England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE RYLAND)

		Royal Courts of Justice The Strand London
		Wednesday 3 October 2001

Wednesday 3 October 2001

1. LORD JUSTICE THORPE: This case of Sherif seems to be dogged by misfortune. The parties are former spouses. They came together in 1990. They were married for about six years. After their divorce ancillary relief proceedings were brought in the Willesden County Court. There was a long hearing in front of District Judge Morris at which each of them at that stage was unrepresented. Subsequently, the district judge permitted a fresh start with both parties represented, the husband by Mr Tiler and the wife by Mr Line. On 30 November 2000, the district judge delivered a judgment in which he allowed the wife £110,000 to meet her reasonable costs of rehousing, but gave her, in addition, a sum of £13,000 by way of compensation for pension loss and the sum of £10,000 towards her debts.
2. The wife appealed. Her appeal came before His Honour Judge Ryland sitting in the Central London County Court on 19 June 2001. He increased the wife's provision from the district judge's sum of £133,000 to a sum of £175,000. That represents a net improvement for the wife of some £42,000.
3. Mr Sherif applied to this court for permission on 25 July as a litigant in person. Mr Tiler apparently settled his grounds, but thereafter ceased to act for him. Mrs Sherif applied for permission as a litigant in person two days later.
4. These applications were listed for hearing today. Unfortunately, the court office overlooked the husband's application and sent me only the wife's bundle and skeleton argument. When I came to court this afternoon the error emerged and Mr Tiler very kindly provided me with a clean copy of the husband's appeal bundle.
5. Mr Tiler takes a number of points, all of which have some validity. He is critical of the judge for having seemingly accepted the wife's assertion that she had additional liabilities of £15,000 to some people in respect of her living expenses. I cite his judgment at page 8E. Mr Tiler's complaint is that the judge heard no evidence from either party and there had indeed been an earlier order by His Honour Judge Krikler to the effect that the appeal was to be determined exclusively on the evidence given before the district judge. That is a small complaint, but it does not seem to have been carried into the judge's eventual calculations at the vital point where he explained his divergence from the district judge.
6. Secondly, Mr Tiler says that the judge was in error to record a nine-year marriage when the district judge had more correctly called it a six-year marriage. I think the judge's error is understandable for the parties had come together at the end of the year 1999 and, sitting as he did in the summer of 2001, he made his calculations on the basis of periods before the celebration and after the dissolution of the marriage.
7. I think Mr Tiler's real complaint is that the judgment seems to proceed on the basis that the judge was only to uplift the district judge to what he described as a "limited extent", namely from 35 to 40 per cent of the total joint assets. He worked off a figure of £380,000, which had been advanced by Mr Tiler in his submissions, and he rightly noticed that the district judge's figure overall of £133,000 represented about 35 per cent of that total. But of course the judge's figure of £133,000 included the two elements totalling £23,000 for credit card debts and pension provision. So if the judge was merely moving to 40 per cent or £152,000, that figure had to be equally inclusive, but the judge went on to make it exclusive by ordering that, in addition to £152,000, the wife should receive the £23,000 representing credit card debts and pension provision. So, arguably, there was a simple slip of judicial thinking at that time. But Mr Tiler never raised it with the judge as he had every opportunity to do, and he comes to this court and says: well, seemingly the judge has made a simple error.
8. The proposition is not entirely self-evident since the judge had not just approached the case on the basis of fractions, but he had also differed from the district judge's overall assessment that the wife had an immediate earning capacity and needed no provision to enable her to get back on her feet or to move from the position of being an unemployed ex-wife to being an independent career woman. The judge said (and his approach is understandable) that she should be allowed three years from the date of his judgment before she was to be treated as notionally independent.
9. I move now to consider the wife's criticisms. Her main criticism is one that is simply unanswerable, but it relates only to the form of the order. The order to give effect to Judge Ryland's judgment was actually drafted by Mr Tiler. As counsel for the husband against a litigant in person, he had a particular obligation to see that the order as drawn was not unduly favourable to his client or in any way to the prejudice of the litigant in person. But unfortunately he drew the order on the basis that the wife should have not 40 per cent of the overall assets, but only 40 per cent of one of the properties. Forty per cent of the property, after allowing for 3 per cent expenses of sale, would not amount to much more than £89,000 or so. Therefore, the order as drawn would not only cheat the wife of the addition that the judge intended her to have, but would leave her worse off even than the district judge had intended. That is a correction which must be achieved. The question is whether an appellate review is necessary to achieve it.
10. The wife brings a number of other complaints, particularly relating to old evidence which she asserts demonstrates that the husband made her a gift of one of the properties early in their relationship. However, the evidence upon which she relies was all considered by the district judge. He was not impressed by the individual whom she called as a handwriting expert. In the end he concluded that the document that she asserted evidencing the gift was unacceptable. That is therefore not an area that could possibly justify the grant of permission.
11. These parties must understand that this case is caught by section 55 of the Access to Justice Act 1999 in that there has already been an appeal in the court of trial. Accordingly, this court is not entitled to extend permission unless one or other of the parties has demonstrated an important point of law or practice or some other compelling reason. Plainly there is no important point of law or practice. Is there any other compelling reason? The judge may have made a slip, as Mr Tiler asserts, on the other hand, he may not. There is no doubt that the husband was very fortunate in the judge's costs adjudication for, although the wife had succeeded in the appeal (and I am not aware of any Calderbank letter having been written on the appeal), the judge made no order as to costs. I therefore see nothing in Mr Tiler's submissions that carries him over the formidable obstacle of section 55.
12. The same must be true for the wife's application, save for the most unfortunate and obvious error in the drafting of the court order. I would grant her permission to appeal if correction could only be achieved by the appellate process. But that is not the case. It must be possible to correct the order under the slip rule. It has never been considered by Judge Ryland, as I understand it, and Mr Tiler accepts responsibility, at least in large part, for the error.
13. Paragraph 2 of the order must be amended to ensure that, on a sale of the property, Mrs Sherif receives not less than £152,000, and only the balance above to go to the husband. There will need to be other consequential amendments to the order to reflect the passage of time. If those cannot be agreed, then they can be decided by Judge Ryland or by some other judge at the court of trial. I have said enough to demonstrate that these applications for permission must be refused.
14. Thank you both for your assistance.

THE APPLICANT (MRS SHERIF): Your Honour, it is about the actual order itself. You did say previously -- I asked if I am to buy my order out which was agreed with Judge Ryland. It was calculated on the present valuation and the value was 235 --

LORD JUSTICE THORPE: There is nothing in the judgment of Judge Ryland to say you should have some right of pre-emption, is there?

THE APPLICANT (MRS SHERIF): It says in paragraph 4 of the order: "buying out Ajmal Sherif". But Mr Tiler has not written the order properly because Judge Ryland has agreed that I should be given three months -- that is why the property should be put on the market not later than September for me raise the money.

LORD JUSTICE THORPE:I see. But where do I find that in Judge Ryland's judgment that you should have three months to buy him out?

THE APPLICANT (MRS SHERIF): It is not in the judgment, but it was said at the end of the hearing and the judge agreed and Mr Tiler said --

LORD JUSTICE THORPE: I see. So there were exchanges after judgment which have not been recorded? Is that right?

THE APPLICANT (MRS SHERIF): They must have been recorded, your Honour.

LORD JUSTICE THORPE: Yes, but they have not been transcribed?

THE APPLICANT (MRS SHERIF): That is right, your Honour, and the other side wanted me to sign the consent order for £60,000. If you take £233,000 off Preston Road if it is to be sold, minus £175,000 that I was given, that would make £60,000, your Honour. But the mistake I would also like to point out is that it is all fine if I do raise the money, but if my property is to be sold, actually Preston Road has probably gone up. So in that way if I am to receive only of £175,000, my husband would benefit on the increased value of both parties, your Honour. I would actually get again less, if you understand my point.

LORD JUSTICE THORPE: I do understand your point.

THE APPLICANT (MRS SHERIF): I would get only 30 per cent. I would also like to say, your Honour, I wrote to Judge Ryland directly and warned him straight away after this mistake, and I also wrote to Judge Ryland saying that the order is wrong and I have never received a reply.

LORD JUSTICE THORPE: No reply?

THE APPLICANT (MRS SHERIF): Yes. I have been constantly writing with the help of the Citizens' Advice Bureau. They have seen the mistake and they helped me.

LORD JUSTICE THORPE: I will just ask Mr Tiler. We cannot go on indefinitely. Mr Tiler, what was the nature of the agreement for Mrs Sherif to buy out your client's interest?

MR TILER: My Lord, I cannot frankly remember. I have no note of it on my notebook.

THE APPLICANT (MRS SHERIF): You wrote on a piece of paper and asked me to sign it for £60,000 after the hearing. Your Honour, he wanted me to sign a consent order.

LORD JUSTICE THORPE: Have you got the bit of paper?

THE APPLICANT (MRS SHERIF): No, I haven't taken it because he wrote that if I am not to raise the money --

LORD JUSTICE THORPE: Have you got the bit of paper on your side?

MR TILER: No, my Lord.

THE APPLICANT (MRS SHERIF): Judge Ryland knows about it because he has agreed.

LORD JUSTICE THORPE: We had better have a transcript of the exchanges after judgment, had we not?

MR TILER: It would be helpful, my Lord, yes.

LORD JUSTICE THORPE: So you had better ask the transcribers for that.

THE APPLICANT (MRS SHERIF): This is all they have given me, your Honour. In paragraph 4 of the order, your Honour, it says: "Jasmina Sherif buying Ajmal Sherif out".

LORD JUSTICE THORPE: I see that.

THE APPLICANT (MRS SHERIF): That is why he was giving me three months.

LORD JUSTICE THORPE: That should have been recorded in this order. The nature of the agreement as to the wife buying out the husband should have been recorded on this order so that everybody knew where they stood.

THE APPLICANT (MRS SHERIF): Yes, that's right. That's what I asked for.

LORD JUSTICE THORPE: The time within which and the price at which the wife's option ran.

MR TILER: My Lord, if that was part of the judge's order then that would be right, yes. I have a note of his order in my notebook. It simply does not record any such agreement, although if a transcript be needed --

LORD JUSTICE THORPE: It is obvious that there was such an intention because paragraph 4 demonstrates it.

MR TILER: Yes, my Lord, I can see that.

LORD JUSTICE THORPE: You would not have drafted paragraph 4 as you did had you not been conscious of the lively possibility that Mrs Sherif would raise the money to buy him out.

MR TILER: My Lord, I follow that.

THE APPLICANT (MRS SHERIF): I would just like to say, your Honour, that if I have not managed to raise the £60,000, I would like a new valuation of both properties because, as I explained to you, there will be a loss on the increased value --

LORD JUSTICE THORPE: I have given an hour and three quarters to a case that should have taken me 20 minutes and there is another case waiting. That is as much as I can do in this fraught case today. You had better sort this out between you and if need be get in a mediator if you cannot negotiate.

THE APPLICANT (MRS SHERIF): I tried to communicate with Mr Tiler after the hearing and he told me he does not want to talk to me. He returned my correspondence. He said he had nothing to do with him and he will never have any dealings with his client any more. Now we are back again. I am a litigant in person. I have no family here. I don't know what to do. They are trying to take me for a fool, your Honour. They know I suffer from depression and they are playing games with me. They won't listen to me. I have spent hours in the Citizens' Advice Bureau. These are the only people who help me. They can see the mistake. Mr Tiler completely ignores me if I write to him.

LORD JUSTICE THORPE: There it is. You had better get a transcript of the exchange after judgment.

THE APPLICANT (MRS SHERIF): I have borrowed the money for this judgment and it is not there. I don't know why.

LORD JUSTICE THORPE: They have only given you the judgment. Mr Tiler, do you have a note of the exchanges after judgment?

MR TILER: My Lord, I have not.

LORD JUSTICE THORPE: What about your instructing solicitor?

MR TILER: My Lord, I had no one there at the time to save costs -- only Mr Sherif came along with me.

LORD JUSTICE THORPE: Who are the solicitors instructing you?

MR TILER: Today, my Lord?

LORD JUSTICE THORPE: Yes.

MR TILER: William Sturges.

LORD JUSTICE THORPE: I see. Were they instructing you before?

MR TILER: My Lord, yes.

LORD JUSTICE THORPE: I see. But they did not send anybody to the hearing?

MR TILER: It sometimes happens like that, my Lord.

THE APPLICANT (MRS SHERIF): My Lord, he was not instructed. Counsel was not instructed by solicitors last time because I contacted myself the solicitors, Southall Wright, and was told that they had nothing to do with it.

LORD JUSTICE THORPE: He says the firm of solicitors instructing him are called William Sturges & Co, in Ealing.

THE APPLICANT (MRS SHERIF): Sir, they were not instructed before.

MR TILER: Before the district judge, my Lord.

LORD JUSTICE THORPE: Are they on the record?

MR TILER: They should be on the record, my Lord, yes. Southall Wright, Legal Advice Centre, before the district judge, and William Sturges for the previous two hearings -- today's hearing and before the circuit judge.

LORD JUSTICE THORPE: William Sturges?

MR TILER: My Lord, yes.

LORD JUSTICE THORPE: (To the Associate) Are they on the record?

THE ASSOCIATE: My Lord, they are not on the record. I asked counsel this afternoon before we came in and he gave me the address of William Sturges.

LORD JUSTICE THORPE: Why are they not on the record?

15. MR TILER: My Lord, they sent notice of acting. I do not know why they are not on the record.

LORD JUSTICE THORPE: You had better get them on the record quickly.

MR TILER: My Lord, yes -- if indeed they can be instructed by Mr Sherif after this hearing. I know that Mr Sherif wanted me to appear on his behalf through them for today only.

LORD JUSTICE THORPE: The fact is that they have been on the record throughout.

MR TILER: Yes.

LORD JUSTICE THORPE: If they want to come off the record, then they have to file notice of change.

MR TILER: Yes, my Lord.

LORD JUSTICE THORPE: It is most unsatisfactory that they are the solicitors who are instructing you -- the solicitors who were instructing you in front of the judge and they have never come on the record.

MR TILER: My Lord, I cannot make it any clearer than I have.

LORD JUSTICE THORPE: Who is the partner dealing with it?

MR TILER: Mrs Lizra.

LORD JUSTICE THORPE: Will you convey to her a direction that she write to the court to explain why she is not on the record and to rectify whatever errors there are in this regard?

MR TILER: Yes, my Lord.

LORD JUSTICE THORPE: (To the Associate) Would you kindly make a note to that effect?

THE APPLICANT (MRS SHERIF): Your Honour, I would like to say that Mr Tiler was not instructed by solicitors at the hearing before Judge Ryland because he himself said to Judge Ryland, "I have only been instructed by Mr Sherif yesterday afternoon to attend the hearing." There was no mention of any solicitor. I wrote to Mr Tiler and he told me that he does not want to have further dealings with the case.

LORD JUSTICE THORPE: Mr Tiler is a member of the Bar. There is no point in writing to him. You have to write to the solicitors instructed.

THE APPLICANT (MRS SHERIF): But there were no solicitors, your Honour. I wrote to Mr Tiler because he didn't have any solicitors.

MR TILER: My Lord, what Mrs Sherif means is that after the hearing before Judge Ryland she wrote to my at my chambers. My clerk replied to her that I could not help her because I was not acting for Mrs Sherif and could she therefore please write to Mr Sherif directly.

LORD JUSTICE THORPE: Why did your clerk not say, "Write to William Sturges & Co, the firm who instructed Mr Tiler"?

MR TILER: The reason for that, my Lord, was because they were only instructing me for the purposes of that hearing. Mr Sherif acted on his own account as a litigant in person for all other occasions.

LORD JUSTICE THORPE: It does not look very good, Mr Tiler.

THE APPLICANT (MRS SHERIF): I have no one to write to, your Honour. I can't correspond with these people. They are ignoring me.

LORD JUSTICE THORPE: You are now saying they are on the record?

MR TILER: My Lord, I know they sent a notice of acting for the purpose of today's hearing. I know it is not on the record, but things can happen like that sometimes. They cannot always find their way through. But they are instructing me today and that is all there is to it really.

LORD JUSTICE THORPE: We also need a date in the order which has to be redrawn for the working out of Mrs Sherif's purchase, alternatively the sale. Now, the order was obviously intended to be three months. She was to have three months in which to achieve her purchase.

THE APPLICANT (MRS SHERIF): Yes, I would like to have that again, your Honour.

LORD JUSTICE THORPE: So the date to go into paragraph 2 will therefore be -- we are now 3 October, so 3 January.

THE APPLICANT (MRS SHERIF): Your honour, if I can just say about the mistake of the order again which I wrote to Mr Tiler and to Judge Ryland? If I would decide that I cannot raise the money or the bank will turn me down, there should be a new valuation of both properties?

LORD JUSTICE THORPE: I am not going into that.

THE APPLICANT (MRS SHERIF): Because I would not receive my fair share of 40 per cent. I would lose that 40 per cent.

LORD JUSTICE THORPE: So the essential variations to the order are for the date of 3 January 2002 to go into paragraph 2(a), and the sum of £152,000 to go into paragraph 2(c)(iii). That is as far as I can take it. As to the price at which you buy him out, which you say it is agreed at £60,000 --

THE APPLICANT (MRS SHERIF): Yes, that is right, your Honour. It was written by Mr Tiler and he asked me to sign.

LORD JUSTICE THORPE: That ought to go into paragraph 4.

THE APPLICANT (MR SHERIF): That is not true, your Honour.

THE APPLICANT (MRS SHERIF): Your Honour --

LORD JUSTICE THORPE: That is enough.