Case No: B4/2009/0926/FAFMF
Neutral Citation Number: [2010] EWCA Civ 119
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
The Honourable Mrs Justice Eleanor King
FD07D01333
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/02/2010
Before :

THE RIGHT HONOURABLE LORD JUSTICE THORPE
THE RIGHT HONOURABLE LORD JUSTICE WALL
and
THE RIGHT HONOURABLE LORD JUSTICE RIMER
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Between :

	MARANO	Appellant	
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	MARANO	Respondent	
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(Transcript of the Handed Down Judgment of
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Nicholas Mostyn QC and Justin Warshaw (instructed by Messrs Hughes Fowler Carruthers) for the Appellant wife
Lewis Marks QC and Elizabeth Clarke (instructed by Messrs Withers LLP) for the Respondent husband

Hearing dates : Thursday 14th January 2010
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Judgment
LORD JUSTICE THORPE : 
1.	The parties to this appeal were married in California in 1987 and divorced in London in 2007.  However, for convenience, I will refer to them throughout as husband and wife. 
2.	Within the divorce proceedings each initiated financial claims.  The wife’s first application of 27th March 2007 sought property adjustment in relation to family homes and a yacht, lump sum, periodical payments and pension share.
3.	The husband’s cross claim, by notice of 17th November 2008, sought similar property adjustment, lump sum and periodical payments.
4.	The wife’s amended form of 10th February 2009 sought property adjustment to take over the husband’s business interests.
5.	After a conventional preparation these cross claims came for trial before Mrs Justice Eleanor King on 9th March 2009.  Her reserved judgment was dated 23rd March 2009.  
6.	The wife sought permission to appeal the order below.  I refused permission on paper but on 30th June 2009 Mr Nicholas Mostyn QC persuaded the full court to grant permission.  Although that was a conventional oral hearing without notice, written submission in opposition had been received from Mr Lewis Marks QC, who represents the husband.
7.	For an introduction to this family I could not better the section of the judgment below which Mrs Justice Eleanor King headed ‘Background’.  I therefore gratefully adopt paragraphs 2 -10 of her judgment:
“Background
2.The husband is now 50 years of age, having been born on 28 June 1958.  He is a property developer and US citizen.  The wife is 46, born on 18 June 1962.  She has worked as a freelance journalist although she is primarily a homemaker.  The wife is a United States citizen and one of three daughters of Frances Bowes and the late John Bowes.
3. There are three children of this marriage, Kate, who is 16 born on 8 June 1992, who attends the Godolphin and Latymer School in Hammersmith, Thomas, who is 15 and is at Eton, and Julia, who is 10 and who is at St Thomas’ School in Kensington.
4. The parties married on 17 October 1987 in California when the wife was 16 and the husband 20.  The husband was studying at the University of California and Berkeley and was a friend of the wife’s older sister.  The wife in due course also went to university but she has only ever been in any serious relationship with the husband.
5. The parties married on 17 October 1987 in California but set up home in London initially.  Although they had a brief period living in New York, the wife having struggled to settle in London, the parties returned to London in May 1989 where they have lived ever since.
6. The parties separated on 10 February 2007.  This was therefore a marriage of over 19 years.
7. Since the separation the wife and children have continued to live at the former matrimonial home in Belgrave Place in London.  This is a substantial duplex apartment which had been redesigned in large part by Lord Foster and it is agreed to be worth £13 million, £9,377,091 net.  The children have lived in the property all their lives and both the husband and the wife wish it to continue to be their children’s home.
8.  Since the separation the husband has lived in a mews property close to the former matrimonial home.  This property was originally bought by the parties as overflow capacity for guests and as an office for the husband.  That property, it is agreed, is worth £4.4 million, £682,758 net.  It is agreed that this property will be retained by the husband.
9. The wife is the daughter of a very successful American businessman, John Bowes, whose wealth could be counted in terms of hundreds of millions of dollars.  In his lifetime Mr Bowes set up a battery of trusts and financial vehicles by which he made provision for his wife, three daughters and grandchildren.  As part of his plan he transferred to them a substantial proportion of his shares in his company Transco.  In the mid 1980s, prior to the marriage, the husband began to work in property development in New York.  In 1986 he was transferred to London where he worked on the Canary Wharf project as a joint venture between First Boston, Morgan Stanley and a number of other companies.  A year or so later the Canary Wharf project was sold to Olympia and York where the husband met a man called Michael Dennis who subsequently became his business partner.  For a short period of time the parties, as I have already mentioned, moved back to the United States but by May 1989 they had returned to London to enable the husband once more to work for Olympia and York.  The husband remained working for them, finding tenants for their Canary Wharf development, until June 1992 when the company when into administration.  The husband was made redundant as the UK property market collapsed.
10. The husband and wife decided that the husband should set up in business on his own.  There is no doubt that the wife was supportive and encouraged the husband to branch out on his own.  They already had one young child to care for but they had the advantage of knowing that they had the security of the wife’s equity holding in her father’s company.  In December 1992 the husband incorporated Gemini Commercial Investments Limited.  The husband effectively changed from gamekeeper to poacher as he was now to do consultancy work primarily acting for tenants rather than for landlords.  The husband was fortunate in gaining contracts with the Mirror Group which in turn led to a contract to develop and manage a substantial redevelopment at Holborn in London and the opportunity to purchase a property at 9 Appold Street also from the Mirror group.  The property formed the basis of what was to become the Laurel Group Limited Company, a company central to the issues to be decided by the Court.”
8.	The parties to this appeal are of great integrity. Their financial affairs are very complex.  During the preparation of the case the husband made all relevant information freely available to the wife’s advisers.  The vast majority of the detailed information that was required came from him and he was scrupulous in ensuring that all that he said was accurate and comprehensive.  However his objectivity did not protect him from considerable distress engendered by the contested proceedings: distress shared by the wife and, it seems, the children of the family.  
9.	When Mr Mostyn persuaded the court to grant permission, we were told that the first result would be a commitment to mediation, at least on the wife’s part.  It is sad that the parties were unable to agree solutions to avoid a contested hearing in the family division and sad that they were unable to compromise the appeal.  I suspect that a significant impediment to settlement was the collapse in the value of the husband’s commercial property investments during the course of the proceedings.  In June 2007, the date of the husband’s Form E, his investment in Laurel Brook was worth over £80,000,000.  By the date of trial the developments’ debts exceeded the value of the properties.  Although the husband was protected by corporate limited liability, liquidation would result in a personal US tax charge of approximately £10,000,000.  Thus he had suffered a diminution in asset value nearing £100,000,000 during the interlocutory preparations.  
10.	The effect of the judgment below was to divide matrimonial assets equally, after bringing in the latent US tax charge on the liquidation of Laurel Brook.  Equalisation was achieved by ordering the wife to pay to the husband a lump sum of £5,000,000 on the basis that the wife retained the final matrimonial home in Belgrave Place, whilst the husband retained an adjacent mews house together with the Sardinian holiday home and the yacht.  The objective of the appeal has been to set aside the lump sum order.
11.	Before addressing Mr Mostyn’s submissions I will briefly review the development of the wife’s case and the judge’s approach in the court below.
12.	Mr Mostyn was extremely critical of the way in which the wife’s case had been run in the court below by her previous solicitors and counsel.  At the pre- trial review on 16th January 2009 the wife’s team announced, for the first time, that the wife intended to press for an order which would transfer ownership of the Laurel Brook property developments into her name.  I see considerable force in Mr Mostyn’s criticism given that the wife has no experience of or aptitude for business and given that the Laurel Brook developments represent the culmination of the husband’s career as a commercial property developer.
13.	Then at trial the wife abandoned her claim to take over the Laurel Brook developments and instead sought a periodical payments claim, initially in the sum of £420,000 per annum reducing somewhat as the trial proceeded.  Again I see force in Mr Mostyn’s criticism, since by March 2009 the husband’s identifiable income was £100,000 almost all of which would be consumed by mortgage repayments on the mews house and the consent orders for periodical payments to the three children.  
14.	In expressing these views I imply no criticism of the wife’s previous solicitors and counsel.  The steps taken may, for all I know, have been directed by the wife’s express instructions.
15.	In my judgment the best outcome for which the wife could have contended realistically at trial was that for which Mr Mostyn contends on appeal, namely the division of property giving the wife the valuable matrimonial home and the husband the rest with no other order.  The wife would retain her family money and the husband would retain the Laurel Brook developments.  It was common ground that the wife had already contributed $10,000,000 from her family fortune to the acquisition or improvement of the assets with which the husband would exit.
16.	Mrs Justice Eleanor King’s reserved judgment is admirably comprehensive, insightful and clear.  At the outset in paragraph 11 she defined the issues as follows:
“Issues
11. The parties agree that this case should be determined by reference to the sharing and fairness principles (no question of compensation arises), against of course the backdrop of section 25 of the Matrimonial Causes Act 1973.  Before a fair outcome can be determined a number of highly contentious issues have to be decided.
a) How the husband’s business interests, particularly Laurel Brook, ought to be valued and what, if anything, is their value.
b) How is the wife’s wealth to be treated?
c) A lesser issue is the valuation of the parties’ villa in Sardinia.  From these three issues follow two key questions:
a) Should the husband pay the wife ongoing periodical payments and if so at what rate?
b) Should the wife pay the husband a lump sum and if so how much?”
17.	As to the paragraph (a) issue, that was resolved when the wife’s forensic accountant was forced to concede that his contention for a positive value for the husband’s Laurel Brook shares rested on a misunderstanding of a vital document.  Immediately, it became common ground that the borrowings exceeded the value of the properties and that the value to the husband was zero, since whatever the extent of the negative equity he was protected by limited liability.
18.	The paragraph (b) issue was the subject of expert and other evidence and received the judge’s careful and measured consideration.  
19.	The paragraph (c) issue was relatively simply resolved.  The judge chose a figure within the bracket established by the expert evidence of the husband’s valuer and the wife’s valuer.
20.	As to the key questions, the answer to question (a) was almost obvious for the reasons which I have given above. 
21.	As to (b) the judge’s answer was positive and quantified at £5,000,000.  Our only task is to consider whether the judge was right or, more accurately, within the generous discretionary ambit, to answer that question as she did. 
22.	Before considering her reasoning, I will summarise the competing submissions of Mr Mostyn and Mr Marks.
23.	Mr Mostyn and his instructing solicitors, coming into the case without previous involvement, had the advantage of no baggage from below but the disadvantage of an incomplete understanding of the processes resulting in the trial. 
24.	In obtaining permission to appeal, Mr Mostyn had principally relied upon the submission that the judge was wrong to have relied upon a snap shot valuation of the Laurel Brook developments as at the date of trial.  The following were absolutes:
i)	The husband’s investment in the developments had a value of over £80,000,000 at the outset of the proceedings.
ii)	The husband was intellectually, emotionally and intuitively committed to trading his way out of the market downturn.
iii)	Liquidation was not a foreseeable eventuality.
iv)	The developments were occupied by high quality leases, produced annual rents well in excess of the interest charges on the borrowings, and the husband had secured the continuing support of the banks by agreeing penalties in compromise of the breaches of covenant resulting from the dramatic fall in the value of the development.
v)	It was not just predictable but capable of proof that the value of the developments was already climbing from the March 2009 trough.
25.	In the development of that argument an application to admit fresh evidence was submitted by the appellant on 22nd December 2009.  Within that application was a report from Mr Wolfenden who expressed the expert opinion that the value of the Laurel Brook developments had increased significantly since the date of trial, with the consequence that the value of the husband’s interests in Laurel Brook now lies within a bracket of £3.1 and £12.5 million: as Mr Mostyn puts it the mid-point of the rise, about £8,000,000, is £3,000,000 more than the lump sum ordered by the judge.
26.	A second report, dated 25th May 2009, is from Patricia Barlow, an expert in the family law of California.
27.	For reasons given at the outset of the hearing of the appeal, we refused the application to admit fresh evidence.  That was not particularly fateful.  The argument that the judge should have factored in Californian law was bound to fail in this court: the relevance of a foreign law with which the parties have a close connection is likely to be considered by the Supreme Court in the Granatino appeal in March 2010; the point was open and not taken below; and, as Mr Marks pointed out, the husband is a New Yorker and not a Californian.
28.	The absence of a positive snap shot valuation as at January 2010 did not preclude the deployment of Mr Mostyn’s principal submission. 
29.	At the conclusion of his submissions Mr Mostyn was asked to identify the errors of principle necessary to open the gates to a discretionary re-evaluation.
30.	Mr Mostyn nailed the following colours to his mast:
i)	The judge was wrong to adopt the liquidated approach, bringing in a snap shot valuation for an asset with dramatic fluctuating asset value, once the husband had declared his absolute commitment to trading on.  The only principled approach was a percentage division on any realisation resulting in either profit or loss which could be achieved by reverse contingent lump sums.  The US tax liability of about £10,000,000 was not an accrued liability on achieved gain.  It was only a latent liability on a contingency within the husband’s control that would not occur in any foreseeable future given the husband’s long term commitment to the project.
ii)	Mr Mostyn, as does Mr Marks, relies on the following direction in the speech of Lord Nicholls  in White v White [2001] 1 AC 596, at 612:
“Finally, Mrs White criticised the use of net values, arrived at after deducting estimates of the costs and capital gains tax likely to be incurred if the farms were sold.  Mr White still owns and uses the farms.  The farms have not been sold.  Counsel submitted that the use of net values in this situation should be discontinued.  I do not agree.  As with so much else in this field, there can be no hard and fast rule, either way.  When making a comparison it is important to compare like with like, so far as this may be possible in the particular case.  In the present case a comparison based on net values is fairer than would be a comparison of Mrs White’s cash award and the gross value of the farms.  Under her award Mrs White will have money.  She can invest or use it as she pleases.  Mr White’s equivalent, as a cash sum, is the net value of the farms.  The farms have to be sold before he can have money to invest or use other ways.”
31.	Mr Mostyn emphasises that Lord Nicholls was expressing only a general rule that does not apply to exceptional cases.  Mr Mostyn accepts that the general rule applies to property and shares that hold a gross value.  However he says that there is no reported case, and no case within his experience, where a notional tax liability that would arise on the disposal of negative equity assets would be brought in to a net asset balance sheet.  
32.	As to a reverse contingent lump sum Mr Mostyn relies upon the case of Charman v Charman (No 2) [2006] EWHC 18979 (Fam); [2007] 1 FLR 593 where at paragraph 94 of his first instance judgment, Mr Justice Coleridge stated: 
“[94] At the 59th minute of the 11th hour, namely about a week ago the husband sought to make an application to admit new evidence about a potentially much higher level of income tax which might be chargeable on his Axis interests; the restricted shares and the share options.  The further liability was estimated at a little under £11m.  I heard the application over the telephone as I was on circuit.  It was vigorously opposed by the wife.  The liability had apparently been overlooked by the husband’s accountancy team until the end of June.  No explanation was forthcoming.  I refused the application on the basis that it seemed to me almost inevitable that it would lead to a very significant further delay in delivery of judgment as the liability was far from conceded.  However, I indicated, and the wife accepted, that if in fact in the end there is indeed a further UK tax charge referable to these interests when realised, a mechanism should be provided to enable the husband to recoup a portion of the actual tax paid (when it is paid) by him to the Inland Revenue.  I shall so provide.”
33.	That approach was endorsed in this court (Charman v Charman (No 4) [2002] EWCA Civ 503; [2007] 1 FLR 1246) at paragraph 96 of the court’s judgment as follows:
“[96] The husband also appeals against the judge’s treatment of his claimed liability to tax by means of the ‘reverse contingent lump sum.’ His presentation of this liability to the judge was so belated that in our view the husband is in no position to complain about he pragmatic way in which, principally in order to avoid yet further delay, the judge chose to deal with it.  Indeed his preferred mechanism for causing the wife to bear part of the tax liability was arguably fairer than an immediate deduction from the balance sheet of a liability which was referable primarily to options and which would not arise until the husband’s exercise of them up to 8 years into the future”
34.	As an addendum to these submissions Mr Mostyn added that the £5,000,000 lump sum was plainly intended to represent the wife’s equal contribution to the latent US tax charge currently estimated at about £10,000,000.  That sum also had the effect of dividing the matrimonial assets almost exactly equally between the parties.  That approach was unprincipled since the tax liability was not only nebulous but also unquantifiable since it ultimately depended upon a number of factors including the value of the development at the date of disposal.
35.	Mr Mostyn’s second assertion of an error of principle does not require much consideration.  He suggested that the judge had not sufficiently reflected the fact that the wife had injected $15,000,000 of her family money into matrimonial assets prior to the hearing.  In relation to that submission I say at once that at paragraph 130 of her judgment Mrs Justice Eleanor King established that, of the $15,000,000 injected, only $10,000,000 related to assets which the husband would retain as a result of the order.  Furthermore, very little reliance was placed on this feature either in the court below or in Mr Mostyn’s skilful skeletons.  Finally it is plain from paragraph 186 of the judgment that Mrs Justice Eleanor King had this feature well in mind.
36.	For the husband, Mr Marks rebuts all these submissions roundly.  At the end of a 20 year marriage to which both spouses had made the fullest contributions, one exits with 16% and the other with 84% of the overall assets.  It is indeed remarkable, says Mr Marks, that the spouse with 84% of the assets is the appellant.
37.	Mr Marks responded convincingly to the suggestion that the judge had given insufficient weight to the injection of $15,000,000 from the wife’s family money.  I have drawn on Mr Marks’ submissions in rejecting this submission summarily. 
38.	As to Mr Mostyn’s principal submission, Mr Marks, in reliance on the dicta in White, emphasises that the judge simply followed the golden rule and did what judges do up and down the land in order to evaluate both equality and fairness.  In Charman all contingent tax liabilities were dealt with at trial in precisely the same way as in the present case with the sole exception of the latent liability of up to £11,000,000 which was very late discovered and which was, in any event, disputed.  Here the liability is neither late discovered nor disputed.
39.	Furthermore the husband’s commitment to devote his future work life to Laurel Brook does not mean that he has unfettered control.  The surplus of rental income over interest payments and other outgoings is now hypothecated to the discharge of the penalties in the sum of £11,500,000 agreed in compromise of the breaches of covenant.  When that obligation is met the excess reverts to reduction of the principal debt.  There are no circumstances in which the husband can benefit from the Laurel Brook development beyond his entitlement to £100,000 per year.  Furthermore the existing loans expire respectively in 2011 and 2013.  On 15th January 2011 the bank is entitled to be repaid £136,000,000.  Unless the husband can negotiate an extension or an alternative lender he will be sold up.  The problem will recur in 2013.  To establish any material value in the Laurel Brook development first there must be a dramatic turnaround in the market and second the respondent must have kept the banks onside meanwhile.
40.	Against a very uncertain future, the husband has net assets of only £4,400,000.  There is no room for acumen or genius.  The development is already let on terms that are settled.  It is market force and not expertise that will or will not restore the fortune he once seemed to possess.  
41.	What the judge did precisely complied with the guidance given by the appellate court.  Whilst the judge might have imposed a contingent rather than an immediate obligation on the wife, it was certainly not something that she was bound by authority to do.  Thus no appealable error has been demonstrated.
42.	As to the relationship between the lump sum and the latent US tax liability, Mr Marks submitted that it was a fortuitous correlation, albeit arithmetically approximate.  
43.	In reply Mr Mostyn emphasised how unprecedented was the liability that had enabled the judge to rationalise the lump sum in order to achieve an equal division of the matrimonial assets. According to the law and practice of this jurisdiction it was impossible to have a capital gains tax charge on assets disposed of at a significant loss, whether on sale or liquidation.  It was of course orthodox to allow for notional CGT on the sale of the extraordinarily valuable matrimonial home.  However the concept of a capital gains tax levied on the disposal of commercial property in substantial negative equity must surely qualify for the exceptional situation envisaged by Lord Nicholls in the passage cited.
44.	The resolution of these rival submissions depends upon a careful review of the judge’s rationalisation of her order.  I cite, in full, paragraphs 189 to 195 of her judgment without abbreviation:
“189.  In the circumstances of this case I do not think it would be fair to regard the Bowes family money invested in the United States as having become matrimonial property in the full sense of the word and so properly available for equal distribution between the parties. 
190. Neither do I think it fair that the husband leaves the marriage, having provided all that he has for the family, with the high risk asset that is Laurel Brook, his other lesser business interests, the Villa and a very large mortgage on Belgrave Mews.
191. I take into account that the husband could walk away from Laurel Brook, pay the tax and the court would then make an order from a position of considerably more certainty.  The husband is determined to keep Laurel Brook.  That is his choice and he is to be respected for it.  An inevitable consequence of making such a choice is that the court must conclude that it has a value to the husband.  Whilst that value is unquantifiable, it must be such as makes him prepared to weather the storm, no matter how much pressure it put him under, and no matter how little liquidity he has in the meantime.
192.  I accept Mr Scott’s assessment that if there ever was a man that could make Laurel Brook valuable again it is Peter Marano but the current economic climate is no respecter even of men of ability of Mr Marano.  He faces the daunting prospect of the Hypo penalties.  Further, Hypo Bank with its’ own problems and if it forecloses payment of the £9.9m tax then payable, it will financially obliterate Husband: the Villa and Belgrave Mews would not cover the tax.  To leave him in such a vulnerable position after a 20 year marriage would not in my judgment be fair.
193. The husband seeks a lump sum of £13.4 million.  This would leave the wife with £5.6 million in the United States investments and the BFP and only £3 million if she was to pay off the mortgage on Belgrave Place.  I do take into account the very high standard of living to which the family and in particular the children have become accustomed.  Both parties wish that to be maintained and both want the wife to stay in Belgrave Place.
194. The wife will need significant capital to fund that lifestyle, even at the more modest level which she now accepts to be inevitable.  I do not think it fair to regard the BFP funds as full matrimonial assets to which the husband should receive half.  Neither do I think that such an outcome would leave the wife with sufficient capital, given that it is the husband’s case that he is going to be unable to contribute to the family more than to the tune of £45,000 per annum in the medium term.
195.  I intend to make a lump sum in the husband’s favour of 35m.  Such a sum will allow him to pay off his mortgage on Belgrave Mews if he wishes and to have some surplus with which to live or invest.  It will leave the wife with approximately £2 million outside the BFP.  The children will be largely self-supporting through the husband’s maintenance and their personal trust funds.”
45.	The essence of this reasoning lies in paragraphs 190 and 195 read together.  Those paragraphs demonstrate that the judge was exercising a broad and general discretion to achieve fairness.  She had regard to the extent of the Bowes family money, albeit not matrimonial property.  She had regard to the risks attendant on the path that the husband was determined to tread.  She had regard to his past contributions and to the mortgage on his home.  She might have referred to his determination to continue to support the three children at the rate of £45,000 per annum in total, despite the availability of their separate trust funds for education and maintenance.  What is notably absent from the judge’s reasoning is any correlation between the quantum of the lump sum and his latent US CGT liability.  Mr Marks is entitled to label this correlation fortuitous and approximate given that the sum in question is not £10,000,000 but £9,499,588, and given the absence of any reference to that liability in the central paragraphs of the judgment. 
46.	This appeal was argued with exceptional ability by Mr Mostyn and by Mr Marks.  As a generalisation I conclude that Mr Marks’ responses to Mr Mostyn’s attack were well founded and well expressed.  On close analysis no error of principle has been demonstrated.  This is an impressive judgment which brings to a close a difficult case in which the judge’s perception of the essential issues and her proper conclusion were not assisted by the unorthodox way in which the wife’s case developed and fluctuated.  Those difficulties did not deflect the judge from a shrewd perception of the essential issues, to which she found an outcome which was very plainly in the ambit of her discretion.  I would dismiss this appeal.
Lord Justice Wall:
47.	I agree. In my judgment, Mr. Mostyn has not demonstrated any error of principle on the part of the judge. Her assessment of the parties' assets and liabilities is both conventional and wholly consistent, and her discretionary rationalisation of the lump sum of £5 million payable to the husband (see paragraph 195 of her judgment, cited by Thorpe LJ in paragraph 43 of his) is unimpeachable. I say nothing about Mr. Mostyn's attacks on the conduct of his predecessors save to observe that they were, in my judgment, ably countered by Mr. Marks and make no impact on my assessment of the outcome of this appeal.
Lord Justice Rimer:
48.	For the reasons given by Lord Justice Thorpe, with which I agree, I too would dismiss the appeal.