This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE PEEL
Between :
TR | Applicant |
- and - | |
ST | Respondent |
Rupert Chapman (instructed by Michelmores LLP) for the Applicant
The Respondent in person
Hearing date: 2 July 2026
Approved Judgment
This judgment was handed down remotely at 10.30am on 9 July 2026 by circulation to the parties or their representatives by e-mail.
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MR JUSTICE PEEL
Peel J:
This is an application dated 30 April 2026 for the High Court to issue a letter of request to be sent to the judicial authorities of a member state of the European Union (“X Country”) for a representative of the corporate trustees of an offshore trust registered in X Country (the Trust) to produce specified documents relating to the Trust. The applicant is the wife (“W”) in financial remedy proceedings. The respondent is the husband (“H”). W was represented by Counsel, and H appeared in person.
The brief background is that the parties started living together in 2006, married in 2011 and separated in 2023. Both H and W are in their 40s. They have two children.
The FMH is a property in the South West of England. It is legally owned by a company which in turn is owned by the Trust. According to H, and supported by a letter dated 26 May 2025 from the Trustees, (i) H has no beneficial interest in the property, but is entitled to occupy it rent free and (ii) W has no beneficial interest, nor does she have any occupation rights. No document governing H’s occupation (whether a tenancy, licence to occupy or similar) has been produced to confirm the position, but I have the clear impression that H expects to be able to occupy it for as long as he pleases. The value is in excess of £400,000.
At some point after separation, W, at H’s instigation, moved out of the FMH, and moved into another property owned by the Trust under a tenancy agreement until conclusion of the financial remedy proceedings.
H issued a petition for divorce in 2024 and the conditional order was made on 25 September 2025.
On 23 September 2025, W applied in Form A for financial arrangements. In the Form A, she specifically referred to properties owned by the Trust.
Forms E were exchanged on 9 December 2025. W deposed to negligible resources. H similarly deposed to negligible resources. He said this about the Trust in Box 2.14 (Capital: Other assets):
“B Company Limited (Reversionary interest only). I am with my siblings a beneficiary in the above dormant holdings company, which is a reversionary beneficiary of the Trust. The company is dormant and neither it nor any of my siblings have received provision from the Trust since it was created”.
The only documents shedding any light on the Trust are (i) the Trust Deed and (ii) an Organogram provided by H’s solicitors.
From the Trust Deed one can see the following:
The Trust was settled in X Country in 2008 by H’s late father.
The beneficiaries (Schedule 4) are A Company Ltd and B Company Ltd, both of which are registered in another offshore jurisdiction outside the European Union.
The Protector was H’s father. Although no deed of change has been supplied, it appears the current protector is Mr Y, a business associate of H’s late father.
The Trust is subject to the law of X Country.
The Trust is fully discretionary as to capital and income, including in respect of properties owned by the Trust.
According to the organogram:
The current corporate trustees are a Law firm based in X Country.
The “Principal” beneficiary is H’s mother via A Company Ltd
The “Secondary” beneficiaries are H and his siblings, via B Company Ltd.
There is a third series of arrows which does not identify beneficiaries but leads to, inter alia, a company based in X Country, C Company Ltd, which owns the FMH.
It is, or may be, of note that the reference to “Principal” and “Secondary” beneficiaries does not appear in the Trust deed.
No other documentation is provided; no letters of wishes, appointments of Protectors and trustees, accounts, explanation of structure, schedule of distributions or loans to beneficiaries and so on. According to W, H would be able to access funds if he so requested, has influence over the trustees and is deliberately concealing the true position from her and the court. She says the Trust is a resource. Although no documentary evidence of trust assets has been produced, H told me that it owns 48 mortgage free rental properties in this country.
On 23 December 2025, W’s solicitors served a questionnaire on H. H responded (belatedly) by saying in respect of the Trust that “I have no documentation relating to the trust in my possession”.
At the First Appointment on 13 January 2026, at the First Appointment the District Judge ordered as follows:
“The parties shall send to the Trustees of the The Trust by 4pm on 23 January 2026 a letter requesting the documents set out below, which shall be provided by 4pm on 10 February 2026. The letter shall be prepared by the applicant’s solicitors and sent by the respondent’s solicitors. The letter shall request from the Trustees the following information and documents in respect of the Trust:
a. any deeds of appointment, deeds of variation or deeds of advancement relating to the Trust;
b. any deeds dealing with the appointment and retirement of Trustees;
c. a copy of any letters of wishes;
d. copies of the completed and approved Trust accounts for the last three financial years;
e. a schedule authenticated by the trustees setting out all distributions and appointments made to or on behalf of the beneficiaries with documents in support; and
f. copies of the business accounts (or equivalent) for the last two financial years for A Company Limited, B Company Limited, C Company Limited, D Company Limited, E Company Limited and F Company Limited.”
Plainly, the judge would not have made that order unless he thought the information was required. Equally plainly, in my judgment, he was correct to do so.
The joint letter was duly sent to the trustees on 27 January 2026, followed by a chasing letter on 18 February 2026. The trustees did not respond.
On 30 April 2026, W applied for the issue of a letter of request. The application was referred to the High Court and listed before me.
Following an unsuccessful private FDR, on 11 May 2026 H applied to the local family court for case management directions. As I understand it, the directions sought in the application had not been agreed with W. Although the application indicated that it should be dealt with at a hearing, a judge considered the application on the papers that day, and approved the order which among other things provided for a final hearing listing, s25 statements, evidence from H’s mother and updating disclosure. It is not clear whether the judge was made aware of the outstanding letter of request application. On the basis of what I have heard, the case management order should not have been made without hearing from W’s lawyers.
On 18 May 2026, W applied to set aside the directions order made on 11 May 2026. On 19 May 2026, the District Judge suspended the case management order and listed a further case management hearing before him on 14 September 2026. In my view, the order which was made on 11 May 2026 should be discharged and fresh directions should be considered. That, however, will be a matter for the judge on 14 September 2026.
On 2 June 2026, H emailed the Protector of the Trust, Mr Y, asking him to obtain the required documents from the trustees. No substantive response has yet been received.
Completing the relevant chronology, on 30 June 2026 the corporate trustees, replied to the joint letter sent in January. They said that “The Trustees are.….. neither obliged nor authorised to recognise the request as framed. They are not in a position to disclose the requested trust documents, accounts, or schedules absent a lawful basis requiring such disclosure”. They assert that H has no entitlement to require disclosure of documents, that the Trust deed contains a confidentiality clause, and that under the law in X Country disclosure is not permitted subject to the trust instrument and court order. In fact, the confidentiality clause of the trust deed says that the trustees “shall not be bound to disclose” documents which on a plain reading is not as prohibitive as suggested by the trustees. That being so, I am not persuaded that the law in X Country (as asserted by the corporate trustees) prevents the trustees from disclosing documents to H. I regard this letter as somewhat unhelpful.
This application
This is not a case where there are ample non trust assets against which W can make a claim. On the face of it, there are none. H’s case, set out in an open offer, is that W should receive nothing, because there are no assets. The Trust, and H’s potential ability to access it as a resource available to him, is therefore central to the case. The test as set out in Charman v Charman [2005] EWCA Civ 1606at para 13 is: “…whether the trustee would be likely to advance the capital immediately or in the foreseeable future”. The court needs the relevant information to enable it to determine whether that is, or is not, the case.
At para 51 of HO v TL [2023] EWFC 215 I suggested the following approach to trust issues in financial remedies cases:
“I approach the legal principles as follows:
i) The test as set out in Charman v Charman [2005] EWCA Civ 1606 at para 13 is: “…whether the trustee would be likely to advance the capital immediately or in the foreseeable future”.
ii) The court brings “a judicious mixture of worldly realism and of respect for the legal effects of trusts, the legal duties of trustees and, in the case of off-shore trusts, the jurisdictions of off-shore courts" (per Sir Mark Potter P in Charman v Charman (No.4) [2007] 1 FLR 1246, CA at para 57).
iii) “The question is not one of control of resources; it is one of access to them”; per Lewison LJ in Whaley v Whaley [2011] EWCA Civ 617 at para 113.
iv) The court must look at the facts realistically; Whaley (supra) at para 114.
v) “The court will not put undue pressure on trustees to exercise their discretion in a particular way, but may frame an order which affords “judicious encouragement” to provide one spouse with the means to comply with the court’s view of the justice of the case: Thomas v Thomas [1995] 2 FLR 668”; Whaley (supra) at para 114 ibid.
vi) Continuing at para 114, Lewison LJ, referring to what was said in Thomas, stated that what would not be undue pressure would be if:
a) The interests of the other beneficiaries would not be appreciably damaged; and
b) The court decides that it would be reasonable for the husband to seek to persuade trustees to release more capital to enable him to make proper financial provision for his former wife.
vii) In the same paragraph, Lewison LJ added that “…if the court makes such an order the trustees are not bound to comply with the husband’s request; but it is plainly proper for the trustees to take it into account…and commonly it will be decisive”, citing Lewin on Trusts 18th ed.
viii) The court is not bound to accept the say so of trustees; SR v CR [2009] 2 FLR 1083 per Singer J at para 60.
ix) Although overseas trustees may reasonably wish not to submit to the jurisdiction of the court, “it is hard to see why participation by the trustees in a helpful or meaningful way in the court’s inquiry qua witness could be construed as a submission to the jurisdiction”; BJ v MJ (Financial Remedy: Overseas Trusts) [2011 EWHC 2708 (Fam) per Mostyn J at para 21.
x) The ordinary rule of evidence is that the court is entitled to draw adverse inferences from the absence and/or silence of a witness who might be expected to have material evidence to give on an issue on the action; Wisnieswki (a Minor) v Central Manchester Health Authority [1998] EWCA Civ 596, as applied by Moor J in R v B [2017] EWFC 33. In Manzi v King’s College Hospital NHS Foundation Trust [2018] EWCA Civ 1882 Sir Ernest Ryder SPT made plain that there is no obligation to draw an adverse inference; instead, the court has the discretion to do so. Whether it should will depend on the facts of the case; at the very least, the judge might be less inclined to attach full weight to what the trustees say if they decline to attend qua witness when they could offer considerable assistance on a particular issue.
xi) Relevant factors when determining whether the Charman test is met include:
a) The nature and purpose of the trusts. Trust documents, including settlement deeds and letters of wishes, will be informative, but so too may be evidence within the family as to the working of the trust, and their expectations therefrom.
b) Whether the husband or wife is a main or principal beneficiary, or merely one among many minor beneficiaries of similar standing.
c) Whether distributions to a party would appreciably damage other beneficiaries.
d) The history of distributions or loans to a party, including how often they have been made, for what purpose, and whether requests for funds have been turned down. Where loans have been made, the terms of repayment and security may require scrutiny.
e) The value of the overall trust funds, and the quantum of monies sought to be provided from that source.
f) Whether the trust funds are fully liquid (e.g. in investment portfolios) or tied up in private businesses and potentially difficult to realise.
g) Whether the beneficiary has a close relationship with the trustees (or, protector, should there be one).
h) The extent of explanation, information and documentation provided by the trustees, and whether they declined to attend court in a witness capacity.
Thus far, my reading of the case suggests that H and the trustees have been less than forthcoming. On the face of it, he has had benefit from the Trust, including (but not necessarily limited to) provision of the family home. Unless the relevant information is provided, the court may be driven to consider whether to draw adverse inferences.
The Law on Letters of Request
In Charman v Charman [2005] EWCA Civ 1606, the husband’s trusts were (as here) central to the case. From the judgment of Wilson LJ (as he was) I derive the following propositions:
Letters of request may request the production of documents and/or the taking of oral evidence.
Whether the letter of request is “outgoing” or “incoming” the principes are the same: paras 27-29.
The test is one of necessity as set out at para 50: “As explained in [23(a)] above, an inspection appointment can be ordered only in respect of a document inspection of which appears "necessary" for disposing fairly of the application or for saving costs; and, as explained in [27], the same principle applies to a letter of request for the production of documents. In my view the judge was correct to conclude that, in both cases, the threshold of necessity was crossed”.
An applicant should not be permitted to embark on a “fishing” expedition.
Family proceedings are distinct from civil proceedings, in part because of the court’s quasi-inquisitorial duty, and “the court cannot be disabled from discharging it by any substantial fetter upon its ability to extract relevant information from a non-party….”: paras 48, 49 and 59. As Sir Mark Potter P said at para 71: “It is in the nature of such cases that, until the occasion of marriage breakdown and divorce, the wife has been content to leave the task of wealth creation to the husband as well as the arrangements for the protection of the family fortunes. Often the wife will be ignorant, or at any rate have minimal knowledge, in respect of such arrangements, save for knowledge that there is a substantial off-shore family trust administered by off-shore trustees in consultation with the husband or his accountant and a likelihood that the husband has immediate access to the trust funds in the Browne v Browne sense. If, in ancillary proceedings following divorce, the court is to achieve a fair division or adjustment of the parties’ assets in a situation where the wife is ignorant of the true asset position and dependent on the frankness and cooperation of a now disaffected and resistant husband, the issue of a letter of request addressed to the courts of the jurisdiction in which the discretionary trust is situate is a valuable means by which to obtain the necessary information. In my view, therefore, the court should in principle be receptive to an application by the wife in such a case where there is good reason to suppose that evidence of assistance to the court in its “quasi-inquisitorial” role under s.25 of the 1973 Act may thereby be obtained.”
Lewin on Trusts 20th edition states in respect of family proceedings at [51-056]:
“Where the trustee is not in England and Wales, or within the European Union, a party to matrimonial proceedings may ask the High Court to issue a letter of request in the judicial authorities in the country in which the proposed deponent is. The principles applicable in England to such a request are the same whether a request is made by the English court to a foreign court or the English court is considering a request by a foreign court. The request must be to disclose particular documents as specified in the request, and not a “fishing expedition” …… whatever the position in civil proceedings, an applicant in matrimonial proceedings does not need to prove that a document exists before a letter of request may be issued; the court recognises that a spouse may seldom have the knowledge with which to prove the existence of a document which, if it does exist, may have a crucial bearing on the outcome of the financial application. A letter of request should be issued only where it appears necessary for disposing fairly of the application or for saving costs. Care should be taken to comply with the formal requirements of the Hague Convention of the Taking of Evidence Abroad in Civil or Commercial Matters.”
In terms of procedure, the application for issue of a letter of request is governed by FPR 2010 Rule 24.12 and PD24A para 5. It is made to the High Court; see also Part A para 13 of the Schedule to the President’s Allocation Guidance of 24 May 2021. If the court issues the letter of request, the relevant documents, set out at para 5.3 of PD24A, are then filed in the Royal Courts of Justice as set out at 5.4 of PD27A, to be dealt with by the Senior Master of the King’s Bench Division as set out at para 5.5 of PD24A.
It is not usually necessary, when considering whether to make an order for the issue of a letter of request, to join as a party the person from whom documentation is sought: per Mostyn J at para 28 of DR v GR [2013] EWHC 1196 (Fam).
I observe that both the United Kingdom and Cyprus are signatories to 1970 Hague Convention on the Taking of Evidence Abroad which imposes each of them certain obligations. In particular, the requested jurisdiction (in this case Cyprus) is obliged to execute the request. The only exceptions are under Article 12 which is as follows:
“The execution of a letter of request may be refused only to the extent that:
a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or
b) the State addressed considers that its sovereignty or security would be prejudiced thereby.
Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.”
Since its departure from the European Union, the United Kingdom is no longer a signatory to the Taking of Evidence Regulation (EC) No 1206/2001 which contained a similar framework.
Conclusion
I am satisfied that the application for an order to issue a letter of request should be granted. The documents sought are relevant, and central to the principal issue in the case, namely whether the Trust is a resource for H. They are specific and targeted. They are not a fishing expedition. At the First Appointment, the judge made an order for the parties to seek production of the documents directly from the trustees, which indicates his view of their importance to the financial remedy proceedings. The court will need as much information as possible on this issue. The documents are, in my judgment, relevant and proportionate to the issues in the case.
Counsel for W suggested that the financial remedy proceedings should be stayed until provision of the documents from X Country. I decline to do so. I cannot be sure that the request will be executed. Nor is the likely timescale for execution clear. I do not consider that financial remedies cases should be held up indefinitely in the (perhaps forlorn) hope that the letter of request will be forthcoming, although a short adjournment may be appropriate. These are matters of case management. Of course, in the end the court will have to look at such evidence as is available and, if dissatisfied with one party’s disclosure, may be driven to drawing adverse inferences.
I would only add that an application for a letter of request should normally be made (although every case is different) when all alternative ways of obtaining the information have not succeeded.