts and even this judgment may not represent the beginning of the end. The Husband and Wife are now 60 and their children are 33, 31 and 28. Along the way:

More of the history is referred to in the Chronology, which is annexed to this Judgment, but it will be evident even from that short summary that the amount of information which is available, the volume of commentary which is possible and the task of keeping a grasp on the issues and the evidence which bears upon them is unusually complicated. Lord Wilson was prescient in identifying the unenviable task facing the trial judge, although in October 2015 he could never have envisaged that it would be Williams J seeking to determine the limits of the enquiry given I was about to appear a few weeks later in that court as an advocate. At the heart of this dispute though, the ultimate issues are those encountered in any financial remedy claim and the task of the court is to evaluate the evidence, reach conclusions of fact on the balance of probabilities and then to apply the principles of sharing, needs and compensation in an appropriate manner.

In this hearing, the Wife has been represented pro bono by Mr Morgan Sirikanda and Mr Amiot Vollenweider. The Husband has appeared in person. The other 7 Respondents were joined because they were identified as the legal owners of assets which the Wife claimed (or the Crown Court had found) were owned by the Husband. Mr Christopher KC appeared for Mr Shamutete and Mr Mutati as he had in the Confiscation proceedings. Mr Kinnear KC, Mr Tyler and Mr Newbold appeared for the CPS who became intervenors as they held a Restraint Order over the Husband’s assets and, since 2023, a Confiscation Order.

The history of the case comprises some significant ‘milestones’ with much distance between them. I shall refer to the most significant hearings as they appear to me. The long journeys between are incorporated into the Chronology.

Given the volume of material – that before me numbers some 9,000 pages – and the extensive evidence and submissions I have heard in the course of this hearing I will throughout this judgment seek to record that which seems most material to the decisions I have to reach. This hearing was listed for 4 weeks with a week reading, 2 weeks of evidence, 2 days for submissions and 3 days for judgment writing. On top of the huge consumption of court time that the case has taken in the Family Division alone that seemed to me a proportionate allocation of time. In fact, some further days have had to be allotted to it to complete the judgment, but the reality is that to read all the material, to record even the substance of all the oral, written and documentary evidence, to record and evaluate all the submissions and to give decisions on each and every point that might emerge from them would be the work of months if not years. One particular aspect which emerges from judgments of those who have heard parts of the Gohil cases before me (Moylan J, DM Lampert, HHJ Tomlinson) is the extent to which inconsistent evidence of submissions emerge (from the Husband and his family mainly but also the Wife) and, given that the Husband has been found to have forged documents and to have acted dishonestly even on his own account, attempting to reconcile the evidence to try to discern a consistent and clear history is probably impossible without the investment of many more months of time and far deeper mining of the evidence with forensic accountants, document examiners and the like. Fortunately, my task is to reach decisions on the disputed facts on the balance of probabilities.

Following the issuing of the Wife’s application for ancillary relief in 2002, a lengthy inquiry was undertaken. During the course of the financial remedy proceedings, the Husband asserted through affidavits and his Form E that his only significant capital asset was a one third interest in an account held in the name of Odessa Management Ltd with a bank in Switzerland. The Husband had set up Odessa Management Ltd, a BVI company, in 1996. It apparently had one bearer share held at Schroder’s bank, Switzerland, this bank being the one which held the company’s bank accounts. He asserted his only income was from his legal practice and that this was modest.

In the course of the proceedings – which are charted in the judgment of Moylan J of 25 September 2012 – a forensic accountant was instructed to consider whether the Husband had an interest in various offshore companies and assets. The Wife had gained access to the Husband’s lap-top whilst he was abroad and had obtained many documents which were covered by the Hildebrand principles. On the basis of evidence provided by (amongst others) Mr Chaturvedi of Merrill Lynch, in New York, that the Husband had only Power of Attorney and no personal interest in assets such as a bank account with Merrill Lynch in the name of an entity called Parabola, the forensic accountant concluded that the evidence supported the Husband’s rebuttal.

When the application came before Baron J for FDR an agreement was reached. That order provided for the payment of a lump sum to the Wife of £270,000 payable in instalments of £100,000 within two months of the order and £170,000 payable on exchange of contracts for the purchase by the Wife of a property. The Wife did not purchase a property, but the second instalment was paid in June 2009 pursuant to further orders made by the court. The Husband was also ordered to pay periodical payments for the Wife at the rate of £500 per calendar month and for each of the three children of the family at the rate of £333.33 per month.

The order contained Recital 14 which said:

“and upon it being recorded that the petitioner believes that the first respondent [the husband] has not provided full and frank disclosure of his financial circumstances, although this is disputed by the first respondent, but is compromising her claims in the terms set out in this consent order despite this in order to achieve finality”

The Wife issued her application alleging serious intentional material non-disclosure on 3 July 2007. This was founded upon her own suspicions but more importantly information she had received from the Husband’s father. Due to the criminal proceedings being commenced against the Husband – he being charged in September 2008 - the original final hearing of that application which was listed for 10 October 2008 was adjourned and finally determined some four years later in September 2012. In the course of that application, an issue arose within the Wife’s application for disclosure from the Crown Prosecution Service. The Secretary of State for the Home Department intervened, and Moylan J determined that application on 30 May 2012 following which the set-aside application hearing concluded in June after which Moylan J reserved judgment. In the meantime, the CPS and the Secretary of State lodged an appeal in relation to the use to which material provided pursuant to a ‘Mutual Legal Assistance’ request (MLA) could be put. The outcome of that appeal SSHD and CPS -v-Gohil [2012] EWCA Civ 1550 was:

“[36] It follows that, unless the requested country consents to its wider use, there is a statutory prohibition on the use of evidence [obtained from another country under the 2003 Act] for any purpose other than that specified in the request without the consent of the requested authority. The prohibition applies as much to the use of evidence in other criminal investigations and proceedings as it does to its use in civil proceedings of any description..

[40] Section 9 (2) of the 2003 act clearly prohibits the subsequent use of documents and other articles obtained….. even where they have been adduced in evidence in open court….”

[41] Thus Mrs Gohil cannot adduce the documents. But although she cannot adduce the documents, she can use the information contained in them as a springboard for conducting her own enquiries with a view to obtaining other evidence on which she can rely without contravening section 9 (2) of the 2003 act.

In the course of his judgment on the set aside, Moylan J relied on statements made in open court in the criminal proceedings in particular evidence provided by Mr Chaturvedi of Merrill Lynch which contradicted that which had been available in 2004. As the Supreme Court later noted what reliance could be placed in a re-hearing of the financial remedy claims would be a decision for the trial judge and as it happens and as is identified elsewhere in this judgment, the US Department of Justice and the relevant authorities in Mauritius, Austria, the Isle of Man and Guernsey have now provided their consent.

The Wife, the Husband and the Husband’s father gave evidence. The Wife relied on various items of evidence in support of her contention that the Husband was guilty of serious and material financial non-disclosure and that he was not reliant on his drawings as a partner at Arlingtons Sharmas but had substantial undeclared capital and income from other sources. The evidence she relied on comprised the following.

The Husband maintained that the contents of his father’s affidavit was untrue and that his mother’s evidence only meant his father had taken all the funds they had accumulated. He produced evidence that Odessa funds were exhausted in 2006 and the account closed in mid-2007 but this was demonstrated to be false when Odessa statements were disclosed showing it had £79k in it as at December 2007 and that it had been replenished in 2004/5/6 from funds which could not have been from the Husband’s drawings on Arlingtons Sharmas. Moylan J found the Husband to be unable to explain the inconsistency.

The Husband’s evidence as to the purchase and source of funds for the 2 Raj Classic flats which the Wife suggested were beneficially his was so varied and confusing that Moylan J said “I found it difficult to make sense of the husbands inconsistent evidence on this issue and found his answers entirely lacking in credibility”. The Husband’s evidence as to funds paid to Hemptons was also found to be inconsistent and contradictory.

Moylan J rejected the Wife’s allegation that the Consent Order of 2004 had been agreed without her being consulted or informed of the detailed terms and that she had been pressurised into accepting it. He considered that the extent of the litigation had led the Wife to lose any objectivity about the proceedings. He also rejected the Wife’s allegation that the forensic accountant had been surreptitiously provided with additional documentation by the Husband.

Moylan J recorded the following:

Moylan J concluded as follows:

Moylan J set aside only paragraph 5 of the 30 April 2004 order (which dismissed the Wife’s claims) solely on the basis of a decision of the Court of Appeal which would have rendered the lump sum paid to the Wife liable to the Restraint Order had the lump sum order been set aside; see para 106. He said any other parts of the order could be set aside once the Wife’s application had been determined.

Subsequently the Court of Appeal allowed the Husband’s appeal against the set aside. The Wife appealed and a 7 Justice Supreme Court restored Moylan J’s order on the basis that on the admissible evidence (stripping out MLA material) Moylan J would properly have found the Husband to have been guilty of material non-disclosure in 2004; Gohil-v-Gohil [2015] UKSC 61. They said

“…it is clear that over the 8 days Moylan J did conduct a full fact finding hearing and did find as a fact, no doubt on the balance of probabilities, that the husband had been guilty of [material] nondisclosure.” [25]

From paragraph 36-40, Lord Wilson identified the evidence that could be relied on and its impact.

The Wife’s application for all forms of ancillary relief was to be restored for re-hearing. Mostyn J became the allocated judge and he adjourned that determination until the Confiscation Order proceedings had concluded.

HHJ Tomlinson heard the Confiscation proceedings at Southwark Crown Court over a very protracted period of time. The defendant was the Husband and Interested Parties within the meaning of s.10A Proceeds of Crime Act 2002 were:

On 3 October 2022 HHJ Tomlinson notified this court of his conclusions that:

On 28 October 2022 he delivered a written judgment. It was supplemented by a further judgment given in July 2023 and the Confiscation Order was made on 24 July 2023. The status of that judgment has been the matter of some debate – legally and evidentially – which I shall consider later but the conclusions reached after such a protracted process are clearly of significance and they bite differently as far as different parties are concerned.

At the same time, HHJ Tomlinson also released his findings in the related case involving James Ibori and Udoamaka Onuigbo. The sums involved in their criminality are eye-watering. In an attempt to bribe the Nigerian Economic and Financial Crimes Commission, they delivered $15m in cash to its head. The confiscation proceedings took an inordinately long time for a host of reasons set out in HHJ Tomlinson’s judgment including that in 2016 the Husband (and others) sought to appeal their convictions out of time and it took the Court of Appeal until February 2018 to determine those applications.

HHJ Tomlinson was immersed in the case over several years. He read, heard and considered evidence from a range of sources including from the Husband (although he did not give oral evidence), from an accredited financial investigator and from an accredited forensic accountant. The judgment and addendum are rich in detail, discussion and conclusion. What follows are only selected extracts which bear upon matters which are in issue in the application before me. [my added emphasis]

From paragraph 163 onwards HHJ Tomlinson addressed the issue of transactions which pre-dated the start of criminality, but which were brought into account in the confiscation proceedings by operation of the General Criminal Conduct assumptions in POCA. This is where the Interested Parties become engaged.

The overall benefit beyond the ambits of the indictments was said to be:

In respect of the Interested Parties, HHJ Tomlinson examined the evidence including that submitted by them, although none gave oral evidence and concluded as follows:

It emerges from the judgment that the benefit of criminal conduct is assessed in many instances by reference to the sums that passed through the Arlingtons’ accounts. By virtue of how the POCA scheme works, a criminal may be attributed with benefit when it is acknowledged that it has not ‘stuck’ in his hands or ever did. A money launderer who passes £1m through his account may be attributed a benefit of £1m even though it is acknowledged the £1m was passed on - even to another person. Thus, for my purposes a conclusion that the Husband received a benefit of £xm does not necessarily mean that that sum remained in his hands. Furthermore, where the POCA assumptions apply, this leads to sums being determined to be benefit of GCC on the basis that the defendant has not disproved that they are the proceeds of crime. It is therefore perfectly possible for the Crown Court by the application of assumptions to determine that the value of an asset represents benefit from general criminal conduct but for this court to determine on evidence that on balance of probability it was the product of legitimate business either at that time or earlier. That has implications for the determination of whether assets are tainted and thus available for distribution. Furthermore, if a criminal is attributed with a benefit of £1m and has realisable assets of £1m the confiscation order will apply to that £1m even if the evidence supports a conclusion that of the £1m the criminal only retained £100k and that the £900,000 is untainted. Thus, the POCA scheme contains within it both the possibility that assumptions could be displaced by findings on evidence and a recognition that ‘innocent’ funds may be included within the available amount.

In his later judgment in July 2023, HHJ Tomlinson [1-840] dealt with some issues that had been left unaddressed.

A further strand of the litigation that has engulfed the family came to a conclusion before Deputy Master Lampert. That case – brought by the Wife to uphold the Will of the 2^nd Respondent by which he had left his estate to the sons of the Wife and Husband and to the Wife. This was contested by the Third Respondent who challenged the validity of the Will on the basis of undue influence, fraud and calumny. DM Lampert’s judgment includes the following.

A number of issues relating to the documentary evidence had to be addressed at the outset of the case. The Husband had emailed my clerk in advance of the hearing in relation to the Bundles and had apparently referred to documents being included which he said should not have been. My clerk informed him that if he wanted to raise such issues that an application would need to be made. No application was made and during the course of the week set aside for reading a number of Bundles were submitted by the Wife and the Husband.

It emerged on the first day of the hearing that issues remained in relation to the documents.

Having urged me to proceed to a final hearing and not to await the CPS recovery process and having said he thought his cross-examination of the Wife might take several days and acknowledging he would be cross-examined by the Wife and CPS including saying (1-645):

In the course of the hearing, further documentation was produced by each of the parties including Mr Shamutete and Mr Mutati. The Wife had produced additional documents in the Bundles which were clearly additional to those which had been produced in her statement in support of her case. Given I had not provided (by oversight at the October directions I think) for her to reply to the Husband’s evidence as to marital assets and third party interests, I permitted her to (in effect) reply to the Husband’s evidence and consequently permitted him to produce further documents he considered relevant in the light of the Wife’s additional documents. That resulted in Bundle BG3. Following cross-examination on behalf of Mr Shamutete and Mr Mutati the Husband produced BG4 which he submitted was relevant to whether Mr Shamutete had been involved in a particular commercial transaction which they denied knowledge of. I did not permit him to adduce this.

The CPS produced further documentary evidence which had become disclosable as a result of consents being given by Mauritius and the Isle of Man to use MLA material. They also produced some property particulars which related to the Wife’s housing need. MLA consent had not been secured from Singapore, Hong Kong or Switzerland. It emerged that consent requests had not been made to the Swiss authorities and so the documentary evidence relating to the accounts held in Switzerland (the Enzo International Schroders account, Parabola Schroders account, the Willard Investments Julius Baer account, the Castlegrove Julius Baer account, and the Wellwick Capital account at VP Bank) and Parabola/Miramar/Westlake/Sloan Capital accounts at Pictet and Cie (Singapore) and the Zetland Group account at HSBC Hong Kong were only poorly evidenced.

Mr Shamutete and Mr Mutati produced further bank statements they had obtained in the proceedings in Singapore to show how funds had been applied from the Pictet and Cie accounts there. No party applied for a ‘general’ order that they disclose all the material they had obtained and so what was produced was curated by them.

The evidence is contained within the electronic Bundles. In old currency it would have amounted to 30 or so Lever Arch files. My summary of the evidence and the witnesses in this judgment can only scratch the surface of that huge volume of material and I have aimed to record that which I consider essential to each parties’ case and which forms the foundations of my judgment. Much of their cases are recorded in this judgment either in narrative form or by reference to documents they considered essential to explaining their position and their evidence in the detailed Chronology which is appended to this judgment. That Chronology forms an integral part of this judgment and should be read together with it. To incorporate all of that material and the analysis of it which feeds into the evaluation in this judgment would both have made this judgment inordinately long (assuming it isn’t already) but also would have required many further days of writing which I do not consider to be a proportionate use of time; particularly in a case which has already had far more than what might be said to be its ‘fair’ share having regard to the issues and sums involved.

I only heard from 3 witnesses: the Wife, Mr Wren of the NCA and the Husband. Devan Gohil the parties’ son filed a statement dealing with how possible ‘Imerman’ documents came into his possession, but the Husband did not wish to question him, although in his own oral evidence he asserted that Devan was not telling the truth. There are many others who could have given evidence but were not called. Over the years, forensic accountants were instructed in both the financial remedy and the confiscation proceedings but no party sought permission to call expert evidence in this case although the Husband referred to and placed significant weight on the report of Julia Walker and referred to the evidence of the forensic accountants he had instructed in the Confiscation proceedings. The following could have given evidence but did not – consistent with the position adopted in the confiscation proceedings.

The Wife’s evidence is contained within the following documents.

The Wife has also prepared a number of Chronologies, Flow Charts or Tables from material which she has received, and she relied on those in particular.

Mrs Gohil gave evidence over the course of 2 days. She was calm and measured throughout which, given she was cross-examined by the Husband for most of that time, was a testament to her resilience. No request for special measures had been made although the issue of domestic abuse had been raised and I did not consider it necessary to implement any of my own motion. Her account goes back over 30 or more years and so the possibility of memory creep or failure is a very real one. The experiences of 23 years since separation must have shaped both her memories but also her personality as they make up over 1/3 of her adult life. I have little doubt that giving evidence must have been a stressful experience – her future financial security is dependent on the outcome and her pursuit of justice has inevitably had an impact on how she perceives evidence. She has clearly spent huge amounts of time digesting, sorting and analysing the evidence that has been obtained and her Flow Charts and other analytical documents display the extent of her efforts. Her grasp of the documents was deep – although not as deep as the Husband’s – and I sensed that she had wearied of the process and did not have the energy to continue with the same intensity that she clearly once had. She acknowledged that she had not read BG1 – she had by the sounds of it flicked through it. The Husband was critical of her for this – I am not. A further near 4,000 pages of material from the Husband who she believes with good reason to be highly capable of obfuscation would present (and did present) a challenge even to highly experienced lawyers – for a woman worn down by 23 years of pursuit of her financial remedy claim it could present an intolerable burden.

Her evidence about the impact of events of the last 23 years on her and the children was compelling. Clearly the tide of strain and pressure has ebbed and flowed over those years. It seemed clear that the events around the Consent Order of May 2004 had been particularly stressful as she had believed she had available the Husband’s fathers affidavit supporting her position that the Husband was failing to disclose significant wealth but this potential game-changer evaporated shortly before the FDR and with the forensic accountant’s report being more nuanced than she had perhaps expected her oral evidence to me suggested that she felt defeated and could not face the prospect of further litigation and so settled notwithstanding she believed – rightly as it turned out – that the Husband had successfully obscured his finances. At this time the children were 12, 10 and 7, she was living with her parents and fighting heavily contested litigation. It is not surprising that she should have reached the end of her resources at this time. She said:

The Husband’s cross-examination of the Wife was well prepared and undertaken with precision. There was little to be learned of the parties or the dynamic between them but given they have been separated for 23 years that is hardly a surprise. The topics that the Husband cross-examined on were trailed in his statements. There were significant sections which focused on the Wife’s analysis of his documents although when I pointed out to him that this was more a matter for submissions than cross-examination, he was able to set that topic down. A significant part of the evidence that the Husband sought to elicit related to demonstrating that the standard of living the family had enjoyed was not as luxurious as the Wife portrayed it; that she had not contributed financially or by care of the family in the way she claimed; that the Husband had been generous in the settlement of 2004; that it was the Wife’s unreasonableness in refusing his offers of help to purchase housing post 2004 that had led to her being in rented accommodation for so long; that the children had not been affected as she maintained; that she had not taken appropriate steps to secure a career and an income following the separation; that she was overstating her needs to a very substantial degree now and that she had other financial resources available to her. In almost all of these endeavours the Wife robustly refuted the Husband’s case and did so with a credible alternative account. One example suffices; the Husband had proposed that the Wife and children move into a house which backed onto the former matrimonial home which understandably she refused having both relocated to NorthWest London and not wanting to be in her Husband’s family’s orbit. I refer below to those aspects of her evidence which were less credible in particular relating to the standard of living that the family lived and to her quantification of what that would translate to now but apart from that and applying a modest discount to reflect how the Wife’s views have been shaped by events and the passage of time; I concluded that the Wife was broadly a reliable witness in her exchanges on these issues.

Large tracts of the Wife’s evidence are her interpretation of the documents relating to the Husband’s activities and I have little doubt that she has a deep understanding of them but ultimately, they are not her documents and she was not involved in any of the transactions covered and so her commentary on them is just that. Some of her recall is based on what she has seen in those documents and in her evidence there was some blurring of what she could recall from before separation with what she has learned in the 23 years since, about company identities in particular. She also had access to the Husband’s lap-top and extracted a significant amount of material from it in April-June 2002 which was returned to the Husband pursuant Hildebrand principles. Her recollection is that material she saw was not subsequently produced pursuant to the Husband’s disclosure obligations which included documents from Lombard Odier showing a significant balance standing to the Husband’s account. Much of the Husband’s cross examination of the Wife was related to her evaluation of the documents. She did not accept the Husband’s contention that the documentation he had provided demonstrated that he had been neither guilty of non-disclosure or dissipation of assets. She said it was an impossible task to get to the bottom of the situation, that there was often a missing link, that she thought she would never get to the bottom of it and that tracing assets would be impossible. She maintained that she believed him to have undisclosed assets and that his lifestyle was inconsistent with him having no other assets. She rejected his contention that his lap-top had given her access to all of his records and if there was anything to see she would have seen it.

She had some recall of the Husband’s business activities prior to their separation and recalled meeting clients, including Zambian clients of the Husbands, having dinner with them and attending Arlingtons’ marketing social events like golf days but she had no direct recollection of Mr Shamutete or Mr Mutati. She was able to recall some of the high net worth clients the Husband or the firm acted for which included film stars, and well known entrepreneurs in the Indian community. He was away on business frequently sometimes two or three times a month and worked six days a week frequently late into the evening at the office.

In the main, I thought the Wife was doing her best to give an accurate account and she sought to answer questions rather than to evade or obscure. However, some aspects of her evidence demonstrated a tendency both to exaggerate but also to interpret documents or other evidence in a way which was consistent only with her approach when there were other possible interpretations. Both are understandable in the context of the struggle she has endured to get to this point and the disappointments and set-backs along the way, but it does mean that one cannot accept all of her evidence as being accurate, reliable and credible. One of the main points in dispute was whether the Husband had said to her shortly after the separation that he was worth £10m. Her account of how this came about was very unclear and in earlier evidence she had said he was worth £5m. I could see that there is a possibility that a Husband in a state of guilt following the discovery of an affair might seek to reassure an angry Wife or to seek forgiveness in this way, but I do not think this occurred in anything like the way she described and that this was a lie at the time, although over the intervening decades, she may have come to believe something like that was said. Apart from anything else, the Husband has so little conscience, I cannot see him making such a declaration even in the crucible of his affair being discovered.

In her first Form E [1B-608] she said:

On the other hand, other aspects of her narrative would accord with what the evidence now establishes to be the case:

A particular source of contention for the Husband was how his father came to make the affidavit of March 2007 which formed the basis of the set-aside decision. The Wife explained in some detail, and I think broadly accurately, how she had initially gone to India in April 2004 and met with the Husband’s father and with his lawyer and he had agreed to help but had withdrawn shortly before the FDR and that behind the father’s withdrawal had been collusion between the Husband and the father’s lawyer, Mr Siddique.Her evidence was that the Husband’s father had subsequently thought again and that although the affidavit was typed by her it was her father-in-law’s evidence and his documents that he produced. She said that he had come to distrust his former lawyer and believed that the Husband had paid him off.

The Wife’s evidence as to her financial resources and needs is comparatively straightforward. Her most recent Form E demonstrates that:

The Husband’s evidence is contained within the following:

The Husband has also produced additional bundles of documents BG1, BG2, BG3 and BG4 (not admitted) as well as his replies to questionnaires. He also relied on his Grounds of Appeal against the Confiscation Order [BG1-95] and has produced Opening and Closing documents and schedules. He has represented himself.

His last Form E shows his financial position as follows:

The main focus of his evidence was to be on what the matrimonial assets were as at separation, whether any current assets had roots in the marriage and whether any current assets were owned by third parties primarily Mr Shamutete, Mr Mutati and Castlegrove/Sunfor. Perhaps inevitably his evidence tended also towards denying some of the conclusions of HHJ Tomlinson as to his beneficial ownership of assets, but he also spent some time denying his guilt of the crimes he had been convicted of and even those he had pleaded guilty to. He also denied that the admissions he made in his Section 17 POCA Statement in the Confiscation Proceedings were accurate – although this was less of a surprise as he had previously departed from them during the hearing before HHJ Tomlinson. His explanation for pleading guilty was that he had been told he would receive no more than a 12-month sentence and in respect of his admission of ownership he said (at least for Bilt Finance) that he wanted to make sure his fiancée was released from investigation. His Section 17 statement admitted that he was the beneficial owner of:

The Husband gave evidence over the course of four days. He was in the main calm and polite throughout. He became agitated only on occasions; more so when being challenged by Mr Kinnear on matters which might have had a bearing on the Confiscation Order and his appeal. His grasp of the documentation was remarkable even for a man who has not worked for the last 17 years and has been immersed in the paperwork. He was very organised in his presentation of his documents and adept at marshalling both his facts and arguments. He produced very considerable quantities of documents much of which was unexplored in evidence and some of which raised as many questions as they answered. Why documents referred to transfers of £1m in relation to Prime Shield Trust or a transfer to an unidentified Barings Bank account for unspecified sum or emails for IMM asking where to send $130,521 and £630,000 and who the ultimate beneficiary was to be remain unclear. I acknowledge that given his evidence has to refer back over 30 years and that the critical period of 1995-2008 is now between 30 -17 years ago and thus the possibility of innocent error and memory creep may be present. He had thought through and prepared for most eventualities and so very often had answers for difficult questions. Not all the time though – when he had either not anticipated a question, or a document presented him with an unexpected situation or was in effect unanswerable. His pace of speech, vocabulary, intonation, and his body language presented him as a competent, sincere, knowledgeable, consummate professional. It was easy to imagine would be clients or clients and fellow professionals instinctively feeling he was a man they could trust.

The content of many of his answers made clear his expertise in both complex investments and capital raising and the finer details of offshore structures designed to promote confidentiality or tax efficiency or darker purposes. He is clearly both highly knowledgeable and creative in his ability to devise structures to suit his or his clients’ needs. He also demonstrated considerable knowledge of investment strategies and fund raising. His evidence about Mr Shamutete and his dealings with him over the years supported the conclusion that at some stage this was a substantial and genuine relationship but not simply built on the provision of legal services to him and his company but more particularly built around mutual business ventures and investment and financial management. He is also clearly able to spot an opportunity which his investment activities in relation to the Odessa Management Ltd funds shows but which the 2004 sale of Sydney Street would also seem to illustrate. The totality of the documentation suggests that the 2001 transfer, although hard to understand, did not deprive Mr Almquist of the property. However, when it became necessary to sell the property to release funds to provide for his living expenses, the Husband spotted an opportunity to acquire the property. The documents show that of the eventual sale price of £1.452m that £504,000 was retained by the purchaser in respect of tax liabilities. Thus, Fougeres Trust, or rather Castlegrove [see Deed at BG1-2812] actually acquired a property worth £1.452m for £956,000. It is not clear from the documents whether the tax liabilities were ever settled although the Husband says there was lengthy litigation which ended in 2009 but what the outcome was in terms of any tax paid is not clear. Thus, even if Castlegrove paid the tax they had use of up to £504,000 for some 5 additional years.

His presentation of his arguments (in evidence and in submissions) was wholly subjective, almost entirely incapable of factoring in any contrary fact or point of view and dogmatic to a degree. If there was a ‘lawyers’ point’ to be taken, he would take it. No point was left unmade – however bad it was. He utilises every legal avenue open to him; if you can do it, why should you not is his approach which seems to be irrespective of the merits of doing so. This in one sense illustrates how he is a speculator – if there is a chance of achieving a goal even if the prospects appear almost nil it is worth a whirl. He spent some time attempting to demonstrate that at age 60 and with no training contract completed that I should conclude that the Wife had a substantial earning capacity. He relied on the fact that only 1 paragraph of the Consent Order had been set aside maintaining all else was still valid despite Moylan J having made clear in his judgment that the order remained intact only for technical purposes. Despite the findings of Moylan J and HHJ Tomlinson he was insistent that his disclosure in 2002-2004 was accurate and that there were no undisclosed assets. He was adamant that the Wife had received the lion’s share of the assets and the 2004 order should be upheld in its entirety. Notwithstanding his conviction by a jury and his guilty pleas, he maintains he is innocent, that the transactions were legitimate, that he was the victim of police misconduct and cover up by bankers/corporate trustees, that his lawyers and he were not ready for the second indictment and that he pleaded guilty by duress of circumstance and only to secure a lighter sentence, that his admissions in his Section 17 statement were wrong [1B-163] and that HHJ Tomlinson’s conclusions were wrong and would be shown to be so on appeal. His assertion that if assets belonged to him, he would admit it was risible when he went onto to say that even if the Court of Appeal agreed with HHJ Tomlinson he would not accept he was the owner.

He maintained that in fighting the Confiscation Order and in fighting this case that he wanted the facts to be upheld; i.e., that the assets said to be his were third parties. He said he was not being threatened, he understood there was no gain to himself -unless his appeal succeeded - and that he had no financial motivation. Given the level of dishonesty he has been found to have perpetrated and the manipulation of those close to him, the idea that he is doing what he is doing in the interests of others rather than his own self-interest is hard to swallow. However, this is an aspect of his character which permits him to distort the truth to suit his agenda. As with his submissions about the outcome of the set aside being limited to 1 paragraph, so he would distort the findings of HHJ Tomlinson so that he found that all the assets were the proceeds of crime – he only did so by application of the statutory, assumptions – and that the Wife had conceded in the Supreme Court that she would not seek an order in respect of any tainted asset, and she was now acting in breach of that Supreme Court concession.

His approach to almost any question was that a document provided the answer; if it was in black and white then it must be true. Anything which contradicted the written word was suspect and his approach to the determination of the case in general was that he had produced the documentation that proved his case. He challenged counsel “If the document doesn’t support it, don’t say it”. This ran into obvious difficulties when there were documents which were mutually inconsistent (for example Castlegrove documents dated the same day which say he is the beneficial owner on one whilst the other says Rekha Yadav is) with each other and he struggled mentally to accommodate this; even more so the possibility that witness testimony might be permitted to contradict the written word. His attitude to documents was also shown to be manifestly contradictory as he admitted signing bank IRS declarations which on his case were false – but this perhaps was an insight into the conclusion that for the Husband documents are there for – indeed can be created for - whatever purpose you want them to be and this can be to support a truth or to hide a lie. It was further illustrated when the documents recorded him as the beneficial owner of Crest High, but he maintained Mr Okoloko was the true owner and when he accepted that the Land Registry title wrongly identifies Fougeres as the current owner of 88 Sydney Street when he maintained in evidence it passed to Castlegrove formally in 2012/13. Whether this approach to the inviolability of documents is part of his professional make up and underpins his passion for complex documented structures or whether it is an ex post facto position adopted as a defensive strategy is not entirely clear to me. My sense of the Husband is that he revels in the power and opportunity that documentation can deliver to obscure, to manipulate, to further one’s goals. The net effect of his evidence in relation to documents was it was clear he had the means to ensure that documents said whatever he wanted them to show on the record, whatever the real truth was and that the processes in place in multiple jurisdictions at that time were such that this was possible.

His approach to any witness who said anything which was contradictory to his account was that they were motivated by bad faith:

When he was faced with questions to which he could not answer with documentation he was either obstructive, evasive or creative. Occasionally, he was stumped. At no time did he concede a point – the furthest he went was to say he could not explain a document [1C-193]. He was particularly reluctant to engage with some of the questions Mr Kinnear asked although in the main the questions were relevant to the issues in this case. Only on rare occasions did it seem to me that Mr Kinnear had strayed more into Confiscation Order territory than financial remedy territory. The Husband refused to answer some questions and I warned him about the inferences that might be drawn. A few samples (of many) suffice to illustrate the Husband’s attitude to answering questions:

He was often inconsistent in his evidence; saying he and his mother were equal shareholders in Slavonian Finance but then saying later that Rekha had a share; that he was the beneficial owner of Crest High and then that he wasn’t but that Mr Okoloko was; that he put the Merrill Lynch documents in the void because he feared a burglary or that he couldn’t explain why he put them there and then saying they were all copied in the Arlingtons Sharmas files; he borrowed money from his sister Rekha (FA Cup Final tickets etc) but he had no debts in his Form E; Mr Shamutete was sent the bank statements/ he wasn’t sent them but could review them when he visited London; although they hadn’t sent statements for other accounts he did send statements to Mr Shamutete / Mr Mutati for Pictet and Cie but he hadn’t produced them in these proceedings; the fee paid to Castlegrove in 2006 was for the Ndola transaction although it had failed in 2000/02; that he was entitled to recover consultancy fees from the Merrill Lynch Parabola account by making cash withdrawals in Las Vegas but he accepted there would be no invoice found for it.

He asserted that he had earned nothing for 17 years and apart from a compensation payment for a period of unlawful detention he had received no monies and had lived off the generosity of others. His gifts to his children of lap-tops and birthday parties were, he said, funded by others.

When speaking of the events of the last 17 odd years and their consequences he displayed a considerable degree of self-pity and egocentricity. Although he was able to say that others had endured pain, his main focus was on himself and to the extent that his emotions were on display or engaged with what had happened, they were about him; the injustice of his convictions, the pain of prison and probation and the misconduct of so many of the witnesses against him in particular the Wife. This apparent inability to really empathise with others might explain his apparent ability to manipulate and exploit even his closest family members; if he is only able to see events from his own perspective and is blind to the consequences or impact on others, his use of even his son Devan to pursue his dishonest goals becomes more understandable.

I shall refer to some of his S.25 statement (1-621) which addresses the issues between himself and the Wife. Ironically, it blisteringly criticises the Wife’s s.25 statement for not complying with guidance on such statements (I do not consider it to substantially offend) but goes on to comprehensively breach that guidance and launches a wide-ranging personal attack on the wife which goes so far beyond any response to her that it can only be to distract the court from its task and/or demonstrates a hatred bordering on pathological for the Wife. His contempt for her is palpable and he blames her for his and the family’s devastation.

He says of the Wife:

His lengthy attacks on the CPS and their approach ignores the fact that he has been convicted of various offences by a jury, has pleaded Guilty to other offences and has been through an extremely lengthy fact finding process in the Confiscation proceedings which has resulted in findings being made about his beneficial ownership of assets (after taking into account evidence and submissions by some third parties) and that his proceeds of crime were assessed (using statutory assumptions) at £42m odd and realisable assets have been determined at £27m odd. He says:

“The judges two rulings are inexplicable appearing to defy logic, law and the evidence presented. The decisions raised serious questions about the application of legal principles in this case. Any judicial review of the rulings will expose significant inconsistencies that render the findings untenable”

The application for permission to appeal was refused on paper by Wall J. What the outcome of the renewed application for permission to appeal will be remains to be determined.

It is not clear from this statement whether he accepted his guilt or not although he made clearer in his oral evidence that he does not and regards himself as the victim of a serious miscarriage of justice arising (I think) from police corruption or possibly incompetence. This finds a symmetry with his approach in the confiscation order hearing which HHJ Tomlinson described as saying he was innocent. He says:

He goes on to say:

He says:

I have referred to much of his evidence about the question of the date of acquisition of assets and third-party interests in the detailed Chronology which forms part of this judgment and that also contains reference to other aspects of his evidence contained in other documents.

He says (1-632) no evidence of hidden assets has been found despite the most extensive searches. Only if one can say they are not hidden because they have been found could this be correct. The source of the funds paid into the Odessa accounts which formed part of the basis for set-aside in itself established hidden assets and the revelation of the Husband’s interest in all the assets uncovered in the criminal investigation (including Merrill Lynch’s evidence of his beneficial ownership of the Parabola accounts) all show that as of 2004 the Husband had ‘hidden’ assets. He asserts:

He claims impecuniosity and no earning capacity whilst asserting that the Wife has a significant earning capacity and has fraudulently claimed benefits (1-632). If she has fraudulently claimed benefits and has been less than completely frank about how she has deployed her assets they are a drop in the ocean as compared to the Husband’s, although I conclude she is right when she says that her capital was left out of account by the LAA as it was intended for a house purchase.

The Husband says:

His case against the Wife (1B-37) suggests that he agrees with HHJ Tomlinson’s finding on benefit from crime and thus that all the assets are tainted so as to refute the Wife’s claim and to attack her credibility for now seeking a ‘tainted’ asset when she said to the UKSC she would not. Of course, the simple solution to this apparent contradiction is that some of the taint arises from the application of assumptions against the Husband which do not bite against the Wife and that taint doesn’t necessarily involve the entirety of an asset (from her standpoint anyway).

He says that the Wife is responsible for his estrangement from his children – not his own actions.

In his evidence in response to the Wife’s claim, he produced Exhibit BG1 which contained 3936 pages. This contained large tranches of material which sought to refute various of the Wife’s assertions about the history of their marriage – for instance large numbers of documents relating to the refurbishment of Highlander which showed the Husband was in communication with the builders and wrote letters aimed at showing the Wife did not manage the works. In some areas this documentation did tend to support aspects of his case that the Wife was exaggerating, and it did tend to support his case that he was doing genuine legal work for clients including working for Mr Shamutete and Mr Mutati. However, it also included material which either was irrelevant or unnecessary but tended to obscure or overwhelm but also material which undermined his own case – for instance Rekha’s report on Fazmac which confirmed he was a co-owner and so proved the case of non-disclosure against him from his original Form E.

I make reference to all of these matters not because they are all directly relevant to the matters in dispute but because they add further to the cloud over the Husband’s credibility, honesty, reliability and perspective that when approaching any matter of fact which requires resolution one has to bear in mind that the Husband is capable of the most breath-taking dishonesty, shape-shifting assertions, inability to accept any personal responsibility, propensity to forge documentation and complete lack of objectivity that any assertion he makes which is not supported by contemporary and verifiably genuine documentation has to be regarded as suspect if it comes into conflict with an alternative account or inference.

He was a profoundly dishonest and evasive witness whose account could not be relied on save where supported by contemporaneous documentary evidence from a source independent of the Husband himself. That is not to say he lied on every issue or that his convictions and proven lies lead me to conclude I should reject his evidence in its entirety and simply accept any alternative. However, the overwhelming weight of the documentary evidence, taken together with the evidence of others (whether given orally and tested or in writing), findings made by other courts including HHJ Tomlinson, inferences which can legitimately be drawn from documents or combinations of documents and testimony all point to the conclusion that the Husband is thoroughly and pervasively dishonest and that the broad thrust of his account of being a hard-working, family orientated and impecunious man who has been ill-used by others and subject to a terrible injustice by the state and by the Wife is so very far from the truth that it is hard to comprehend how he can put it forward.

The reality of the Husband is that he is:

His main statement is at 1A-155. I take into account that when he gave it in 2016, he was 70 years of age and that he was having to go back in history some 40 years. However, at face value the issue could not be of more importance in terms of financial security as he seeks to claim the residue of assets which amounted to $17m in 1999-2001. He relies primarily on the evidence that was placed before HHJ Tomlinson which takes the form of an Exhibit to his statement (it is dated 29 January 2016 when Mr Shamutete was 70). He takes issue with HHJ Tomlinson’s conclusions that Parabola was beneficially owned by the Husband and that it was not funded from his legitimately earned resources. He did not give oral evidence to HHJ Tomlinson. He has not given oral evidence to me.

Much of the material in his statement and the documents he refers to and his accounts are incorporated within the Chronology. His case is that (in so far as assets are claimed by the Wife in which he says he has an interest).

His narrative statement from 2016 which in itself is based on a statement he gave in Zambia in May 2012 sets out a little more detail of the background to his relationship with the Husband and his investment history with him. He is a mining engineer by profession and was the Chief Executive of Zambia Consolidated Copper Mines until his retirement in 2000. He thinks he met the Husband at a social event, possibly when he visited London for the annual meeting of The London Metal Exchange. He says that the Husband told him that his firm would be able to assist him in “establishing” an offshore corporate structure which he could use for holding “some” of his assets outside Zambia in a way which was secure and confidential. Thereafter, the Husband set up the structures (see the chronology) and he transferred funds from his Citibank account into the Schroders bank account in the names of Enzo International Ltd and Parabola. He says the funds which were paid into the Schroders Enzo account were subsequently transferred to the Parabola account and that he forgot about the existence of Enzo when originally spoken to by police in 2012. This is something of a surprise given that Enzo subsequently had very significant sums pass through its IMM accounts which funded both the Merrill Lynch Parabola account but which also contained very substantial funds at later dates. He explains how the Parabola account with Schroders was used to pay personal and business expenses from time to time including the use of an AMEX and a Visa card. All bank statements and other documents relating to the company structures were to be held at the Husband’s London offices. He says he later established the Merrill Lynch account for Parabola in New York and that $2 million was paid into this. His initial Zambian statement recorded that this was paid by Mr Rozan, but he says this was incorrect, although Mr Rozan was the source of the monies. In fact, documents show that the Merrill Lynch account was funded through the IMM Enzo account. He says he also established a further account in the name of Parabola with BNP, and this was funded in the sum of $6,876,666 which derive from the gemstone business he conducted in partnership with Mr Rozan. He confirms that his initial $1.7m had grown to $17m through gemstone trading. These funds subsequently passed onto UBP and ultimately to Pictet and Cie.

He says that it appeared to him that the operating arrangements were all going well, and this was why he agreed to transfer the funds from UBP to Pictet and Cie in 2005. He says he retained no records at all. From then until 2008 it appears nothing of note occurred; indeed, he makes no reference to receiving any information about his investments at all during this period. When visited by police he spoke to the Husband and was told that his Pictet and Cie account was in the name of Westlake and that he should not worry. He says he took the Husband at his word and it was only in 2009 when contacted by Mr Patel of Imani Securities that he took further action. He had done business with Imani and it was then he became aware of the Husband’s possible criminal conduct. He then learned of his conviction and was later contacted by the Husband’s sister who assured him that his monies were safe and would in due course be returned to him. In May 2011 he instructed English solicitors who began to investigate. They notified claims to the CPS against the Parabola Schroders and Merrill Lynch accounts. On 13 January 2015 Mr Shamutete started civil proceedings against the Husband personally; not it seems against the firm of Arlingtons Sharmas and nor does it seem any complaint to the SRA or any claim on Arlingtons Sharmas’ insurance has been made. They also made enquiries in Singapore and received documents from Pictet and Cie which showed payments made which were not authorised by Mr Shamutete.

Mr Shamutete deals with some payments made into the Parabola Schroders account which were linked to the Bombardier purchase and he denies any knowledge of this; in fact, the payments into that account appear to have left as a single payment 2 months later.

Mr Shamutete did not seek to give oral evidence. His written statements are of limited content. I appreciate he is now in his late 70’s. He did not give evidence in the Crown Court. No explanation has been given for not giving evidence, although Mr Christopher floated some possibilities in submissions.

His evidence is very limited in its detail and leaves a raft of questions unanswered. There has been no opportunity to test his account or to seek clarification. In particular his statement for these proceedings does not take the opportunity to address any of the issues identified in the judgment of HHJ Tomlinson which caused him to reject his case that he had provided the initial funds for the Parabola/Enzo investments. He says at # 7 of his statement “if the starting point in these proceedings were to be HHJ Tomlinson’s ruling, very significant unfairness to me would result because, among other things I understand will be referred to in submissions, that ruling was obtained on the basis of evidence which I would wish to submit does not support HHJ Tomlinson’s rulings, but to which I am unable to now refer.” It is true that MLA material from Switzerland, Hong Kong and Singapore has not been deployed to its full extent in these proceedings because consent has not been given and so only material which has been obtained through other sources from those jurisdictions can be relied on. However, all the documentation that he had about the seedcorn prior to 1999 would be available to him and almost none has been produced by him either in this court or in the Confiscation Order proceedings and his narrative accounts are essentially the same. However, even allowing for the unavailability of some MLA material, what he says in narrative terms about how he came to acquire the ‘seedcorn’ sums initially, how his relationship with the Husband evolved, their dealings in the early years and in particular their dealings from 2005 – 2010 is cursory in the extreme. It seems from his statement that for a period of 5 years he had almost no engagement with his investments, made no call for funds from them for himself and has no records of any dealings with the Husband over them. Given it was said in documents setting up the BNP accounts that he was interested in safe and modest growth over a 3-5 year period and that he operated in mining, trading and was a majority shareholder in Zambian Consolidation Co [1B-1383] this hands off attitude seems very hard to understand. The disclosure to BNP said his wealth had accrued from selling shares in ‘ZCCH’ and other companies in Zambia and from profits accrual [1B-1385] which is at odds with what was put forward to HHJ Tomlinson. No evidence as to the source of funds has been put forward – other than the limited reference to other entities which funded some of Enzo and those appear to be of a similar nature to the offshore entities which Mr Shamutete was supposedly going to the Husband to create.

In relation to the central purpose of his intervention – namely to lay claim to the funds in the Parabola/Enzo accounts, he said in his statement [1A-167]:

One might have expected him to have scoured his memory and his documentary records to put together a far more detailed and documented history of how he generated the seedcorn and documentary evidence demonstrating that in Citibank in Switzerland he had held sums which reflected the $17m he said he provided. I made provision in the directions for the intervenors to be able to produce any material they wished to rely on – including material which they could have obtained independently of MLA processes, but which might be its duplicate.

In fact, Mr Shamutete has been able to obtain material independently of the MLA material from applications he has made in Singapore. If he had invested $17m odd in Citibank – or indeed any other institution – and that it was the seedcorn which supports him being the sole beneficial owner of Parabola and the accounts associated with it is hard to understand why he should not have been able to obtain other material. In any event, as he himself acknowledges, he could have instructed lawyers in each jurisdiction to obtain if (for reasons unknown) the institutions failed to provide it to a person who was identified by their records as the beneficial owner. Given his case is that HHJ Tomlinson failed to give due consideration to the records which had been obtained by MLA, it seems curious that he should not have sought to obtain it – and he has been aware of these proceedings and the issue of obtaining evidence through independent routes for many months. None which sheds any light on the provenance of the funds pre 1999 has been produced. No evidence has been adduced which explains why that has not been done or is not possible.

The main issue between the Husband and Mr Shamutete was of course whether the Husband had misappropriated the Parabola UBP funds when transferring them to Pictet. The trail of funds from their emergence is well illustrated in the Chart produced by Mr Christopher and there is (as was identified by HHJ Tomlinson) no significant dispute about their movement between 1999-2006 when they arrived in Enzo Schroder and onward to Parabola Schroder, Enzo IMM and onward to Merrill Lynch and BNP Parabola and onward to UBP and then Pictet and Cie K888156 (Gohil) and D888296 Westlake. After their arrival in Westlake, the trail becomes somewhat less distinct and funds from the Husband’s criminality begin to mingle. Although Mr Shamutete explained and produced documents which showed how funds from BNP and UBP were applied for his personal benefit and said that he had meetings with the Husband that reviewed his investments up until the transfer to Pictet and Cie, thereafter he is silent which begs a whole series of questions about what reviews were taking place, what information he was being provided with, what questions he was asking if none was being provided and why there was this change in how the monies were handled and his engagement with them. It is correct that the evidence supports his case [#23] that Parabola funds were paid to Imani Securities and he says this was as a result of business dealings with Imani. The evidence before HHJ Tomlinson was that Mr Shamutete placed investments with Imani. The difference may not matter. However, there is still a significant evidential void crying out for explanation as to what happened after November 2005 in relation to the Pictet and Cie monies of Mr Shamutete and indeed the Merrill Lynch monies.

Another dispute emerged in the course of the Husband’s evidence which was whether Mr Shamutete had ever been involved in the Wings Aviation venture which involved the Bombardier airplane purchase. This arose as the Husband suggested some of the funds which were paid out of the Pictet and Cie Parabola/Miramar funds were paid as commission in relation to Mr Shamutete’s involvement in the Wings deal. The Husband sought to adduce a further significant bundle of evidence which he said showed this involvement. I declined to permit him to adduce that evidence and indicated that I could deal with the issue on the basis of the evidence I had heard, and Mr Shamutete was not giving evidence to contradict his account. Ultimately, it is not an issue which needs to be determined as the issue of how the Husband dealt with the funds after 2005 and whether they were beneficially owned by him or Mr Shamutete and Mr Mutati falls to be decided on other evidence. It is clear that the Husband continued to make payments out of the funds on Mr Shamutete’s behalf but also to treat them as his own.

Whilst Mr Shamutete’s evidence aligns with some of the documentation and so supports the conclusion that he is a real person who had dealings with the Husband which were genuine business transactions there are so many unanswered questions which arise in relation to the seedcorn for his investments and the provenance and his interactions with the Husband over the years in particular after the Pictet and Cie transfers that his election not to give evidence and to offer no explanation for that when even in this financial remedy arena some £5-7m odd is in play (the Parabola Schroders is not) inevitably invites the submissions that he is hiding something and is afraid that in giving evidence it will unpick some of the narrative that can stand with the documents. I have considered the possibility that he might not want to give evidence as doing so would potentially expose to publicity the fact that he is a wealthy man and that might have consequences. However, these proceedings are not taking place in open court and so the court retains the discretion to limit reporting. With so many questions arising and so much hanging on an explanation for the origin of the funds which HHJ Tomlinson found against Mr Shamutete on, it seems the only reasonable inference to him not giving evidence is that his evidence would not withstand scrutiny and that leads on to what inferences can be drawn as to what would be revealed were it to be tested. I shall return to this.

His statement at 1A-176 and his statement in the Confiscation Order proceedings [1A-184] are, like Mr Shamutete, limited in being directed mainly at an analysis of the documents and giving only relatively little detail about the arrangements with the Husband. Indeed, their cases have a symmetry that is notable. Much of his evidence is also incorporated into the Chronology. His case is that:

Like Mr Shamutete, it is said the initial funds came from Citibank [1B-1385], although HHJ Tomlinson referred to Mr Mutati’s evidence being that the monies were paid from Idrissa Sengor and yet other documents [1B-1394] suggest that funds came from Chase Manhattan bank. He has not produced any document to confirm the source of funds – the best account is contained in HHJ Tomlinson’s judgment. There is no explanation for why his contract with Mr Senghor should not be available (it is referred to) or why the Chase Manhattan or Citibank records could not be obtained. HHJ Tomlinson refers to Mr Mutati’s evidence of where the emeralds came from as being opaque and possibly supporting a conclusion that their activities were unlawful. Like Mr Shamutete he gives no reason for not giving evidence. Evidence could be given remotely if he were unable to attend in person for health reasons – although if that were the issue one would expect him to have outlined the evidence. If he were too ill to give any evidence that could be explained. Even were he embarrassed at the possibility of publicity about his wealth or that publicity might expose he or his family to danger that could be explained, and publicity could be controlled by the court in any event. I exclude these as possibilities, given they have not been put forward with evidence when they could easily have been.

The most likely explanation for their non-attendance and unwillingness to put themselves in a position where they would be asked to answer some of the very many questions is that they are unable to provide satisfactory answers and in doing so would potentially expose themselves to something worse than the embarrassment of being exposed as dishonest. Given there are very significant sums at stake, in terms of the proportion of their wealth, the reason for their non-attendance is most likely that exposure would lead to something worse than simple loss of the funds and that most likely means exposure of illegality of some sort either in the generation of funds or in acting together with the Husband in some illegality in how the funds and structures were set up or in them acting in concert later to maintain the funds are theirs.

The Husband’s father was joined as 2^nd Respondent after the 2004 Consent Order was set aside. He had of course given evidence by video link to Moylan J and his evidence was integral to the set aside and to the UKSC upholding Moylan J’s decision. His Affidavit of March 2007 has been the subject of severe criticism by the Husband. As I have set out in my account of the Wife’s evidence, I accept her account of how the Affidavit was obtained and on the face of it, it is undoubtedly an account which the second respondent adhered to both at the time it was signed and before Moylan J when he gave evidence over 5 years later. The affidavit of Babulal Ramji Gohil [1B-1290] is a long and complex document. It bears his signature on every page with additional signatures where he has made amendments to the typed script. That being so, I am satisfied that this was an affidavit which the Husband’s father wished to put forward as his own and that he had considered its contents carefully and was satisfied that it was the truth as he saw it. Moylan J heard him give evidence and clearly drew a distinction between the credibility of the Husband on which he made various adverse comments and the credibility of the Husband’s father which he accepted at face value. The statement contains a degree of dissatisfaction or ill will towards his son and he frankly acknowledges this and one can readily see the atmosphere between a proud and traditional father and his independent and disrespectful son. To the extent that the affidavit displays the sense of ill will, it must be borne in mind that Babulal Gohil was actively seeking to support his former daughter in law.

It is a narrative full of detail. His letter of June 2007 confirmed he had made a payment to IMM Hempton International of £15,700 being the proceeds of sale of the Husband’s car. His Affidavit says in short:

The Second Respondent died in 2018. That his will left his share in Highlander to the Wife and to his 2 grandsons is an indication of how strongly he felt – perhaps at his son and his family’s treatment of him but also probably at how unfairly he thought the Wife and the children had been treated. His hostility – perhaps a combination of disappointment, shame and anger at his son’s behaviour – is all too obvious but the substance of his evidence has a ring of truth to it which importantly is corroborated both by the documents he produced but also by much of the other evidence which confirm the Husband’s propensity to dishonesty and manipulation. I accept his evidence at face value.

The Husband’s mother had been the Third Respondent since soon after Moylan J set aside the 2004 Consent Order; the deceased 2^nd Respondent and Odessa Management Limited were also Respondents. During preliminary hearings, the Third Respondent had attended, assisted by her daughter, Sima Sud. A Position Statement had been filed by her prior to the hearing. She maintained that the sums in Slavonian Finance were hers and she relied on the Wife’s concessions in the 2004 order in this regard; repeating the claim made by the Husband that that part of the order had not been set aside by Moylan J. Her evidence is highly critical of the Wife – accusing her of unjustifiably commencing litigation in probate and the Land Registry; both of which the Wife won and in which the Third Respondent’s evidence was rejected. She relied on her ill health and elected not to attend the final hearing or to give evidence. She relied on similar reasons for not attending the hearing in 2012 before Moylan J [1-688 #53] She asked that Sima Sud attend which she did. Her statement [2-196] is written in legal language akin to a Skeleton Argument rather than a statement of fact and contains arguments as to how the court should interpret the documentary evidence. It is mainly a narrative criticism of the reasoning of HHJ Tomlinson. Given the other evidence about her and her Husband and other conclusions judges have reached about her capability it seems likely that the statement is a product of one of her children’s efforts more than her own. It contains little to no evidence of fact. She maintains that she is entitled to Highlander and to 50% of the sums in the Slavonian Finance accounts and relies on the documentation showing a transfer from the Odessa accounts to Slavonian Finance as the basis for this and the fact that bank documentation identifies her as a joint beneficial owner. Although she relies on documents referring to the source of funds as personal savings, she gives no evidence as to how those savings were acquired and accepts she had nothing to do with the account until after the Husband and Wife separated – even after the 2^nd Respondent left for India. She makes no effort to engage with the evidence of her deceased Husband and does not challenge any of the detail of his account but simply makes ‘submission’ points about it. She challenges the conclusion of HHJ Tomlinson that the husband was the beneficial owner of Slavonian Finance and that the funds were tainted. She maintains Castlegrove is the beneficial owner of Raj Classic although she jointly holds the legal title with the Husband – although for reasons which are not obvious, she also criticises the conclusion of HHJ Tomlinson in relation to Raj Classic. I am satisfied that the majority of the contents of the statement are a product of the Husband’s input probably together with Sima Sud. In terms of its content as evidence she could give as a witness of fact, it is of almost no value and its significance is probably greater in terms of what it does not seek to do – in particular, offering any alternative version of the evidence of the 2^nd Respondent - than in what it does. Given her age and her limited knowledge of the finances of the family, her non-attendance is of little real significance. The fact she offers no challenge to the evidence of her deceased Husband is. The evidence of the Third Respondent has not been tested but has been considered by various courts before me not to be reliable. Her assertion to the Land Registry in 2006 that she had been left penniless in 2001/2002 was wholly contradicted by the Odessa funds evidence (she receiving £228k in 2002). DM Lampert was very dubious about the reliability and indeed content of her evidence and who had authored it given the unlikelihood it was her.

Rakesh Shetty, a senior executive filed a statement on behalf of Castlegrove Inc and Sunfor Commercial Inc dated 24 November 2024 [1A-214]. It consists of 25 pages which is primarily (akin to the Third Respondent’s statement) a critique of the judgment of HHJ Tomlinson. It is not clear what Mr Shetty’s position is – he does not (in his statement) appear to be a director of either Castlegrove or Sunfor. Mr Shetty identified that Mr Juggapah was a director of Sunfor Commercial Inc. However, in the Opening Statement for Castlegrove Inc, Mr Juggapah says he is a director of Castlegrove. He also filed a Position Statement dated 23 September 2024 [1-71] in which he said he was a duly authorised director of Castlegrove. In that Position Statement, it was asserted that the shareholders and directors of Castlegrove had remained consistent throughout its existence and that the Husband had no connection with it. He confirmed that the company was seeking to challenge the conclusions of HHJ Tomlinson that Castlegrove and Sunfor were in fact the assets of the Husband. The statement is filed in support of Castlegrove’s absolute claims over:

Given the statement is in large measure a legal argument or critique of the Confiscation order judgment based on his own understanding of legal propositions rather than a statement of fact, I do not propose to set it out at length but shall summarise some of its essential points:

From paragraph 21 in tabular form, Mr Shetty presents the documentary records which he asserts prove that Castlegrove is a separate legal entity and that Rekha Yadav is the beneficial owner of the assets. The documents relating to the purchase of 88 Sydney Street are presented. These documents are considered within the Chronology. Taken at face value they do as they say they do. They all appear (it seems) within BG1.

The assertion that the shareholders and directors of Castlegrove have remained consistent does not bear scrutiny; the list of shareholders at 1B-1027/8 shows multiple changes including to and from Rekha Yadav and the evidence of Mr Shetty provides no narrative as to how Castlegrove Inc generated its income and no explanation for why and for what consideration the changes in shareholders occurred in relation to an entity which owned assets worth several million dollars. I note that the current shareholder KGBFYOC Foundation is registered as the same address as Sunfor and Castlegrove are now – namely in Arun Chambers, Mumbai. This absence of evidence in relation to how Castlegrove generated its assets and why Rekha Yadav transferred ownership – seemingly for no consideration – is a very significant feature in the evaluation of Castlegrove/Sunfor’s case. The fact that both entities also chose not to attend the trial in person or by counsel or to give evidence but simply to attend remotely via Mr Juggapah means that none of those important issues can be explored. Given that Castlegrove and Sunfor both challenge the conclusions of HHJ Tomlinson and assert that he got the evaluation fundamentally wrong; this hearing presented an opportunity for them to present a comprehensive rebuttal of that analysis, but they chose not to do so. Nor, as far as I can tell, did they present any additional material which would answer the questions about how Castlegrove and Rekha Yadav generated their income and thus their assets and demonstrate it was not the Husband who the source as other evidence was strongly suggests. No evidence was put forward explaining why Mr Shetty or Mr Juggapah could not attend in person to give evidence or give evidence remotely. They took the same stance as Mr Shamutete, Mr Mutati, the Third Respondent and Rekha Yadav which was to rely solely on a document trail and not to be prepared to back that up with oral evidence tested by cross-examination. In respect of Mr Shetty and Mr Juggapah as they appear to have no personal interest in the assets and are apparently not linked to any suggested criminality, the most likely reason for their non-attendance is that they would not be able to provide any sensible answer to the questions that would be asked of them and would be at risk of providing evidence which would actually contradict what the documentary record purports to tell. Their evidence would be of little weight anyway given it is not factual, but argument and their assertions based on documents but not backed up by oral evidence in which it could be tested leads me to conclude their evidence is of little weight.

Devan filed a statement dealing with documents he had produced which might have fallen into the category of Imerman documents. His statement explains how he set up an email account so that he could assist his father in communicating in a covert fashion whilst he was in prison. The relevant period of time was early 2015 by which time the Husband’s renewed application for leave to appeal against conviction had been dismissed in July 2014 and the confiscation proceedings would have been progressing. He goes on to explain how the Husband drafted letters for Rekha Yadav to send to the CPS claiming an interest in Raj Classic, 88 Sydney Street and Castlegrove and sets of instructions as to steps that needed to be taken to preserve assets mainly. These documents were both the Husband’s and Devan’s and the evidence of Devan was clearly admissible, and the Husband conceded the documents were not Imerman material. The contents of the documents are contained in the Chronology. Their clear effect is that the Husband was seeking to persuade Rekha Yadav to lay claim to those assets in the confiscation proceedings so that they would be removed from the list of his realisable assets and to preserve them for the future. The Husband did not seek to call Devan to give evidence. Whilst I accept that a possible reason for not wishing to have his son give evidence might have been to save him the pain and stress of doing so, or indeed to save the Husband himself the pain of asking his own son questions which suggested he was lying I think the more likely reason is that the Husband had no effective challenge to that evidence and the suggestion that it was untrue and fabricated by Devan simply untenable. I accept Devan’s written evidence on the documents produced and his interpretation of them at face value.

Mr Wren is a financial investigator employed by the National Crime Agency. He was the lead investigator in one of the linked confiscation cases and had only come to the Gohil confiscation order case in July 2023. He was therefore not steeped in knowledge of and analysis of the documents but rather was only able to produce them and to provide general observations on generic issues across the confiscation order process. He had provided 4 statements:

Although he was called and gave some oral evidence this was limited in its ambit given his role. The Husband found this frustrating although his questions of Mr Wren substantially sought his analysis of what the extensive documentation demonstrated or did not demonstrate, similar to his approach with the Wife. As that analysis was equally capable of being undertaken in submissions, this did not present much of an obstacle. Some of the documentation that was produced by Mr Wren is referred to in the Chronology. Mr Wren did confirm that very extensive investigations had been undertaken into the Husband’s finances, including searches of Arlingtons Sharmas and of electronic devices, but he would not – rightly so in my view – agree with the Husband’s proposition that if there had been anything hidden it would have been discovered. Both Mr Shamutete and Mr Mutati had said that all the bank statements for their accounts were held by Arlingtons Sharmas in England which would have suggested that the Parabola/Miramar Bank Pictet, Schroders, Julius Baer and other accounts held in Switzerland, Singapore and Hong Kong would all have been secured when Arlingtons Sharmas or the Husband’s home was searched which self-evidently it was not. He also was unable to agree that the international banking check system would have identified all material that might have been relevant to the Husband’s assets. Mr Wren sets out in his first statement the basis of the Crown’s case against the Husband in the Confiscation Order and confirmed that the full amount of £27,967,337.48 remained outstanding together with interest which accrues at 8% per annum. By the end of this hearing a date for the hearing of the Husband’s renewed application for PTA against the confiscation order had been set for 27 June 2025. He confirmed that the applications by the sixth seventh and eighth respondents were deemed inadmissible by the Court of Appeal. The following are some salient features of his evidence:

His second statement produced material which emanated from the United States of America who had given consent to use the MLA material. This included Merrill Lynch documents and affidavits of Mr Chaturvedi which are referred to in the Chronology.

His third statement produced material which had become disclosable following Mauritius consenting to the use of MLA material in the financial remedy case.

In his fourth Statement, he produced MLA material from the Isle of Man.

He confirmed that many MLA requests had been made and there was a considerable logistical exercise that had had to be undertaken to remove non-consent MLA material. Requests to Switzerland for MLA consent had still not been made due to the logistical difficulties and that Switzerland was a tough jurisdiction because it required precision. MLA consent was also not yet given by Singapore or Hong Kong. He refuted the suggestion that the Crown had a financial motive in upholding the Confiscation Order explaining that the usual rule where the NCA would receive part of the funds recovered did not apply in this case as the funds would be remitted to Nigeria.

Rekha Yadav. She did not respond to the Confiscation Order direction for her to make disclosure pursuant to S.18 POCA and did not participate in the confiscation order proceedings. Although there were periods when it appeared she might engage in the financial remedy proceedings ultimately she did not do so and orders were made by Mostyn J on 4 May 2017 which provided for her to apply to intervene and to be debarred from asserting any beneficial interest in 88 Sydney Street contrary to that found. Sunfor and Castlegrove were subsequently joined as intervenors and although it is still said (by some) that Rekha Yadav is the ultimate beneficial owner of Castlegrove and 88 Sydney Street she has played no part in these proceedings. The assets which she is said to be (or was said to be) the beneficial owner of are:

The Husband has produced a body of documentation from ECS which appear to confirm that Rekha Yadav was the owner of Castlegrove [i.e. BG3-170] and which contains the document purportedly from ECS which directly contradicts a document dated the same day which is contained within the Isle of Man MLA consent material. Both documents are dated 19 July 2004 and one says the Husband confirmed that he was the beneficial owner and it was used for invoicing for the fund management in respect of various clients [1C-62] and the other [BG3-171] says the Husband confirmed Mrs Yadav was the beneficial owner. In the world of offshore entities, I suppose it is conceivable that both could have been genuine as the Husband could have ‘given’ Castlegrove to his sister a few minutes after the conversation in which he confirmed he was the beneficial owner but the provenance, appearance and apparent inconsistency suggests the more likely explanation is that the document identifying Ms Yadav as the owner is false and that she was a front for the Husband – possibly a willing front but possibly with her identity being used to suit the Husband’s purposes ; he certifying her documents and he having an unlimited power of attorney for Castlegrove [BG3-179/1C-64].

The evidence of Devan Gohil also tends to confirm that Rekha Yadav was not the true beneficial owner of the primary assets; Raj Classic, 88 Sydney Street and Castlegrove but rather that the Husband used her to assist him in administration rather than she operating as a free agent in terms of investing herself or in providing fund management advice. Her advice on the operation of Fazmac in 2001 and the services the Husband was asking her to perform in January 2015, all support the conclusion that whilst a capable individual, she was not on a par with the Husband but rather was acting in a subsidiary capacity as his agent. The suggestion that Rekha Yadav was providing a parallel service to the departments of Schroders etc on fund management advise - the discussions with UBP over the losses sustained show that the banks were doing the advising - is improbable. Devan says that Rekha Yadav had detached herself from the Husband and lived in India in fear of arrest because of her involvement with the Husband and his assets; a realistic fear. Sima Sud’s email identifying that Rekha Yadav deserved 10 Rolexes for all she had done for him also supports the conclusion she was his agent. The content of that letter also suggests that the Husband had a power over his sisters and indeed within the family which the deceased father also infers and that he was able to manipulate them to his ends.

Her HMRC documents confirm modest income when in this country. From 1996-98 she worked with Associated Newspapers and earned a maximum of £18,094. She was then not recorded as earning anything from 1998-2001, a modest sum for Blue Arrow in 2002/3, nothing in 2003-05 and then working for Crown Staff Bureau or the Health Protection Agency from 2005-2010 earning a maximum of £29,672. HMRC then held no employment record for her and this might align with the time when Devan says that she left to reside in India. Nothing in those records suggest that she was a high achiever or high earner in the way that the Husband’s evidence would suggest she must have been. It is of course possible that during the late 90s and early 2000s she was indeed exercising entrepreneurial skills offshore generating the significant sums the Husband suggests she was. What is hard to understand though is that she has never then sought to assert that in any active way still less fight for the supposed fruits of those labours.

No explanation has been given by Rekha Yadav for her non-engagement in the proceedings. The Husband suggests that she has been mentally unwell and hence her transfer of Castlegrove to the third respondent; apparently for no consideration. Given the very significant sums involved and the HMRC records of her modest earnings in recent years and the totality of the evidence which supports her acting as the Husband’s agent, it seems a reasonable inference to draw that she does not regard herself as being the beneficial owner of any of the assets which the Husband says are hers. The totality of the evidence would support the conclusion that she had never been in a position to earn such significant funds that would have enabled her to acquire such assets.

Fortunately, there is relatively little dispute between the parties about the legal framework which should be applied. In so far as there are disputes, they relate more to the interface between the confiscation order regime and the financial remedy regime. The Wife, the Husband and the CPS have all referred extensively to the statutory framework and to the case-law which they rely on in support of their cases but given in the main it is not in dispute I do not consider it appropriate to set out the law in detail but shall attempt to summarise the main principles I am applying in the various fields.

The principal focus of this hearing has been the determination of the factual foundations upon which the evaluation of the Wife’s application for financial remedies rests. I have applied the following framework.

In exercising the court’s powers when making financial remedies orders following divorce proceedings, the starting point is s.25 of the Matrimonial Causes Act 1973. Under s.25(1), the court must have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family, and in particular must have regard to the matters listed in s.25(2) (a) to (h):

“(a)

the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)

the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)

the standard of living enjoyed by the family before the breakdown of the marriage;

(d)

the age of each party to the marriage and the duration of the marriage;

(e)

any physical or mental disability of either of the parties to the marriage;

(f)

the contributions 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;

(g)

the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h)

… the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”

The current approach is governed by two decisions of the House of Lords in White v White[2001] 1 AC 596 (hereafter “White”) and Miller v Miller; McFarlane v McFarlane[2006] 1 FLR 1186 (hereafter “Miller”). It is well established that the court award in cases where the parties resources exceed their needs that the award will be the higher of that reached by the application of the sharing principle and that reached by application of the need principle. Lord Nicholls in White v White[2001] AC 596 at page 605:

“there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. …. [W]hatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties’ contributions. This is implicit in the very language of paragraph (f): ‘the contributions which each … has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family’. If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

For that reason, Lord Nicholls recommended that, when a judge reached the preliminary view that one party should receive a bigger share of the assets than the other, “before reaching a firm conclusion and making an order along these lines, a judge will always be well advised to check his tentative views against the yardstick of equality of division.”

In Miller, Lord Nicholls developed the analysis of fairness as follows (at paragraphs 9 to 16):

“9.

The starting point is surely not controversial. In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights. The financial provision made on divorce by one party for the other, still typically the wife, is not in the nature of largesse. It is not a case of ‘taking away’ from one party and ‘giving’ to the other property which ‘belongs’ to the former. The claimant is not a supplicant. Each party to a marriage is entitled to a fair share of the available property. The search is always for what are the requirements of fairness in the particular case.

10.

What, then, in principle, are these requirements? The statute provides that first consideration shall be given to the welfare of the children of the marriage …. Beyond this several elements, or strands are readily discernible. The first is financial needs ….

11.

This element of fairness reflects the fact that to a greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and child-carer. Mutual dependence begets mutual obligations of support ….

12.

In most cases the search for fairness largely begins and ends at this stage. In most cases the available assets are insufficient to provide adequately for the needs of two homes. The court seeks to stretch modest finite resources so far as possible to meet the parties’ needs ….

13.

Another strand, recognised more explicitly now than formerly, is compensation. This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage….

….

16.

A third strand is sharing. This ‘equal sharing’ principle derives from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals. …. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends, each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase: ‘unless there is good reason to the contrary’. The yardstick of equality is to be applied as an aid, not a rule.”

The speeches of the House of Lords in White and Miller make clear that contributions come in all shapes and sizes. In some marriages, contributions may be very clearly delineated between the money earner and the homemaker, but they are treated equally. In many, the dividing lines will be far more blurred, with each party contributing to the various needs of the family in a wide variety of different ways. Ultimately, a marriage is about a partnership in which usually both will contribute in the way in which they are able. Thus, contributions almost inevitably have to be evaluated in the context of the marriage that existed.

These principles are well summarised by Lord Wilson in Scatliffe (British Virgin Islands) [2016] UKPC 36where he said at [25]:

“in an ordinary case the proper approach is to apply the sharing principle to the matrimonial property and then to ask whether in the light of all the matters specified in section [25 MCA] and of its concluding words, the result of so doing represents an appropriate overall disposal. In particular it should ask whether the principles of need and/or of compensation best explained in the speech of Lady Hale in the Miller case at paragraphs 137 to 144, require additional adjustment in the form of transfer to one party or further property, even of non-matrimonial property, held by the other.”

The assessment of need is a discretionary matter. Mostyn J said in FF v KF [2017] EWHC 1093 at [18]:

Conduct may fall to be weighed in the discretionary evaluation in a variety of circumstances;

In determining what the assets of the marriage were and thus what should be shared or is available to meet a party’s needs, the usual rules of evidence as to findings of fact apply: Hart v Hart [2017] EWCA Civ 1306. This applies to what the assets were at the time the marriage ended in 2002 and whether assets acquired subsequently were in fact a later manifestation of an earlier asset.

In considering the consequences of non-disclosure and the extent of undisclosed assets, the guidance of the Court of Appeal in Moher v Moher [2019] EWCA Civ 1482 is of assistance:

In determining what the net assets are, the court should take account of tax liabilities. The court should not assume all offshore assets acquired would be subject to UK taxes. Assets brought onshore would likely be subject to UK tax.

The POCA scheme requires the court to proceed in a particular way. This includes under s.6(4):

A criminal lifestyle can be found if particular conditions are satisfied. In this case, HHJ Tomlinson concluded they were and thus the general criminal conduct assumptions were applicable, and they would apply during the six year period prior to the start of the criminal proceedings.

The assumptions under s.10 POCA include:

In R v Ginwalla [2005] EWCA Crim 3553 at [20], the court said that it will generally resist engaging in a detailed tracing exercise to separate tainted payments and assets from those that are legitimate. That is not say it won’t entertain a broad assessment tour to infer what the likely value of those assets.

In determining third party property interests, the courts should apply the same property law principles as in any other civil proceedings: R-v-Ruto (2022) 2 Cr App R (S) .

In Re MCA [2003] 1 FLR 164 the Court of Appeal held:

“[43] In my judgment, there is nothing in the provisions of either the MCA 1973 or the DTA 1994 which requires the court to hold that either statute takes priority over the other when the provisions of each are invoked in relation to the same property. Both statutes confer discretion on the court, which the court may or may not choose to exercise, to make orders. The terms of those orders will depend on the facts of the individual case. Each statute gives the court mandatory guidance as to how the powers are to be exercised. Section 25 of the MCA 1973 requires the court to take into account all the circumstances of the case and, in particular , the various factors set out in s25(2) when deciding whether, and if so in what manner, to exercise its powers (per Schiemann LJ).”

Factors which relate to the criminal conduct and which will influence the exercise of the court’s discretion when hearing the financial remedy application include:

In Solomons v Solomons [2007] EWHC 1362 Munby J makes clear that the assumptions in the Proceeds of Crime legislation do not apply in family proceedings. In relation to conclusions reached in confiscation proceedings a distinction can be drawn between:

In relation to tainted assets at para 26 in CPS v Richards & Richards [2006] EWCA Civ 849 Thorpe LJ said:

“where assets are tainted and subject to confiscation they should ordinarily, as a matter of justice and public policy, not be distributed. That is not to say that the court is deprived of jurisdiction under the 1973 Act nor to say that no circumstances could exist in which an order would be justified; an example of a seriously disabled child living in specially adapted accommodation was mooted in argument.”

Where the Crown Court considers that the family court’s award has reduced the realisable assets of the Husband this may lead to a reduction in the Confiscation Order. Where the court considers that a party has further undisclosed assets this may not be appropriate.

Each of the parties, save Odessa Management , filed written documents at the commencement and/or the conclusion of the case and for several of the Respondents they have also set out their arguments in their witness statements. In this section, I shall only seek to summarise the essential points as they appeared to me or which the parties laid particular emphasis on.

The Wife’s case was set out in her Skeleton Argument at the commencement of the case, supplemented by her written closing note on the law and in Mr Sirikanda’s oral submissions.

The Husband’s position broadly remained the same over the course of hearing having been set out in his Opening Note and continuing in his Closing Note and separate cross-referenced document. He sought in these to refer to BG4 which I had not given permission to rely on. He is a Litigant in Person albeit a lawyer and his documents and advocacy demonstrate that he is highly intelligent, has acquired extensive knowledge of the law in the fields of financial remedy and criminal confiscation as well as in evidence and that he is well able to develop and present a case. Combined with his expertise in his own legal field of commercial law in particular offshore structures and his ‘nose’ for a deal he could have been a formidable lawyer. This is all severely compromised in this case by his profound dishonesty combined with his intense hostility to the Wife. The following summary contains the essence of his response to the Wife’s claim in which his central proposition is that he made full disclosure in 2002-4 and that the provision made by the Consent order of April 2004 remains the proper outcome.

Mr Christopher KC filed a Position Statement and made oral closing submissions on behalf of Mr Shamutete and Mr Mutati in support of their positions that:

In support of these positions, Mr Christopher made the following essential points.

The submissions made on behalf of the Third Respondent were in essence limited to the Position Statement and the witness statement. The Third Respondent’s position is and was that:

Castlegrove/Sunfor filed a Position Statement and a Written Closing statement. The essential points they made were:

The Crown Prosecution Service filed a Position Statement at the commencement of the hearing, made closing submissions and provide a helpful tabular summary setting out their position in relation to the evidence relating to acquisition of assets and whether they were tainted by assumption or specific criminal activity. The essential points made by Mr Kinnear KC seem to me as follows:

All of the evidence must be drawn together in a non-compartmentalised, panoramic evaluation. Inferences from the evidence can be made but the court must beware of speculation and I am acutely aware of this given how little we reliably know about the Husband’s finances before the separation. A balance of probabilities evaluation contemplates a range from ‘certainty’ through to ‘only just’, and the closer to the ‘only just’ end of the spectrum the more likely it is that one will find features which are inconsistent with that more likely than not outcome. However, that cannot distract the court from its task of determining on factual matters whether something is more likely than not to be so. If that is the case the law returns a value of 1. If it is not so, the value returned is 0.

I would add that the complexity of the trails that need to be followed and the volume of material that needs to be considered, taken with the inconsistent accounts that have emerged over the years, make the task for the lawyers, the judges and the parties immensely difficult. For Mr Gohil who is a clever and sophisticated investor and lawyer and who set up almost all of the structures we are dealing with and who knows them (for the most part) inside out it is not difficult to identify where a judge, lawyer, party, or investigator has made a mistake or mis-remembered something. It is part of his approach to do so and to lay smoke and to deploy mirrors to confuse and obfuscate.

One cannot assume that every document the Husband produces is forged or tampered with although the convictions and the contents of the Confiscation judgment (as well as his own evidence) amply demonstrate that he has the capacity to manipulate and forge documentation. One therefore has to be extremely cautious about any documentation that he produces which has not been produced through a legitimate source but even for those produced by a legitimate source caution must be applied where he has had a hand in creating the document as to whether what it records was actually true.

In a case such as this, it is almost inevitable that there will be occasional errors of reference or misunderstanding but it seems to me that this case does not revolve around the application of the law but primarily it is a matter of evidence and factual evaluation and that requires the Court to focus on the panoramic landscape, to stand back from individual details and to observe the whole, the patterns of conduct rather than individual events or documents and to avoid the trap of allowing one or two or 10 details out of the many thousands to distract from the essential task of interpreting the landscape which lies before me. To do so risks creating an indeterminable case – where one could continue to litigate until the parties expire – that would be an abuse of both the parties and the system. In order to achieve finality and to enable other parties to have court time allocated to them the court must deliver a result. Although it may be a Ford Focus of a decision rather than a Rolls Royce as long as it does the job and is reliable that is sufficient. I decline to descend into the detail which the Husband would wish and prefer the ‘stand-back and apply a broad brush’ approach of the Wife.

The very considerable documentation (Footnote: ²) produced which at times is contradictory (e.g., the ECS documentation regarding the beneficial ownership of Castlegrove Inc (1C-57 /BG3-170) for which there is not a clear explanation, and which might range from forgery to error supports a cautious approach to over-reliance on what documents say. HHJ Tomlinson identified evidence of back-dating documents and forgery. The evidence of how structures have been created to mask true ownership – which may be entirely legitimate – means that one cannot take documents at face value. Obvious examples of this include the layers that have to be peeled back to see that Fougeres Trust and Mr Sodhi were never the real beneficial owners of 88 Sydney Street and that Castlegrove was or indeed that Hemptons were not, and Mr Almquist was in 2001. Thus, the heavy reliance that the Husband and most of the respondents place on the documentation will rarely be an answer particularly when it comes to the documents which relate to structure. Contemporaneous correspondence and some other contemporaneous minutes of meetings or emails may be in a different category but even some of these are template resolutions which tell us little about what other layers may exist below or behind them.

The very considerable documentation that has NOT been produced also supports a cautious approach to over-reliance on documents because the documentary record is incomplete. This is in part because we know documents exist which are MLA material for which consent has not been obtained but also because the parties have chosen not to produce it (this applies to the Husband in particular who produced BG3 at short notice and also produced BG4 which I did not allow him to introduce) but I think also to a degree to the Wife and also to Mr Shamutete and Mr Mutati who produced a selection of the statements they obtained from Singapore and very little which addressed the provenance of the funds which they claim funded Parabola and Miramar and which HHJ Tomlinson did not accept.. In addition, MLA requests are quite specific in terms of the requests made which made the process of identifying the documents produced from MLA requests such a task and which does not therefore necessarily result in the disclosure of ALL documents which might be relevant but only those required to answer the request. It is therefore possible, if not probable, that the documents which were produced in answer to MLA requests will not necessarily be the complete record either over time or even within a specific time frame for a particular entity. Thus, what we have may be a dip sample – possibly quite an extensive dipping but not a complete immersion.

The complexity of the dealings with assets with companies being, for instance, incorporated in the BVI, with administration being undertaken by a Mauritian company but based in the Isle of Man with corporate directors from the Seychelles, bank accounts in several countries in addition to accounts operated by the services companies and where the registered shareholder might change several times for no obvious reason and with no visible consideration (1C-72/ 1B-1027), and where there are entities with similar but different names and where assets are transferred from one entity to another with regularity contribute to the difficulty in deciphering the evidence.

The convoluted nature of the transactions may well be common for the lawful reasons the Husband explains – maintaining confidentiality and tax efficiency (including avoidance) but they are also seen in the context of money laundering and tax evasion and so one must be cautious, particularly in this case where there is proven criminality in the form of money laundering, forgery and fraud on the husband’s part in inferring (as the CPS seeks to do) that any transaction which involves that sort of convoluted structure is evidence of criminal conduct. The CPS submission that that the court should infer that all of the transactions that the Husband was involved with which were relevant to the generation of the assets, the subject of this hearing, were criminal in nature is with respect an oversimplification.

The timeframes over which the evaluation of the evidence spans, but condensed now into a 4-week period, brings its own difficulty in terms of my noting there may be pitfalls in evaluating 30 years of activity as if it occurred in months or a couple of years.

The very extensive nature of the documentation, evidence and submissions inevitably means that this judgment presents a record which is no more than the tip of the ice-berg of that evidence but also of my analysis of the evidence and my evaluation of the issues. Recognising the existence of a surrounding penumbra would not I think adequately reflect the proportions of what is recorded and what is not. This judgment does not attempt to address every point made by each of the parties but in its entirety, I have aimed to address the substance of each of the parties’ cases.

The judgment of HHJ Tomlinson is not binding on me although may be in respect of certain parties for certain issues but in the context of this case with its different parties and the applicability of a different legal framework, I have not treated any aspect of it as technically binding on me. It is of course the product of a very extensive court process with evidence deployed in ways which it was not before me and with some MLA evidence which has been inadmissible in these proceedings. It is rich in its recitation and consideration of the evidence. The conclusions reached by HHJ Tomlinson are therefore deserving of great respect and weight, but it is open to me to differ from his conclusions on the evidence. However, it is not my function to review his judgment in particular his application of the statutory framework that he applied. Whilst some of the Respondent’s, notably the Husband and the third, fifth and eighth have focussed on a critique of HHJ Tomlinson’s application of the law and his use of assumptions it is not my function to subject his judgment to a review or to overlay his judgment with my own. The Court of Appeal will no doubt undertake their review in due course based on the Grounds submitted and in the event that a receiver is appointed, third parties will be able to make representations as to the serious risk of injustice issues. Notwithstanding that the Husband was bound by the determination that he was the beneficial owner of the assets considered by HHJ Tomlinson, many of which form part of this case, and that they were the proceeds of crime, I have permitted the Husband considerable latitude in presenting and testing the evidence which relates to beneficial ownership and taint because the presence of the Wife and the other Respondents and the nature of their cases required exploration of those issues to some degree and in which the Husband was the central player. No one sought to re-run the confiscation proceedings nor to extend the findings made but plainly there was some overlap in the evidence and the issues that fell for consideration in each case. What I have undertaken is an analysis of the evidence, documentary and oral, and evaluated that evidence in order to determine the issues in these financial remedy proceedings including the third-party interests. I have had the huge advantage of hearing the oral evidence of the Husband in this process and that fact alone means the evidence base available to me may be better illuminated than perhaps it was before HHJ Tomlinson. Of course, I acknowledge that in certain respects there are aspects of the landscape which are obscured for me by the absence of the non-consent MLA material. However, having mined the seams of evidence to great depth my perception is that material from Hong Kong and Singapore is of limited bearing on the timeframes which are most important for this process which range from the late 90s until about 2005. In respect of the material from Switzerland that would appear to potentially be of greater relevance but in respect of pre-1999 material Mr Shamutete and Mr Mutati could have obtained and submitted it but have chosen not to, and for the Husband, Castlegrove, Sunfor and the Third Respondent it would have been available to them likely across the whole period. If it has not been produced by them in support of their case it is likely that is because it does not support it. In the course of my analysis of the evidence and my evaluation of the conclusions that can properly be drawn on the balance of probabilities I have not identified any area where I have concerns that unavailable MLA material might be likely to significantly tilt the balance. Nor have I reached any conclusion which appears so significantly at variance with the conclusions that HHJ Tomlinson reached by application of assumptions that it raises an alarm bell as to his conclusions. As will become apparent, that is not to say that I have not reached conclusions on my evaluation of the evidence and without the application of assumptions which do not differ from his in some respects, but from my perspective those differences arise primarily and perhaps exclusively from the advantage I have had of hearing the Husband’s evidence.

Taking the R-v-Ginwalla (above) and the Moher (above) approach it is neither practicable or possible in this case to undertake a detailed tracing exercise to identify definitively when the Husband’s criminal conduct commenced and what form it took, precisely what assets or part thereof was funded by legitimate offshore business activity, legitimate business which involved tax evasion or unlawful conduct. Such an exercise would have to stretch back into the 1990’s and run into at least 2008 and would replicate the work undertaken in the criminal investigation but extend it many times further. The evidence is rich enough to make me feel confident that a broad assessment can be undertaken which involves drawing together evidence and inferences which are appropriate to make, and which involve no injustice to any party in particular those who have chosen not to attend to support their cases with their oral evidence.

The combination of features identified above make it possible that almost any document or conclusion based on a document alone could potentially be contradicted by another document. The conclusions I reach are based on a much broader evaluation of the evidence which includes the documents but also the oral evidence of the Husband and the Wife and inferences which can be drawn from this and other evidence and from standing back and placing documents or transactions in the overall evidential landscape, from other findings of other courts, of the evidence of other parties and other witnesses.

The detailed Chronology represents a fairly wide-ranging sampling of the documentary evidence incorporating many of the critical documents each party relied upon and that forms the framework upon which my evaluation of the witnesses and the analysis of the evidence rests. The Flow Charts and Tables which the parties have relied upon have shed further light on the evidence, but I have not incorporated them in this judgment. My conclusions are reached on the balance of probabilities. A finding on balance of probabilities might range from being sure, through to being satisfied only just that it is more probable than not. The closer to the only just end of the spectrum a conclusion is, the more the scope for evidence which is inconsistent with that conclusion and that is a fact of the binary outcome system we operate. I do not seek to differentiate between findings where I am sure or where I am only just satisfied – it will be clear in my discussion that there have been some issues where the evidence is very clear and the landscape abundantly lit and clearly discernible and others where there is more shadow, less detail and where conclusions as to what that landscape shows have been harder to reach.

The combination of the documents, his own written evidence, his oral evidence, the findings already made against him and his approach as set out in submissions all lead to the overwhelming conclusion that the Husband is thoroughly dishonest, perhaps pathologically so and is a man who has no conscience in drawing his family into his web of dishonesty and who will attribute any contrary evidence to misconduct by another whether it is corruption in the police, dishonesty in bankers and businessmen, fabrication and hostility in his ex-Wife. His level of dishonesty and the apparent absence of any moral compass would be noteworthy in most cases but reaches the highest level when it comes from a former legal professional and extends so widely to his closest family including his children and is accompanied by an absence of any real remorse; his statement to the contrary was to the effect he is sorry ‘this’ has happened not sorrow about what he has done. What makes the Husband exceptional in this field is that he presents so convincingly as an honest and sincere man. One can well understand how those in his orbit could be taken in and repose trust in him. He is also extremely knowledgeable and confident in his field in the legal but also the commercial aspects of investment, in particular the use of offshore vehicles and facilities. He has used that knowledge and expertise firstly to the benefit of himself and his clients, to obscure his true financial position from the Wife and the courts, to enrich himself and his fellow convicts at the expense of the people of Nigeria and in this trial to seek to pull the wool over the eyes of the parties and the court.

The Wife is a much more straightforward character although how she is now at age 60 with a 23 year marathon (perhaps an Iron Woman Ultra Marathon would be more apt) to a financial remedy order may be quite different to the woman she was at 37 when she left the Husband following the discovery of his affair. She is clearly a capable, intelligent and conscientious woman who has for long periods had to manage this litigation herself and a dedicated mother. She is a far more honest and straightforward witness than the Husband although not unblemished. Not surprisingly her position in relation to the Husband and his wealth has been shaped by the journey she has undertaken and what she has seen and heard along the way. Her belief in 2004 – recorded in the Recital to the order – that the Husband was not disclosing the full extent of his wealth has been vindicated but whether she is now able objectively to assess the evidence to discern what his wealth is or may have been is, not surprisingly, compromised. The extent of his dishonesty and manipulation provides a fertile soil for her suspicions to flourish. The totality of the evidence would suggest that she was exaggerating to some degree the lifestyle the family lived although the documentary evidence of credit card bills supporting a modest lifestyle is offset by the fact that the Husband was accustomed to deploying large amounts of cash and so disguising the reality. She has also pitched her case at the highest level reasonably possible and so whilst she is a much more reliable witness the court is not in a position where it could simply adopt her case.

The Husband’s depiction of his financial position as of 2002 involved very significant non-disclosure of his true position. It is clear that prior to 2002 his work did not comprise exclusively legal work within the parameters of the Arlingtons Sharmas partnership. Indeed, the evidence would suggest that this was only one component of his work and perhaps the smaller part. In addition to his work as a solicitor for Arlingtons Sharmas the Husband was clearly also involved in investing on his own account. The evidence from his affidavit of October 2002 [BG2-382] sets out a series of transactions which contributed to funds in the Odessa account. It is clear from the evidence that the Husband’s father did not have the knowledge or contacts to set up and operate that entity nor to undertake the investment activities which generated the monies, but they were very much within the Husband’s field of expertise. His cross examination of the Wife on his work as a solicitor was conducted on the premise that he did not undertake any other work, yet his own earlier affidavit contradicted this. Having made several hundred thousand pounds profit through these three transactions why would the Husband then down tools whilst continuing to advise his clients on similar matters and manage their investments? I do not accept his evidence that these were his only ‘investments’. This conclusion is not only the logical inference from his own evidence but is supported by much else. The letter of August 2001 from Rekha Yadav alone [BG3-26] about Fazmac confirms he had been one of two investors (the other being Mr Shamutete) in the paint factory and so had substantial funds to invest but also was receiving payments from Fazmac. At around this time (October 2001), Fazmac was valued by the Husband himself at $275,000 [1B-1429]. The fact that he was the beneficial owner (as determined by HHJ Tomlinson and confirmed by my own analysis of the evidence) of substantial assets such as Castlegrove (and the funds to buy 88 Sydney Street), an account at Lombard Odier, properties in India and some of the funds which went into Parabola/Miramar show that he must have had other sources of substantial income as his drawings from Arlingtons Sharmas evidenced by the HMRC records could not have funded it. In addition to his investment activities, it is also clear that he was working outside the parameters of Arlingtons Sharmas and was receiving remuneration for advising on and managing investments or otherwise undertaking management and advisory work. Although he attributed this work to Rekha Yadav I am satisfied that he was undertaking such work and was billing for it outside the parameters of Arlingtons Sharmas. This may explain why Mr Shamutete and Mr Mutati have not taken action against Arlingtons Sharmas but against the husband in his personal capacity nor sought compensation for misuse of their funds. This fact that he was advising outside Arlingtons Sharmas is confirmed by several sources – usually reflecting what the husband said; 1C-193 [Westlake and Sunset]; oral evidence re Merrill Lynch withdrawals being consulting fees for Shengo/Parabola; 1C-62/1C-63, OW4-377 [Castlegrove]. The BNP account opening documents for Parabola and Miramar record Castle Grove Consulting Ltd as the referrer not Arlingtons Sharmas and so any referral fee would presumably have been payable to Castle Grove not Arlingtons Sharmas.

On 7 March 2004 [OW4-375 et seq] Castlegrove invoiced Parabola, Miramar and Cetus a total of $62,385 for management services and the husband authorised them all for payment. His evidence was that these Invoices represented the work of Rekha Yadav and a team of 2 or 3 advising Parabola on investment strategy. Quite why Mr Shamutete would have paid separately for such advice from someone with no apparent qualifications in the field when Parabola had the might of Schroders, BNP and Merrill Lynch’s advisory teams is unclear but the invoices are for ‘Management Services’ not Investment or Financial Advice. Interestingly on 7 March 2004 the Husband authorised payment of identical invoices to Parabola for Castlegrove’s management services for the periods of 1 July – 30 September 2003 and 1 April – 30 June 2003 for $14,040.75 (x 2) and $11,515.61 (x2) ; the invoices do not explain why different amounts were charged for identical services. The same occurred when the husband did his billing on 21 October 2003 with Parabola again charged twice with different amounts for the same service. A similar multiple billing occurred in July 2023 which invoiced Parabola $14,040, $3,496 and $11,515 for management services undertaken from 1 April 2002 – 30 June 2002. A total of $68,124 + £2,000 was billed on 31 July 2003 for the 6 month period April – September 2002. The continuum of Castlegrove billing Parabola therefore clearly extends back into the marriage. How Castlegrove Inc could legitimately bill for work allegedly carried out in April 2002 some 8 months before it was incorporated is not clear although if it had ‘acquired’ the business of Castle Grove Consulting that might explain it and why billing was undertaken 12-15 months after the work was carried out is also unclear. It does not suggest dire finances in April 2002. The multiple billing of Parabola for seemingly identical services could support a conclusion that the Husband had erroneously completed billing details, or was over-charging, or that he considered the Parabola funds to be his and was using this ‘billing’ as a vehicle to move them closer to him - albeit still offshore in the Isle of Man. That could support an inference that the Parabola funds were the product of unlawful conduct/crime or that they were not unlawfully obtained but moving them to the Isle of Man made them accessible in cash without bringing them onshore and exposing them to tax.

In addition to these matters, the lifestyle of the family whilst not as luxurious as the Wife’s Form E [4.2] would depict was prosperous. All 3 children were in private schools and the Husband accepts they were considering boarding school for at least the boys; these commitments involve significant sums of taxed income and are inconsistent with the Husband’s earnings from Arlingtons Sharmas as per the HMRC document. They are only compatible with the Husband having access to substantial sums of money. It could be said that these were to be drawn from Odessa, but the evidence does not suggest that this was done but rather that other sources were used. The Husband suggested that the fact fees were in arrears and Arlingtons Sharmas were paying some indicate financial hardship but the fact that there was near £600,000 in Odessa alone and the large cash sums that the Husband was receiving suggest that he was either happy to hold onto his cash and let Arlingtons Sharmas and the school take the strain or that it suited him to depict himself as short on cash. The Husband was using Castlegrove funds to pay his Annabel’s subscription (then one of the most exclusive clubs in London) and just one example of his expenditure (charged to Castlegrove not Arlingtons Sharmas) of £1,600 at a charity auction to buy FA Cup final tickets (equivalent to nearly £3,000 at today’s prices) illustrates a lifestyle wholly inconsistent with the picture he was painting to the court but wholly consistent with a very considerable income from sources other than Arlingtons Sharmas. By 2006 he was paying his lawyers £10,000 from Castlegrove. Large sums in cash were being delivered to the Husband – from the ECS Isle of Man Castlegrove account the amount is £21,500 in August – December 2003 alone which whilst after the ending of the marriage is consistent with the Husband having £12,000 in the safe as at April 2002 which he said the Wife removed when she left. Large sums (much in cash) of £98k [BG1-1107] or £150k [1B-1317] were also expended on the refurbishment of Highlander in early 1998 which would represent a very significant part of the funds from the Guyana Goldfields investment which amounted to £236,000 odd in 1996.

Thus, the evidence as a whole makes it far more probable than not that the Husband had at least 3 sources of income:

I shall also consider whether any of this income was the product of unlawful conduct or criminal activity below.

Moylan J concluded that the Husband had failed to disclose his true asset position during the ancillary relief proceedings which led to the consent order of April 2004. The Supreme Court upheld the conclusion of undisclosed assets on the basis of

The Husband’s case has been that he was unable to properly present his case before Moylan J as he was in prison and did not have access to all his papers and now that he has been able to collate his evidence, he can demonstrate that all of those matters have now been proved to be unfounded and there is no non-disclosure. He also maintains that the Wife’s interrogation of his lap-top in April -June 2002 and the very extensive police investigations including the seizing of computers, the hard drive in the void and Arlingtons Sharmas records and MLA requests has subjected him to one of the most in-depth investigations ever undertaken and thus that if there were anything to be found it would have been found.

The Husband’s case that he was not guilty of non-disclosure in 2002-4 or at any time subsequently is not only unsustainable by reference to the evidence that deals with the non-disclosure that led to the set aside but more importantly the decision of HHJ Tomlinson and my own findings are that not only was the Husband engaged in more extensive work activity than he disclosed in his Form E, but that this had led to him becoming the beneficial owner of assets that existed in 2002 and thus there was very substantial non-disclosure then, in 2007/8 and thereafter and on balance of probabilities, there is still non-disclosure now.

This extends not just to the assets currently identified and in dispute but in respect of true ‘hidden’ assets. Although the Husband undoubtedly has been the subject of an extensive investigation, I do not accept the proposition that if there were anything to be found it would have been found. The police investigation did not recover all the Swiss, Singapore or Hong Kong statements that are supposedly relevant to Mr Shamutete and Mr Mutati from the Arlingtons Sharmas offices or the Husband although it was said that their statements were kept in London. I do not accept the Husband’s evidence that the laptop that was left at home whilst he was in India prior to the Wife interrogating his laptop from 18 April 2002 onwards was his only work laptop. It may well have contained work material, but I do not consider it credible that the Husband would have travelled to India without his laptop and given up access to emails and files via his laptop whilst away. The extent to which he was engaged in both his Arlingtons Sharmas legal work, his own investments and his freelance business activities make it near inconceivable that he would be in effect out of the loop for 10 days. This conclusion is fortified by his suggestion that on his return and realisation that his home laptop was missing that he reported his work laptop missing to the police thinking that he had perhaps lost it at some point. The suggestion that he could have believed that he had his laptop with him in India and that he might have erroneously thought it had gone missing at some point is not credible. If the Husband did report his laptop missing to the police it is more likely that he did so to promote the narrative that the Wife had had access to all of his files. Nor do I accept that the police investigation including the seizure of the hidden Merrill Lynch statements and a hard drive would necessarily have given them access to all relevant documentation about the Husband’s finances. The Husband is sufficiently well versed in covering his tracks to have adopted means by which tracing his assets would have been made either extremely difficult if not impossible. Some of the invoices for entities contain debits for Safe Deposit boxes but there would be many ways in which a man of the Husband’s sophistication could have covered his tracks. The existence of glimmers or traces of other assets supports the conclusion that not all has been found. That so little has been discovered about the Imxal Discretionary Trust, the sources of the Odessa funds in 2007, the missing $165,705 from the Enzo account of January 2000, and Soc Pem (or Gen) [perhaps a later iteration of Brown Shipley] from the Husband’s notes all point to trails which have not been capable of investigation and to other assets. The evidence referred to in the Chronology for 23 July 2002 strongly supports the existence of a more extensive account arrangement with Brown Shipley and the evidence the Husband produces does not answer this satisfactorily. I acknowledge that in the documents there is the potential to identify all sorts of trails which do not have an obvious end and care needs to be taken not to assume that this means there is another undisclosed asset but those I refer to above all have sound footings in the Husband’s own documents. Given the Husband was undertaking Arlingtons Sharmas work and commercial/investment work for others there will have been substantial financial transactions which will not be related to his own disclosed, discovered or undiscovered assets. The fact that the Husband was able shortly after the divorce to buy his sisters Rolex watches, to fund a lavish birthday party and was able to offer to buy a house for the Wife and children would also support the existence of greater wealth than he disclosed.

Notwithstanding my acceptance of the fact that the Husband was involved in legitimate Arlingtons Sharmas work – certainly during the marriage and probably at times thereafter - there is sufficient evidence to identify the probable existence of known ‘undisclosed’ assets and a strong likelihood of unknown undiscovered assets. The Husband’s communications to Rekha Yadav in early 2015 urge her to claim three identified assets (Raj Classic, 88 Sydney Street and the Castlegrove Julius Baer account) but also refer to the possibility of other assets (see below) and are couched in terms which simply refer to losing three valuable assets rather than losing his life’s work or everything that they have worked for et cetera. The terminology suggests the three assets could well be part of a larger portfolio, but which had been identified by the police and subject to restraint. Having seen the Husband give evidence, the tone of his letters does not carry a sense of desperation which it seems to me they would have if he thought that all he had was at stake. To describe those three assets as “three valuable assets/amounts” when the total value wasin excess of £7 million is consistent with a larger asset base rather than that being exclusively his asset base.

An obvious example of the unknown ‘undisclosed’ asset is that in January 2000 the sum of $165,706.33 was remitted by IMM at the Husband’s instruction from the Enzo funds to an unknown destination. It is unknown because the Husband has redacted the document which was his instruction as to where it was to be remitted and IMM’s response confirming where it was remitted. There can be no doubt as to what the redacted parts of the documents cover. Although in the context of this case it is a ‘modest’ sum it was not modest when considering the capital provision made for the Wife but most significantly is where that sum would lead to. The inevitable inference of the Husband redacting this document is that it would lead onwards to an entity/account which has not been identified and interrogated. If it had been and the $165,706.33 appeared elsewhere there would be little point in concealing it. Perhaps it went to a Lombard Odier account – perhaps to Brown Shipley perhaps somewhere else entirely.

The Husband’s own Notes (albeit later in 2005/6) confirm the non-disclosure [1B-255-258] as they refer to assets which were alleged to be hidden in 2003-4 but which the Husband successfully denied were his at that point. If he was considering borrowing £3m he either had security for this offshore of an equivalent amount or was relying on income of perhaps £750k - £1m per annum. These include Imxal, Fougeres, Sydney Street, Castlegrove, SCI. They also refer to Soc Pem, or Soc Gen and this may be a reference to Soc Gen/Hambros/Brown Shipley (Brown Shipley were taken over by Hambros/Soc Gen. See Chronology for 23 July 2002 which explores how the Brown Shipley investment account which backed the loan used to part finance the Highlander renovation was never adequately tracked down and is not evidenced in BG1). Soc Gen also banked for Crest High though and it is unclear what became of this or its assets. I do not accept the Husband’s account that these notes were aspirational and did not reflect assets he had.

The Husband’s list of requests to Rekha Yadav [1B-1250, item 8] suggests another entity operated by Trustlink (a Mauritian corporate services company) which had funds in it which were not known for the purposes of the restraint order in contrast to the Castlegrove, Julius Baer account which seemingly was. The Husband suggesting to Rekha that she insist on obtaining a bankers draft and depositing funds at ICICI bank would support the existence of another unidentified entity with funds in its accounts.

The evidence supports the conclusion that the Husband does have an interest in a discretionary trust most likely the Imxal Discretionary Trust. The TR1 refers to this as do other documents, and the Copex documents of 2007 [1C-193] refer to the Husband having an existing discretionary trust as do his own notes. Given there is no other Trust disclosed that the Husband was a beneficiary of; this points to Imxal. The presence of documents which also point to Mr Zvogbo as the beneficiary of a trust called the Imxal Trust (which identifies Isle of Man charities as a beneficiary which seems odd) does not persuade me that the Imxal is not the Husband’s. BG1-2371 and others would record Dr Zvogbo as the Settlor but the appearance of Imxal on the TR1 and on the Husband’s own notes suggest that this was again a device to distance the Husband from the asset. The Wife’s note that Imxal is Laxmi spelt backwards – a Hindi word for the goddess of wealth – suggests more of a connection with the Husband. What the explanation for the documents which refer to Dr Zvogbo is I cannot determine; there may have been movements in the Trust to change the beneficiaries, there may be more than one entity, there may be forged documents. The documents the Husband refers to in para 32 and Cross Reference i.e BG1-1783 and BG1-2378 refer to ‘The Trust’ or the ‘Imxal Discretionary Settlement’ or the Imxal Trust and so are irrelevant to the Imxal Discretionary Trust for the purposes the Husband puts them although his reference to them knowing as he does the precision required in these matters lend further support to the conclusion that he lays false trails by the use of variants of names. The document at BG1-2386 which produces only the Letter of Wishes of EJM Zvogbo is potentially inconsistent but falls within the zone which a balance of probabilities finding contemplates.

Castle Grove Consulting Ltd was established in January 1999. There is little documentation relating to this entity and Castlegrove Inc was incorporated on 9 December 2002. It is more probable than not that Castlegrove Inc was established as a successor to Castle Grove Consulting Ltd; perhaps because the Husband was concerned that some link to the first company might have emerged in the ancillary relief disclosure process. Although the shareholder/owner has never been recorded as the Husband but has moved from Lindsay Smallbone to Rekha Yadav and to and fro since, the true beneficial owner is and always has been the Husband. The removal of Lyndsey Smallbone and the transfer to Rekha Yadav was a product of the difficulties the Husband was having establishing a bank account for Castlegrove Inc because Mr Smallbone had some black mark against him [1C-84 (79)] and the change in beneficial owner was apparently a purely administrative matter. The fact another was identified as the beneficial owner would not matter as the Husband would have de facto sole control through a Power of Attorney and through his position vis-a-vis the directors who would do his bidding under the umbrella of him using the Power of Attorney. This sort of power is seen in action in relation to another company when Mr Shamutete asked the bank directly for some funds and they declined and the Husband had to authorise the transaction.

Subsequent administrative changes have taken place including the eventual transfer from Rekha Yadav to the Third Respondent, Kamla Gohil, which the Husband said was done by Rekha when she was seriously mentally ill and so she had the idea to transfer it to her mum as a trusted person [Husband’s O/E]. Castlegrove also was held by the Saavhi-Pirut Trust which the Husband claimed to know nothing about. Most recently, Castlegrove say Rekha Yadav ‘relinquished’ her ownership to KGBFYOC and there is now no ‘familial’ connection. Given Castlegrove had owned 88 Sydney Street throughout these periods this apparently cavalier attitude to the transfer of beneficial ownership of such a valuable asset supports the conclusion that these are no more than ‘paper’ transfers which are window dressing to disguise the real ownership. HHJ Tomlinson concluded that the husband was the beneficial owner of Castlegrove relying on;

This conclusion is further supported by

By the time of the Confiscation Order, the Julius Baer account as at 27 September 2016 had a balance of £3,085,206 [CPS Schedule]. What this is made up of is not clear. Some funds came from the Castlegrove IoM account ($150k 8 April 2004), and from Rekha Yadav 12 May 2004 ($97,230) Some may well have come from Pictet and Cie K888156 in the two payments made of $725,000 in November 2005 and $365,000 in June 2006.

Castle Grove Consulting Ltd and its successor Castlegrove Inc was undisclosed between 2002-2004 with all the assets it then held – likely in the millions of dollars as the balance was $3.298m in July 2004 [1C-149].

Odessa Management Ltd: This was disclosed but it was asserted the Husband held only a 1/3 share. The Husband’s explanation of the source of some of the funds (Guyana Goldfields etc) may well be true but the suggestion that his father provided the seed-corn for the investments appears to be contradicted by the evidence [1B-1230] which shows funds being received from the Guyana Investments 10 months before any funds were received from the Husband’s father which would suggest the husband had provided that. In due course discussions are recorded about transferring Odessa to Castlegrove and, on the basis that Odessa was truly the husband’s vehicle rather than genuinely shared with his father and mother, transferring it to Castlegrove makes much more sense if Castlegrove is the husband’s. OW4-370 shows Castlegrove transferring $89,500 to Odessa in May 2007 which would confirm a connection. At 1C-111, on 26 May 2007, the Husband tells ECS that the funds are being moved to Odessa for investment purposes; the day prior to his Answers to Questionnaire [1-742 (738)] when he said the account was almost depleted and was about to be closed. The Husband’s father denied any association or knowledge of this account and the totality of the evidence supports the conclusion that the funds generated and invested in this account were the product of the Husband’s work and he was entitled to the funds in their entirety whatever the documentation may have said.

Lombard Odier account: The evidence supports the conclusion that such an account existed and was used as a depository for at least some of the sums generated by the Husband’s own commercial activities and his investment advice/management services provided outside the Arlingtons Sharmas perimeters.

The evidence supports the conclusion that a Lombard Odier and Cie account did exist which the Husband denied. It has been used in connection with Castlegrove and I reject the Husband’s account relating to Mr Pemsing. The disclosure of Sandeep Sud to NCIS on its own would not amount to much support but with the ECS references to Castlegrove and the email from Sima Sud to her sisters it supports the conclusion on balance that it did exist and contained substantial funds. The only figure given is $4m. BG1-3711 which the Husband relies on is CPS confirmation that Sima Sud is not asserted to be a beneficial owner of any part of the available amount asserted by the CPS and that reflects that a Lombard Odier account was not part of the assets the CPS had identified. It does not mean that it did not exist in 2002, 2005/6 or even in 2012 or now.

The Husband’s letter to his father, 3 December 2001/11 January 2002 [1B-1306] discloses that he was the owner of Bhayander and Versova and provided the funds to purchase them. In his letter to his father sent in January 2002 he refers to having provided the funds to purchase the two properties and alleges that his father illegally and fraudulently sold the properties. Both the ownership of the properties and the source of funds were undisclosed in 2002-4. The Husband accepted that he had written a letter at this time but denied that this letter was his and he deployed the ‘that language is not mine’ and ‘I would not use those words’ explanation. He accepted that parts of the letter were his but maintained that it had been tampered with to depict him as the owner. The letter really only makes sense if the properties are his and his threats find a symmetry in what Devan says is his attitude when his finances are under threat. I accept that the letter is genuine. I accept that the letter was a letter drafted and sent by the Husband and not something which was either forged by or manipulated by the Wife.

Rekha Yadav’s report on Fazmac [BG3-23] in August 2001 shows that the Husband had both become a part owner by share purchase and was receiving income. The Wife in evidence recalled Rekha being sent to Africa to be the Husband’s eyes on a business there.

There is suggestion that in addition to Hempton International Holdings Limited there may be another entity Hempton International Limited which may have received the cheque for £15,700 which the Second Respondent said was paid by him [B2-284]. The Wife’s recollection of seeing a statement for Hemptons with $2m in it I would tend to accept, but given the layers of ownership, I conclude the evidence for Hempton International Holdings Ltd being the Husband’s and that it was valued at $2m is insufficient to establish it on balance as an undisclosed asset of any substance.

I shall consider these separately when I turn to the third party interests next and which is relevant to the determination of what the 2002 asset base was.

This has proven to be one of the areas in which the evidence has been harder to decipher. HHJ Tomlinson had the benefit of more extensive evidence than I as he had sight of the MLA material from Switzerland, Singapore and Hong Kong. That suggests that his conclusions in relation to the third party interests bear particularly careful consideration. But I have had the advantage of hearing the Husband’s evidence and as he is central to this issue that brings different perspective. Neither HHJ Tomlinson or myself were able to hear from Mr Shamutete and Mr Mutati which would have provided a fuller picture.

The following elements of the evidence bear upon the issue of whether Mr Shamutete and Mr Mutati are mere nominees for the Husband or whether they are of more substance.

It seems clear that the Husband and Mr Shamutete were also engaged in mutual businesses together – the Fazmac documents support this – and so communications between them would be expected on this front as well.

The relationship between the Husband and Mr Mutati is less clear. Mr Mutati gives a broadly similar account. He says he had made money from emerald trading but with a different individual and he had $2.5m to invest. Again, no reference is made on banking documents to him having generated the monies from this source, but BNP record he had a substantial shareholding, jointly with the government, in mines.

Mr Christopher suggested that the Husband would have no need to use nominees such as Mr Shamutete and Mr Mutati as he did not use nominees when he opened the account at Pictet and Cie which is a valid question. However, the evidence strongly supports the conclusion that the Husband did find benefit in using nominees whether with their knowledge (Rekha Yadav) or without (Mr Sodhi). After 2002 the obvious benefit would be to distance himself from assets which the Wife might have traced. However, the evidence supports the conclusion that this was a component in his modus operandi before then and he was having an affair with Ms Gulab from at least 2000 and the Wife suspects affairs well before this. Tax efficiency, or avoidance or maintaining control through secrecy over his affairs all are good reason for deploying complex structures and nominees. Odessa Management Ltd and Castle Grove Consulting were both offshore entities which enabled the Husband to deploy a corporate vehicle rather than himself for the purposes of investing or holding assets. The Husband would appear to probably have had different reasons at different times, but the evidence suggests his deployment of this structure did not require an obviously malign motive but rather that it was part and parcel of how he had operated for many years whether for tax efficiency or simply because he found other satisfaction in this way of operating. Thus, joining forces with Mr Shamutete and Mr Mutati and using them as nominees rather than his own name would be entirely consistent with his way of operating.

The documentary evidence in relation to the handling of the funds from 1999 onwards is fairly extensive and much emanates from the documents obtained in the criminal investigation in England or from MLA material which is available to me. Their participation in giving statements and instructing lawyers demonstrates that Mr Shamutete and Mr Mutati cannot be characterised as ciphers in the way that it may be legitimate to characterise Kamla Gohil and Rekha Yadav and that they had their own business interests. All this supports the conclusion that Mr Shamutete and Mr Mutati were engaged in a business relationship with the Husband. The Rekha Yadav report on Fazmac also supports this conclusion.

The Bhadresh Gohil Funds Summary document from IMM [20291] [BG1-3270] could be read as illustrating the Husband’s undisclosed assets but the documentation [BG1-3522- 3526, etc] tends rather to support the conclusion that the Richter Equities, Enzo Limited and Miramar Trading Ltd funds were in some way linked to Mr Shamutete and Mr Mutati. As they seem to post-date the sums which went into the initial Parabola/Enzo/Miramar accounts and so add a further $1.7m of funds to a pot which is already significantly out of proportion to their declared sources of wealth it begs further questions as to where those funds originated (and ended up) but also, as referred to above, begs the question why they instructed the Husband when they already seem to have had professional advisers who had implemented offshore structures for them; see also BG1-3266 which seems to illustrate how existing offshore funds may have been liquidated to form the seed-corn for the Enzo Schroders account which is not a part of this case. The Bhadresh Gohil funds summary leaves an unanswered question in relation to the sum of $2,050,000 which is said to be ‘Unknown’ and which the Husband maintains is attributable to Mr Pemsing but which might also tie in with the unattributed sum in Enzo when the limited documentary evidence [i.e BG3-125] does not suggest these sums nor does any other contemporary material answer that question. It remains unclear whether that is an example of an undisclosed asset or something which was part of the business that the Husband transacted on behalf of others.

The evidence relating to the assets identified at BG1-3270/2-291 ‘Bhadresh Gohil Funds Summary’ and other documents [BG1-3266 (Deposits with IMM – ENZO Int Ltd)] support the conclusion that prior to June 1999 when Mr Shamutete / Mr Mutati instructed the Husband there was a fairly sophisticated offshore investment structure in place which generated the funds which went into the Enzo IMM account and potentially the Schroders Account, the Parabola Schroders account and the BNP Parabola and Miramar accounts. This does not sit easily with the statement of Mr Shamutete [1A-165 #8] that it was the husband who said he could help him ‘establish’ an offshore structure for security and confidentiality reasons or the account of Mr Shamutete and Mr Mutati that essentially they had accrued funds through gem trading which were held by their partner and that these were then placed with Citibank Switzerland before entrusting them to the husband to implement an offshore strategy to protect them from the uncertainties of the Zambian economy and to maintain confidentiality. If they already had holdings of i.e $2.297m in Botley Investment Ltd’, and others such as Millbrae, Brightspark, Naylor, Quintock Ltd, Doyle Inv Ltd, Naylor Holdings Ltd and Anglo-Irish Bank and the Bank of Butterfield what was the need for the Husband to establish offshore structures. This begs the question of what was the true purpose in handing over their affairs to the Husband if indeed this was the beginning of that relationship? The IMM letter BG1-1793 states the transactions on BG13270 are for clients not to the benefit of Bhadresh Gohil. This may be strictly accurate as they in the main refer to corporate entities. It does not confirm who the underlying beneficial owner would be. The evidence points towards the existence of structures prior to the Husband and Mr Shamutete and Mr Mutati establishing Parabola/Enzo/Miramar and these structures may have been the work of others or of the Husband. It seems improbable that Mr Shamutete and Mr Mutati immediately entrusted all their wealth to the Husband, and it seems more likely their relationship pre-dated 1999. The Fazmac enterprise would also tend to support a longer standing relationship.

The documentary trail demonstrates that Mr Shamutete and Mr Mutati were identified as the beneficial owners of the accounts with BNP Paribas and UBP and that they gave instructions for the funds to be transferred from UBP to Bank Pictet and Cie in November 2005. It seems likely that the transfer from BNP to UBP took place because the performance of the funds at BNP (certainly for Mr Shamutete) had been very poor. It is not clear why the funds were transferred from UBP to Pictet and Cie, Singapore. There were several references in the course of the evidence including by the Husband to the regulatory framework becoming stricter and the source of funds coming under scrutiny and whether this was a spur for the movement is not clear. They were also identified as the owners of Enzo Ltd, Parabola and Miramar. Prior to 2005 payments had been made on their behalf from the UBP accounts for household bills, Amex and cash. In April 2005 and June 2005 at least, Mr Shamutete received a report on the accounts. Why he has not produced other reports he was sent and why did he not question not being sent reports after the transfer of funds to Bank Pictet is a question which he was not available to answer. His silence supports a conclusion that he did not regard the funds as his to command. Mr Mutati was apparently a man of less wealth than Mr Shamutete (his bank opening documents say his wealth is greater than $5m) and his apparent lack of interest in what was perhaps 40% of his wealth is surprising, even if one were to assume he trusted his London solicitor. His evidence for the period 2005-2010 is that he trusted the Husband to open the Miramar accounts for him; he understood they had been opened and the bank knew he was the beneficial owner, that he would update him on the performance of his assets and would be shown copies of bank statements and that he was content that the Husband had the bank statements and other account records at his office in London. This again gives rise to a raft of questions not least of which would be what he thought when he saw that the Pictet and Cie statements contained far greater sums than those he had transferred (the Parabola sums were more than double the Miramar sums mixed in the account); what questions he asked in relation to the name on the account and why it was not held in the name of Miramar; whether in that five year period he ever asked for access to any of the sums or for them to be deployed on his behalf in any other way? None of these can be asked or answered.

A very significant gap in the evidence presented by Mr Shamutete and Mr Mutati relates to the provenance of all the funds which went into Parabola/Enzo and Miramar in 1999. HHJ Tomlinson’s conclusion was that their explanations that the funds were the end product of gem trading which had been funded by (in Mr Shamutete’s case) an initial $1.7m saved by him which generated $17m by 1999 through gem trading and which had been held by Mr Rozan was not credible. He said in his statement [1A-166#10] that the deposit to Schroders came from his Citibank account, that two entities were set up, Parabola and Enzo although he didn’t know why, and that the funds sent from Citibank to Schroders Enzo account were ‘shortly thereafter paid into my Schroders Parabola account and the Enzo account was closed’ and that he had forgotten about the existence of Enzo. The documents [BG1-3266] suggest that by the end of June 1999 IMM had received $5.676m from a variety of investment vehicles including a sum of $2.594m from an unidentified source which was held in an Enzo account and it would appear to be this $5.676m sum that Mr Shamutete says [1A-167#15] went into the Schroders Enzo account and onward to Parabola Schroders. Subsequently although Mr Shamutete says he forgot about Enzo, in April 2000 IMM received $1.34m from Arlingtons Sharmas [BG1-3228] and in May 2001 IMM received further sums for Enzo of $1.030m [BG1-3270] which Mr Shamutete does not refer to which is something of a surprise given the total is $2.37m.

The Merrill Lynch Parabola account was funded from an IMM Enzo account but the funds for this were transferred to Merrill Lynch on 6 January 2000 so pre-dating the transfers in of $2.37m. Mr Shamutete says he can’t recall which account funded Merrill Lynch, but it was proceeds from gem trading with Mr Rozan. The list of his business interests [1B-1428] from October 2001 which was seemingly provided to BNP Paribas as part of the ‘Know Your Client’ information and thus to support the provenance of the $5,147,096 which had been paid in gave a total value of only $2.36m. This might not have raised any suspicions for that sum but when one also adds in the fact that Mr Shamutete was at roughly the same time allegedly depositing just under $6m into Schroders and $1.7m into IMM which went on to Merrill Lynch the disparity becomes very significant. When one also adds in that the banks were being ‘told’ the funds were from established business activities rather than gem trading which became the subsequent explanation in the confiscation order proceedings the totality confirms that the banks were being misled about the true origins of the funds.

Mr Shamutete also says he paid $6.876m into a Parabola account with BNP which was the proceeds of his gem trading with Mr Rozan. He does not identify where such large sums were held prior to this. The documents show transfers in of $5.147m on 15 July 1999 and $1.729m on 22 July 1999. Given the conclusions of HHJ Tomlinson that he did not accept that the funds paid into the various Parabola accounts which were said to have derived from the $1.7m seedcorn which had grown through gem trading with Mr Rozan to $17m and thus his conclusion that Mr Shamutete and Mr Mutati were not the beneficial owners of the Parabola/Miramar accounts but that the Husband was; the absence of comprehensive documents from Mr Shamutete showing the source is a surprise. As Mr Shamutete says he was in control of the funds through Shengo/Citibank/another account/Mr Rozan his inability or unwillingness to produce those documents raises a very significant question which of course Mr Shamutete has not made himself available to answer. The absence of any documents confirming provenance and the lack of an explanation for why, when the finding of HHJ Tomlinson made it the most obvious area for evidential buttressing, supports HHJ Tomlinson’s conclusion that Mr Shamutete did not provide $17m or possibly that if he did he is unwilling to provide information which confirms it all passed through his hands because to do so would tend to incriminate himself and others including the Husband of some other wrongdoing which he is unwilling to expose himself to the consequences of. The same considerations apply to Mr Mutati.

The evidence suggests that Mr Shamutete was engaged in correspondence over the depletion [BG1-3250] and was involved in meetings with the bank [1B-1427] when the BNP funds had diminished by $1.8m due to investment losses and other drawings. This records Mr Shamutete being extremely upset (Mr Gohil was also present) and an issue arose over the bank not acting on his remittance request. This all supports the conclusion that Mr Shamutete had some interest in these funds. The same is broadly true of $2.43m introduced by Mr Mutati into BNP on 13 July 1999.

The paper trail of how those $6.876m funds introduced into BNP in July 1999 were dealt with thereafter is not in dispute in terms of where they went. The paper trail does not make wholly clear – or at least I have not drilled down into the statements to ascertain precisely what happened to all the sums but in general terms their handling seems traceable in broad terms on the balance of probabilities. It is I acknowledge conceivable – although I do not think HHJ Tomlinson judgment identifies this – that those initial sums were replaced with other sums along the way but at present it appears probable that the sums, whilst they became mixed, remained ‘intact’. Thus, of the $4,403,253 which moved from UBP Parabola on 11 November 2005 and the $2,006,178 which moved from UBP Miramar on 11 November 2005 into an account in the Husband’s name, the following represents their onward dealing (in so far as it appears relevant to this case).

Thus, of the original $6,409,431 UBP Parabola/Miramar sums they are probably located

The very significant gaps in the evidence of Mr Shamutete, Mr Mutati and the Husband after the transfer of funds from UBP to Pictet and Cie in 2005 and the apparently minimal interaction with the Husband for a period of years thereafter on balance supports the conclusion that Mr Shamutete and Mr Mutati did not consider themselves to be in a position to make much demand on the funds or to resort to legal action at that time. That would support the conclusion that the funds were not theirs beneficially or that if they were – in whole or in part – that they could not exercise control if necessary, by legal action. It is correct that Mr Shamutete at least was able to make some demands in 2006/7 (Lonhro, Imani Securities, Suresh Gupta, Lishoma) but what this represents given the Husband’s extensive deployment of these funds on his own behalf to Castlegrove and Willard and Zetland is hard to divine on the evidence before me. It may be that it represented some compromise between the Husband and Mr Shamutete to avoid open warfare or some other agreement but the use by the Husband of $1.1m for his own purposes from K-888156 and $4.4m from D888296 without any known objection from Mr Shamutete and Mr Mutati points either to their acceptance that the funds were the Husband’s to do as he wished with or that it was impossible for them to challenge him. The time when the trail is cold in documentary or other evidential terms coincides with the end of the matrimonial proceedings, the Husband’s notes of how to generate wealth and his engagement in the crimes covered by the indictments. Prior to this, although the Husband appears to have regarded the BNP/UBP funds as available to him to draw from in a limited way there seems to have been a change in or around 2005 and that thereafter he felt able to place them in his name and use them as he wished and to distance Mr Shamutete and Mr Mutati from them. This and their lack of response all further support the conclusion that it is more likely than not that the funds were known by all involved to be the product of unlawful activity and so legal action of any sort would be a form of mutually assured destruction for Mr Shamutete, Mr Mutati and the Husband. Only when legal action became inevitable when the Husband was under investigation and funds began to be restrained did legal action become viable as a last resort to try to regain the funds. Mr Shamutete and Mr Mutati’s non-engagement in oral evidence seems likely to represent the best balance available to them to assert a claim but to protect themselves from the probable exposure of unlawful or criminal activities

The Merrill Lynch account of Parabola was clearly dealt with differently to the Parabola and Miramar BNP/UBP/Pictet and Cie accounts. The source of the funds into the Enzo IMM account from which $1,539,000 moved onto the Merrill Lynch Parabola account is undocumented. The onward movement of $1,539m is documented in the redacted documents where the $165,706 disappears from the picture and which the Husband declines to disclose. The additional sum of $400,000 which joined it on 11 February 2000 comes from an Arlingtons Sharmas client account and is said to represent in $ the sum of £265,000 received from the sale of 1 Trinity Court but its most immediate source related to the maturity of an investment – which could be the £265,000 but invested by Arlingtons Sharmas although that seems an odd way to deal with client funds. Thereafter, Mr Shamutete has no dealings with the funds although they do appear in what seems to be a contemporaneous report to him by the Husband. However, all of the documentation completed with Merrill Lynch refers to the Husband being the beneficial owner of the funds and he plainly utilised them at various points for his own purposes. His explanation of his drawings being some form of informal invoicing of Shengo Holdings for works done was clearly not the truth. The evidence suggests a mixing of funds.

Drawing all of the threads together in relation to the funds claimed by Mr Shamutete and Mr Mutati it seems to me that the following emerges as the most likely explanations and I so conclude on balance.

Thus, the assets in the Willard and Sloane Capital accounts do not seem to me to be assets which the Wife can establish any claim against. The Husband has a beneficial interest in them as determined by HHJ Tomlinson – but so do Mr Shamutete and Mr Mutati albeit I cannot determine the respective shares - but they are tainted by unlawful conduct. I say this recognising that HHJ Tomlinson concluded on different evidence that they were all the Husband’s but were the proceeds of crime. On the other hand, in relation to the Parabola Merrill Lynch account, I do find as a matter of fact that it is primarily the Husband’s, it representing the proceeds the proceeds of legitimate but undisclosed business activities during the course of the marriage and is an asset available for distribution subject only to a deduction in respect of the $400,000 which at present appears to be linked to Mr Shamutete and which he may be able to establish is indeed his and is also untainted by crime.

Although she no doubt has some skills and has worked for the Husband and others, she is not the person who has established and operated Castlegrove and generated the funds. She is a cipher for the Husband who has used her like others to advance his interests. Her HMRC records do not suggest an individual functioning at the very high levels the Husband suggests. They do support her working for the Husband in his businesses for some periods of time and her report on Fazmac makes clear she was operating under the Husband and Mr Shamutete’s direction.

Castlegrove/Sunfor. The evidence that I have referred to previously demonstrates on the balance of probabilities that it is the Husband who has been the driving force behind Castlegrove and before that Castle Grove Consulting and that it is not Rekha Yadav who has generated the assets of Castlegrove or Castle Grove but the Husband. The submission that Rekha Yadav relinquished ownership in December 2019 to KGBFYOC Foundation has not been the subject of any evidence other than the production of the register of shareholders. Given the value of the shares in Castlegrove ought to be in excess of several million dollars given the underlying assets and the evidence of the Husband’s involvement as beneficial owner it plainly creates far more than a prima facie case and cries out for an explanation from the directors of Castlegrove to support the assertion that there is now no familial interest. I reject that case.

The most significant assets now beneficially owned by Castlegrove are the Julius Baer account and 88 Sydney St. The evidence trail in relation to Sydney Street was a complex one, although having spent some considerable time evaluating the documentation it does appear that the transaction in 2001 did not result in the beneficial ownership of the property ending in the hands of the Husband through the vehicle of either Hempton’s or Castlegrove/Fougeres. It is not entirely clear what the purpose of the transaction was in 2001 but the totality of the evidence supports the conclusion that Mr Almquist continued to reside there and that it was only in 2004 that beneficial ownership passed from him with the proceeds of the sale which Castlegrove provided then passing to him – less two very significant deductions for tax issues of which at least £234,000 passed back to Castlegrove and were held in a Pictet and Cie account [1B -1204].The device which was used to shield the true purchaser involved the creation of a front in the Fougeres Trust which I am satisfied involved the Husband using Mr Sodhi’s identity without his knowledge to pursue the device which ultimately was designed to secure ownership of the property with the possibility of doing so at a price very much reduced by the tax retentions which accompanied it. This was at least £234,000 which returned to Castlegrove and may have been more as the end result of both the corporate and personal tax liabilities is unclear.

The source of the funds was a loan taken by Castlegrove with Julius Baer but this must have been backed by sums held in other Castlegrove accounts and the redacted statement suggests the loan was probably cleared by the end of 2004. Although the purchase post-dates the separation and indeed the consent order the funds which were used to affect the purchase (or back the loan and repay it) must have roots in the business activities of the Husband in the preceding years. Given the separation and the intense scrutiny of the Husband in this period I conclude it is probable that his business activities in this period were limited both by his pre-occupation with the breakdown of his family and the litigation but also by the fear of discovery and so when one sees the Castlegrove Julius Baer account balance of around $3,298,093 as at July 2004 I would expect (and find on a balance of probabilities) this broadly reflected the then proceeds of a balance from April 2002 subject mainly to investment gains but probably not significant further post-separation accruals from business. The headline purchase price of Sydney Street was £1.45m (about $2.6m) but of this at least £234,000 was returned and it may be that £504,000 was returned to Fougeres/Castlegrove.

There is one question mark over the source of the funds which is that Castlegrove were invoicing Parabola/Miramar and others substantial management fees during this time. Some of this seems to be legitimate as Castlegrove was billing Mr Almquist’s corporate entity for management services but to the extent Castlegrove was billing Parabola/Miramar for managing their accounts when the funds from those may have been the proceeds of unlawful/illegal conduct there arises a possible issue of taint. The billing required the funds to be remitted to the Castlegrove account with ECS at the Isle of Man bank and it may well be that the Husband was accessing these funds by cash withdrawals of the sort documented and that these payments did not contribute to the Castlegrove Julius Baer account which funded the purchase of Sydney Street but rather funded the Husband’s living expenses. Absent the entirety of Parabola/Miramar and Castlegrove’s banking records back to 2003/2004 which document which accounts paid the sums to Castlegrove and how they then progressed through Castlegrove it is impossible to trace precisely any role those contributions to Castlegrove paid from potentially tainted Parabola/Miramar funds might have played. I conclude on balance that the purchase of 88 Sydney Street cannot be shown to be contributed to by tainted funds. I note that HHJ Tomlinson identifies at paragraphs 176 and 179 some transactions relating to the origins of the Julius Baer Castlegrove account and initial deposits emanating from ECS and Rekha Yadav’s Lombard Odier account and it may be that these indicate the shifting of funds from the Husband’s undisclosed Lombard Odier account and from other Castlegrove accounts to form the sum which is later seen in July 2004. If further evidence is available in MLA material which shows the payments made to Castlegrove came from BNP/UBP funds that might require a further accounting to be undertaken.

At paragraph 184 of his judgment, HHJ Tomlinson concluded that 88 Sydney Street was acquired with the proceeds of crime. The CPS in their closing submitted that this was an assumption-based conclusion rather than a determination on the evidence and I think that must be right. The totality of the evidence relating to the acquisition of 88 Sydney Street supports the conclusion that the transfer in 2001 did not transfer beneficial ownership away from Mr Almquist but rather that took place in October 2004. The funds for the purchase originated with Castlegrove including a loan which must have been secured with other assets as no charge was taken against the property. In so far as Castlegrove/Sunfor contend that the conclusion of HHJ Tomlinson was wrong that it was purchased using ‘proceeds of crime’ (insofar as that expression means monies emanating from proven criminality) that may be right, but I express no view on how the assumptions are properly to be applied. For the purposes of this hearing, I am satisfied on the balance of probabilities that it was purchased with funds that had accrued to Castlegrove from a variety of sources including from its variant Castle Grove Consulting Inc which was the Husband’s vehicle from 1999 (and which referred Mr Shamutete and Mr Mutati to BNP) until Castlegrove Inc was established in the BVI in 2002. On the balance of probabilities – and here I may depart from the conclusions of HHJ Tomlinson (although again I am not entirely sure whether his conclusion was assumption based or pure evidence based and my sense is it was assumption) - Castlegrove was established in the midst of hotly contested financial remedy litigation and so the probable reason for its creation was to break any possible trail that the Wife might have located and to shift operations to a new entity but which in essence carried on the same business that Castle Grove Consulting had – receiving referral fees, billing clients for investment/corporate management services provided by the Husband. It seems that there was some payment of tainted funds from Parabola/Miramar to Castlegrove and so to this extent Castlegrove received tainted funds, but the evidence demonstrates that Castlegrove was a vehicle for the Husbands legitimate business activity as well and I conclude that the funds which purchased 88 Sydney Street were based on funds generated by legitimate activity prior to 2002. The evidence I have considered, including that relating to Castle Grove Consulting Limited, points to Castlegrove not being solely concerned with laundering but to have a purpose in processing the Husband’s legitimate income from his other activities prior to 2002. Whether it came to be used at some point solely for laundering proceeds of crime is not an issue for me to determine as my focus is on the whether assets generated prior to separation can be traced into current assets. This conclusion and that of HHJ Tomlinson are not necessarily inconsistent with each other I don’t think but if they are I prefer my analysis.

Thus, the purchase 88 Sydney Street was made using Castlegrove, on balance with legitimate funds acquired by the Husband prior to 2002, it is beneficially owned by the Husband as determined by HHJ Tomlinson and according to my own analysis and it is available for distribution to the Wife.

Following the purchase of Sydney Street, the Castlegrove Julius Baer account received transfers in from the Husband’s Pictet and Cie account in the sum of $725,000 on 17 November 2005 and $365,000 on 2.6.2006. Those represent funds which were part of the jointly owned BNP/UBP funds originating in July 1999 and which are the product of unlawful activity and so the current value of those funds in the Castlegrove Julius Baer account are tainted and not (primafacie) available for distribution.

Raj Classic appears to have been funded by Castlegrove in 2006 and is held in the name of the Husband and the Third Respondent. The evidence does not make entirely clear what the overall purchase price was – the transactions recorded on 21 June 2006 in the Chronology which span June – October 2006 total $72,120 which seems low given the property was valued 10 years later at £793,576. I note that HHJ Tomlinson also refers to “some part of $147,140” being used to fund its purchase but I have been unable to locate documents showing the full purchase price.

There is no evidence that the Third Respondent made any actual contribution and in all likelihood and as found by HHJ Tomlinson the true beneficial owner is likely the Husband. The source of the funds in Castlegrove is unclear. By the time of the purchase the Husband was involved in criminality which is covered by the indictment and the purchase was it seems effected from funds emanating from the Julius Baer account which by this point had received the $1,090,000 from Pictet and Cie. However, as the Julius Baer account held $3.298m in July 2004 of which a maximum of $2.18m appears to have been used to purchase Sydney Street, a balance would have remained which would have been available to purchase Raj Classic and so this could have been purchased with legitimate funds which could be traced back to 2002.

The fact that the Castlegrove Julius Baer account held a balance of £3,085,206 as at 27 September 2016 – after the purchase of Sydney Street in October 2004 and Raj Classic in 2006 which would have seemingly used a very significant part of the $3.298m legitimate funds which existed in July 2004 gives rise to an issue over the source of those funds both in terms of whether they represent funds which date back to the marriage but also whether they are tainted. The sum of $1,090,000 is identifiable as arriving in November 2005 and June 2006 but the remainder is not. HHJ Tomlinson concluded that the sums in that account represented the Husband’s benefit from general criminal conduct. Subject to it being possible to determine with precision the sums used to purchase Raj Classic and their origins it seems probable that the Castlegrove assets which have their roots in the marriage and are beneficially owned by the Husband but untainted by crime are:

In respect of the sums held in the Slavonian Finance account I am satisfied Slavonian is the successor to Odessa and that the third respondent had no interest in this, and the Husband was the beneficial owner of the entirety. The funds which transferred to the Slavonian Finance account from Odessa were it seems likely, given the absence of a source of funds, to have come from another undisclosed pre 2002 asset – possibly the $165,700 removed from the Enzo funds which funded the Merrill Lynch account but they could have come from many other possible sources including Soc Gen/Brown Shipley or Imxal or Lombard Odier. I am satisfied they were the proceeds of legitimate business activities by the Husband prior to the separation.

The Third Respondent’s interest in Highlander is not in issue. I have dealt with her potential interest in Raj Classic in my consideration of the Husband’s provision of the purchase funds through Castlegrove.

The evidence as to whether the Husband began engaging in criminal activity prior to his activities with Mr Ibori and others connected with the extraction of funds from Nigeria is limited. The Indictment identifies 2005 as the commencement of the Indictment criminality. A payment of $4.78m went via Parabola Schroders in August 2005 and an Arlingtons Sharmas account was used from June 2005 through to 2006. As the Husband now denies that he was guilty of the crimes for which he was convicted by a jury and of the crimes to which he pleaded Guilty, his own evidence in this area is of even more limited assistance. His own evidence is that he first became involved with Mr Ibori in 2005. He gave no evidence as to what drove him to crime because he denies any crime. Had he accepted that he was guilty and given an explanation for what motivated him (and had that been a credible one) some dividing line might have been discernible between his criminal activities and his commercial/legal activities. However, on his own account there is no clear blue water between the innocent and the guilty. One inference from this could be (and the CPS submit it is the proper one) that the continuum that exists is one of criminality extending into the 1990’s, through to 2005 and thereafter until the Husband ceased his activities following his arrest. The CPS submit that the manner in which the realisable assets were handled down the years is indistinguishable from the manner in which the indictment assets were handled and that the quacking duck analogy can properly be applied. The CPS produced a Schedule of the realisable assets identified in the Confiscation Order and of those assets only:

The Wife submits that she is not bound by the findings of HHJ Tomlinson in any event as to whether the realisable assets represent the proceeds of crime and that in respect of many of them, they were the product of the application of assumptions rather than findings of fact based purely on the evidence. In addition, she points to the paucity of evidence deployed in support of the CPS case that the assets to which she lays claim are in fact the proceeds of crime. Albeit the determination was in a somewhat different context Mr Sirikanda relied on the approach of Males J in Namli-v-SOCA [2013] EWHC 1200 (QB) when very extensive and varied evidence was deployed by SOCA in support of its case that the court could be satisfied on the balance of probabilities that funds were the proceeds of ‘unlawful conduct’ (i.e. a crime under the law of the UK or a crime under the law of another jurisdiction if committed there).

Although some professionals may be dishonest to the core and intend to act dishonestly within their profession from the get go, others may well be lured into criminal conduct; some with their eyes wide open and others through naivety. In this case, there was no obvious moment in time for the Husband to move into criminality as is occasionally seen when a professional falls on hard times and is lured by the prospect of easy money. The financial crash of 2008/9 was well after the Husband’s criminality began. Although to the outside world his financial position may have been presented as precarious in 2002, this was not the reality or at any visible time prior to or subsequent to that and so there was no visible and compelling financial need to embark on criminality. It may be that his introduction to Mr Ibori’s circle and Mr Ibori himself held out the prospect of such large benefits that his greed got the better of him and that although he was doing reasonably well beforehand the lure of millions was too much. My conclusions in relation to the source of the BNP/UBP Parabola/Miramar funds is that they must have been the proceeds of unlawful or illegal activity of an undetermined nature and the Husband’s propensity to bring cash onshore without declaring it for tax purposes would all support the conclusion that the Husband had been prepared to act unlawfully when it suited his purposes. However, given the evidence of his engaging in legitimate business in parallel, it is clearly not appropriate to infer that all the Husband’s activities prior to 2005 were also criminal in nature. It may be that he had engaged in unlawful and criminal conduct of some form down the years and the Ibori monies were simply another step down that road albeit a step then involving very considerable sums. The evidence in relation to Mr Shamutete and Mr Mutati was considered in some depth by HHJ Tomlinson and he was not persuaded that their explanation of their wealth accrual was established, and he noted that on their own accounts they may have been committing criminal offences under the laws of Zambia, but this was not a finding. HHJ Tomlinson concluded that Mr Shamutete and Mr Mutati had not established that the Parabola/Miramar funds were theirs for a number of reasons including the lack of a credible explanation for the origins of the monies by Mr Shamutete and Mr Mutati which has a domino effect on the funds in Parabola and Miramar; the coincidence of large sums arriving at a time when James Ibori became governor; the similarity in the accounts and means by which the Ibori monies were laundered with the way the Parabola and Miramar monies were used. However, another explanation for those funds is they were the product of unlawful or illegal behaviour of their own and the Husband unconnected with Mr Ibori which the Husband then set about legitimising through the Enzo/Parabola/Miramar structures.

The impact of the litigation between 2002-2004 clearly reduced the Husband’s resources significantly. The Odessa funds were expended and further sums from Castlegrove were deployed to fund the legal costs. In addition, as I have recorded earlier it seems probable that the fallout of the separation and the litigation had an impact on the Husband’s ability to conduct his activities beyond Arlingtons Sharmas; a combination of laying low, his energy being focussed on fighting the Wife and lack of time or inclination. Thus, when he emerged from this in 2004 it seems probable – and is supported by his own Notes from 2005 – that he was eager to get rich quick. That seems likely to have acted as a catalyst for the Husband becoming involved in the more extensive criminality of the indictments but also in taking over the Parabola/Miramar funds when they moved to Pictet and Cie. What the Husband’s ultimate plan in respect of the balance of those funds was cannot be established. The intervention of the criminal investigation and the restraint of funds mean the trail of activity goes cold. Whether he planned to deploy all of those funds to his own advantage or to share them to some degree with Mr Shamutete and Mr Mutati, I cannot determine. Although past performance can never be an entirely reliable guide the trail over the period 2005 would suggest he would do as he chose with them but might relinquish some parts if the situation required him to do so.

It is a difficult trail to follow with the Husband, but the conclusion of best fit and on balance of probabilities is that the Husband’s descent into the indictment criminality in money laundering, fraud and forgery was preceded by a lengthy progression from legal practice, into freelance investment, to freelance advice/consultancy which came to include acting for (amongst others) Mr Shamutete/Mr Mutati, engaging in tax avoidance and tax evasion and extending his reach into activities which were either unlawful or criminal and then to processing those funds alongside legitimately obtained funds, engaging in wholesale non-disclosure and concealment of assets in 2002-2004 including manipulation of evidence, moving to taking advantage of his own clients such as Mr Almquist on the sale of 88 Sydney Street and to forging documents to hide his own acquisition in 2004 and thus onwards to the obvious criminal conduct which he was convicted of and pleaded guilty to. The totality of the evidence clearly supports the conclusion that even whilst the Husband was engaged in criminal conduct there were elements of ‘true’ legal work through Arlingtons Sharmas which was of benefit to the Husband as it provided the legitimate cover for his other activities and which he would then and does now seek to deploy to provide an innocent explanation to all his activities.

R v Ginwalla [2005] EWCA Crim 3553 at [20], supports the court being able to approach the evaluation of the reach of criminality and the tainting of assets by means of a broad assessment rather that a detailed tracing exercise. On the evidence before me such a detailed exercise would not be possible in any event because the material would have to reach back into the 1990s and would require the availability of evidence relating to undisclosed assets which simply will never be available and for individuals to give evidence who will not or cannot. Thus where it is not possible to draw conclusions based on specific evidence I must inevitably undertake a broad assessment incorporating what I can from HHJ Tomlinson’s conclusions and what I can discern to determine what is tainted and what is not and to determine what the value of the assets were and are now.

There is much that I agree with in HHJ Tomlinson’s analysis – although there are differences of emphasis which I think most likely arise from the different legal frameworks and evidence bases which we have worked from. I am not sure to what extent some of the documentation before me was before HHJ Tomlinson; there is so much, and its presentation is rather fragmented it is hard to know. If I differ in some respects from his conclusions having undertaken my own analysis of the evidence which is before me that is most likely because I have heard from the Husband and so have an evidential picture on which I feel able to reach conclusions without the assistance of the POCA assumptions.

I am unable to determine clear dividing lines in time of when the Husband first engaged in activity which amounted to a crime. His character suggests he does not respect normal legal boundaries – perhaps he does not recognise normal boundaries should apply to him. I am not persuaded on the evidence that I have seen that I can or should infer that he was laundering funds for Mr Ibori or any other individual prior to 1999 or between 1999-2005. The dates on which the initial large transfers into Parabola and Miramar are in 1999 and if they were the proceeds of Ibori linked criminality it would have had to commence prior to or almost immediately when he became Governor. More probable explanations emerge from the evidence I have heard which is that Mr Shamutete, Mr Mutati and the Husband had their own scheme which generated the large sums which funded BNP/UBP. The CPS have not sought to actively prove a case against the Husband alleging other criminal activity pre-2005 which it would have been open to them to do (see SOCA -v- Namli) but have relied on the judgment of HHJ Tomlinson and inferences from the way the Husband managed the funds. The fact is that the police enquiry led to indictments which dealt with criminal activity from 2005 onwards and the evidence before me as to the Husband’s mixture of legitimate and illegitimate activities do not satisfy me that the CPS submission that all the assets now identified can be inferred to be the product of criminal activity is one, I should accede to.

I do not consider that the way the Husband managed funds provides an inevitable inference that they were unlawfully generated or the proceeds of money laundering. The insight from the Odessa transactions alone is that the Husband was capable of generating substantial investment gains and of keeping them in a way so as to avoid or evade tax or discovery by the Wife. His early activities with Odessa seem to me in the light of all the evidence to illustrate that the Husband was already well-versed in the arts of disguise through offshore structures and that these are likely to have become more sophisticated as time passed and he became more expert in his craft. That he also chose to put that expertise to criminal use in certain respects does not mean that everything he did was criminal. In respect of assets, he generated from scratch after 2004 and which are not connected to the marriage the judgment of HHJ Tomlinson is determinative. In respect of assets generated prior to separation or which derive from such assets, my conclusion is that, save in respect of the BNP/UBP funds, which the totality of the evidence including their subsequent handling of demonstrates they are tainted and that HHJ Tomlinson’s conclusions hold good, the Husband’s 2002 assets are not proven to be the proceeds of criminal activity. To the extent that those UBP/BNP funds infect other current sources, they are affected and an apportionment – in broad ‘Ginwalla’ terms is required.

Drawing the threads together the following therefore represents the asset base in 2002 in terms of legitimately acquired assets untainted by crime and its current location and value.

In respect of assets which the Wife makes a claim against but which I conclude do not have roots in the marriage or which represent assets which are tainted by crime they are as follows:

The Wife submitted that in 2002 there were marital assets which were valued at least £10m then and (by Indexation) valued at £18,198,925 now. My conclusion set out above is that the following assets existed then

The total value would appear therefore to be not less than $9,072,000 and the £590,000 in Odessa. I appreciate the acceptance of $4m for the Lombard Odier account requires an acceptance of the figure given by Mr Sud but given I am satisfied overall that there was a substantial sum in this account and that there are other undisclosed assets of a substantial nature I do not consider there is any injustice to the Husband or the CPS in adopting such a figure. I take into account in attributing this broad valuation also that £15,700 disappeared into Hemptons although I have not accepted the wife’s submission that I should identify that as an undisclosed asset valued at $2m. One can either seek to name a sum or remain in the territory of a substantial asset measuring 7 figures. It seems to me preferable to identify a figure – even if one has to recognise that it is rather rough and ready. The Wife therefore has succeeded in confirming that there was substantial material non-disclosure by the Husband in 2002. In addition to the non-disclosure of those assets is the non-disclosure of the unknowns such as Brown Shipley/Soc Gen and Imxal, his various income streams and the non-disclosure of his share in the Parabola/Miramar funds which went to BNP/UBP. Whether there was further non-disclosure in relation to other funds which formed part of the total of near $20m that Mr Shamutete and Mr Mutati assert were theirs from gem trading is a matter I do not need to address.

The current assets which are owned by the Husband beneficially and which are not tainted by the proceeds of crime are as follows. I include those which I found existed in 2002 and which remain undisclosed. Given the Husband has had no visible income for the last 17 odd years it seems more probable than not that he has been drawing on those hidden assets in order to fund his living expenses. To what extent those hidden assets are held in the names of family members or entities this cannot be determined but I do not accept that his living expenses have been funded by others (save as nominee holders of his funds) as he clearly has undisclosed assets available to him.

The Wife’s primary case is that the assets she identifies should be transferred to her as she maintains that the Husband has other unidentified and unfrozen hidden assets and that in any event there should be an adjustment in her favour from equal sharing because of the Husband’s conduct and because of her additional contributions to the care of the children over the years since separation and/or as compensation for the impact on her of having to fight for 23 years rather than progress her life and her earning capacity.

If the asset base in 2002/4 was not less than $9,072,000 and £590,000 the wife’s then entitlement based on sharing principles would have amounted to $4,536,000 + £295,000. Clearly, it is likely she would have been awarded more than 50% given the conclusion would have been that this represented the baseline and there was likely further significant value in undisclosed assets. On my valuation of the current asset base at £6,663,172 (identified) + $4m (still undisclosed) {£3m at today’s exchange rate} of the current total of £9.663m her baseline entitlement would be £3.331m + £1.5m.

The Wife’s alternative case (depending on whether the court concluded the assets are tainted either wholly or to a very substantial degree or that the asset base in 2002 was smaller than she submitted) calculates her needs-based case as 4-bedroom home worth £3.2-3.5m (particulars at Bundle 1B:, page 1739-1751) and Duxbury Fund of £2,667,000 (Footnote: ³). The lifetables in “At a glance” suggests that the applicant has 26 years and 7 months left to live.

The Wife’s needs relatively generously assessed are somewhere in between the Wife’s case and the CPS

The starting point of equality and sharing of the matrimonial assets would remain a valid starting point but in the circumstances of this case it does not remain a valid end point. Adjustments are required to take into account the following:

Given that I am satisfied that the Husband continues to have access to hidden assets which are likely to be substantial – in the broadest possible terms they are likely to run to 7 figures – his needs will continue to be met from them and so any adjustment in the Wife’s favour will not impact on his ability to meet his needs. As he has chosen not to admit the existence of undisclosed assets in 2002 I have been unable to determine what became of them and I acknowledge the possibility that they have been spent or otherwise depleted or might form part of the other assets covered by the Confiscation Order but the totality of the evidence satisfied me on balance that the Husband still has access to other assets both because he is able to meet his needs but also because he is such a sophisticated operator that the hints of other assets are likely to represent real and substantial ones available to him. In respect of identified funds, they would not be of any benefit to him anyway as they would fall to be confiscated in any event. However, there is the public interest to be considered in ensuring that criminals’ assets are confiscated to benefit the state and that interest in the Husband retaining some of his assets for confiscation purposes must be taken into account. If the assets are tainted a very strong case based on the sort of argument referred to in CPS -v-Richards would have to be established.

The Wife says it is in this category given:

Given my findings in relation to the extent of the assets which derive from the husband’s legitimate activities prior the breakdown of the marriage, the Wife does not need to seek an order for distribution of tainted assets to meet her needs.

In a case which is as unusual as this the determination of the balance of adjusting the parties’ shares of the assets to reflect the husband’s conduct and the compensate the Wife whilst also weighing in the balance the public interest in meeting the Confiscation Order is, it seems to me, very much an art rather than a science. The Husband’s conduct is at the highest end of the scale in terms of dishonesty and its consequences. The Wife is now nearing retirement age and has come through the last 23 years with health problems but financially she is still afloat. Given my conclusions on the assets which the Wife sought orders in respect of and the other assets which are subject to the Confiscation Order, the marital pool of identifiable untainted realisable assets of around £6,663,172 compared to the realisable assets of £27,967,337.48 amounts to a modest 23.82%. If the Wife were to receive the entirety of that pool of assets the Crown would still receive £21m odd and the Wife would only be receiving about 68.5% of the total of the marital assets assessed at £9.663m.

In addition to those assets, the Wife will also retain the £170,000 which she received under the original order and when this also is added into the total matrimonial pool (increasing it to £9.833m) an award of £6,663,172 plus her retaining that £170,000 gives her a total of £6,833,172 or about 69.5%.

As the impact of an order for the Wife to receive more than the identified untainted assets of £6,663,172 would in effect mean an order against tainted assets, which I do not consider to be justifiable on any needs basis, the order that I will make is that the Wife should receive the entirety of the assets identified and set out above which will give her around 69.5% of the total marital pool of assets including the lump sum she already has in her possession. Although had the available asset base been somewhat different she might have secured closer to 75% or 80% based purely on the adjustments which could be justified by conduct and compensation. It seems to me that 69% is within an acceptable range and properly reflects the actual asset position. She might have reached 100% of the assets allowing for the court’s conclusion that the Husband has substantial undisclosed assets but as the $4m Lombard Odier asset is not a realisable one I prefer to make an award which is capable of being met from identified and realisable assets.

The sum I have reached is built on the application of the sharing principle, adjusted by reference to conduct and compensation and incorporates the totality of the section 25 exercise. The sum the Wife is entitled to exceeds my evaluation of her needs and in fact exceeds her own evaluation of her needs. It takes account of the parties’ income and earning capacity, their needs and their assets.

The husband’s application for downward variation of periodical payments is refused.

As both the Castlegrove Julius Baer account and the Merrill Lynch account will likely be subject to the receivership in respect of the balance which remains the husband’s post marital acquest or which Mr Shamutete might argue over in respect of the possible proceeds of sale of his flat those accounts might be subject to a charge – either in respect of a specific sum or a percentage of the total.

In respect of the real property a property adjustment order will be made in respect of 88 Sydney Street.

In respect of the appropriate orders in respect of Raj Classic and the other bank accounts held offshore, further consideration will need to be given to what orders should be made.

I acknowledge that some of the calculations above are broad brush (or rough and ready),but I consider the advantages in finality terms more than offset any disadvantage in inaccuracy of arithmetic, exchange rate, tracing of precise sums through accounts or otherwise.

Many of the sums identified were long out of date and I acknowledge this may affect the calculation made. My intention is that the assets I have identified should be the subject of the order rather than the sums set out and where deductions need to be made to reach the untainted and realisable asset of the Husband consideration will have to be given to how that is to be implemented.

Given my conclusion that there are hidden assets available to the Husband, I do not consider it appropriate to make any recommendation in respect of any reduction in the Confiscation Order to reflect the award made to the Wife. He may be able to make his own application for variation under section 23 POCA (formerly a Certificate of Inadequacy) but if not, as for any defendant with hidden or untraced assets, it will be the Husband’s choice whether he is prepared to reach into those assets to meet the balance of the Confiscation Order or whether he will choose to serve a period of imprisonment in default (albeit the balance of the order would remain payable even after service of that term).

Given the issues surrounding the implementation of the division of assets that I have determined it seems likely that a further hearing will be required to finalise the scheme of the order although if the parties are able to agree an order, I will consider that.

That is my judgment.