England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
CENTRAL LONDON CIVIL JUSTICE CENTRE
(His Honour Judge Ryland)

		The Royal Courts of Justice The Strand London Wednesday 19 June 2002

Wednesday 19 June 2002

1. LORD JUSTICE THORPE: This is an application by Jasmina Sherif to appeal an order made by His Honour Judge Ryland in the Central London Civil Justice Centre on 6 February 2002. The case has been to this court twice before. On the first occasion it was listed before me when Mrs Sherif appeared in person and Mr Sherif appeared by Mr Tyler of counsel. On that day I said that the case was one that had been dogged by misfortune, since there had been two relatively full-scale hearings in the county court, one conducted by District Judge Morris, which apparently extended over nine days, and then the appeal before Judge Ryland, which was concluded on 19 June 2001.
2. Before me on 3 October both these parties were dissatisfied with the order of the judge. The husband (if I may so call him) was basically dissatisfied by the extent of the wife's success in the appeal. The circuit judge had raised her share of the available assets from 35 to 40 per cent. The wife was dissatisfied because the order, as drawn by the court, did not achieve for her 40 per cent of the assets but a figure based upon 40 per cent of only one of the two residential properties in north London. So miscalculated, her share fell not only below the 40 per cent intended by the judge but below the 35 per cent originally intended by the district judge. This was plainly not Judge Ryland's intention. It was, equally plainly, the effect of inaccurate drafting by counsel who then represented the husband, the husband being the only one represented on the appeal.
3. However, I refused both applications for permission on the simple ground that the manifest injustice to the wife could be easily corrected by a return to the county court with an application to the judge for amendment of the order to reflect the judgment's true intention. That return to the county court seemingly was fixed for 16 January, but on that date the wife was ill and did not appear, and the husband appeared in person. That resulted in an order which was plainly not satisfactory and the parties appeared before the judge again on 6 February.
4. On this occasion they were both there and both in person. The judge went into the case very thoroughly. He fully comprehended the deficiencies of the order as drafted by counsel following the hearing on 19 June 2001, and he set about the task of ensuring that a comprehensive, clear order resulted, an order that would truly reflect his intentions as expressed in his judgment of 19 June.
5. We have nothing that survives of the hearing on 6 February other than the order itself, because subsequent attempts to obtain a record of judgment or record of proceedings have met with the depressing response that the tapes of the hearing have either been lost or mislaid, and equally the judge's notebook has disappeared from the place where it should have been stored.
6. All this was brought before the court on an application by the wife for permission to appeal the order of 6 February. Ward LJ dealt with the application on 17 May, and he identified the wife's one complaint in relation to that return visit to the county court. The assets of the parties were relatively uncomplicated. There were the two residential properties in north London which, after allowing for notional costs of sale and the outstanding mortgage on one, had a net equity of roughly £330,000. There were then two insurance policies and the husband's pension, bringing the total up to £380,000. The order of 6 February was a complex order, providing first an option for the wife to buy out one of the two properties, namely the more valuable, in which she continues to reside. The order then provided that if the wife did not exercise the option within a period of three months, the property was to be sold and the proceeds divided on the same basis of division as regulated the price that the wife was to pay should she exercise the option.
7. The definition of the price to be paid falls in two paragraphs of the order of 6 February. The first paragraph proceeds on the basis of the historic valuation of the property at £235,000, which was established in 1999 and which is the value applied in the summation of the relevant assets at £380,000. But paragraph 10 provided that, should the property hold a current value in excess of £235,000, then the wife should effectively pay in addition 60 per cent of the uplift.
8. Manifestly an uplift is inevitable, given the substantial uplift in property prices over the course of the last three years. So the earlier paragraphs of the order, from paragraph 3 to paragraph 7 inclusive, provide a relatively elaborate mechanism for establishing the modern value. Nowhere in the order of the 6 February is there any reflection of the equally inevitable fact that the secondary property occupied by the husband will also have increased in value between the 1999 figure, which is imported into the summation of the relevant assets, and the current value. That was the wife's complaint to Ward LJ and, although pointing out to her the huge hurdles in her path, he nonetheless gave her the opportunity for an oral hearing of her permission application on notice, with appeal to follow if permission granted. He said that the hearing should last an hour and a half and it should be listed before me and another judge.
9. So this morning we have heard argument from Mrs Sherif in elaboration of this basic complaint. We have also heard submissions from the husband, who makes the telling point that, although the parties were only married for six years, they have now spent the last five trying to sort out the consequences of the breakdown of their relationship. If he will allow me to say so, I think his position can be fairly summarised by saying that he is fed up with the whole affair and only wishes to see conclusion. He is not challenging the terms of the order of 6 February and would be content for that order to stand and to be implemented.
10. At first sight, the wife's submission is attractive. Manifestly, if finality between the parties on the basis of a buy-out is the elected way, then revaluation of one property without revaluation of the other would inevitably distort the judge's fundamental underlying intention that the wife should receive 40 per cent of the available net assets. But there is an answer to this, in that seemingly the judge has confirmed what was a possible error in his original judgment of 19 June 2001. The error was one to which I had drawn attention in my judgment of October 2002. It comes from a contrast between the judge's words at page 9, where he said at line G: "I think a fair proportion would be a 40% proportion of the joint assets." He then on the following page said that, according to his calculations, 40 per cent of the joint assets amounted to £152,000, but continued: "To be added to that is the figure of £10,000 for the credit cards and £13,000 for the pension provision." The same is to be found on the following page 11, where at letter D he said:

"... I propose to allow this appeal. I propose to say that there should be a 40% interest in the house given to this wife. I propose to say that added to that should be the £10,000 for the credit cards that the District Judge envisaged and the £13,000 for her pension provision."

11. So, contrasting the three passages, one sees an intention to safeguard to the wife 40 per cent of the net assets ie £152,000; the second passage seems to safeguard to her not only £152,000 but the additional figure of £23,000 which, in percentage terms, comes to 46 per cent of the assets; and the third passage seems to restrict her to a 40 per cent share in the major property, plus £23,000, which amounts to a figure of only just over £100,000 and only 29 per cent of the assets.
12. This confusion was obviously drawn to the judge's attention when he revisited the case in February. Nonetheless, he has, in his expression of the price to be paid by the wife in the event of her exercising the option -- that is paragraph 9 of his order -- and in the sum to be received by her in the event of sale -- that is paragraph 14 of his order -- vouchsafed to her the highest of the three sums, namely the 40 per cent of the available net assets, uplifted by the cash sum of £23,000, which has the effect of carrying her to 46 per cent of the available net assets on a 1999 valuation.
13. Looking at it in the round, it seems to me that any prejudice to the wife through the judge's failure to provide for a revaluation of the secondary property is offset by his seemingly deliberate allowance for her of the £23,000 in addition to the sum that represents 40 per cent of the net available assets at the 1999 valuations.
14. Mr Sherif has said that he believes that the uplift in the value of the secondary property over the last three years probably amounts to about £60,000. If that be right, the 40 per cent share of that which the wife is denied by the order of 6 February is almost precisely matched by the windfall figure of £23,000 which is vouchsafed to her by both paragraph 9 and paragraph 13 of the order.
15. For those reasons it seems to me that there is no reason for this court to interfere, save to up-date the trigger dates which appear throughout the order of 6 February. That, of course, is not to interfere in any way with the effect of the order, but only to up-date its implementation to allow for all the lost months caused by the application for permission.
16. So it seems to me that what is required is to substitute in paragraph 4, for the date of 8 March in the fourth line a date of 20 July, with consequential updating to 27 July and 12 August; and then in paragraph 6 the date of 29 March will again be 12 August; in paragraph 7 the date of 26 April will become 10 September; in paragraph 8 the date for exercise of buyer's option becomes 1 October; and in paragraphs 12 and 13 the date for marketing the property will be up-dated to 8 October. Subject to those revisions, which are purely a reflection of lost time, I would not make any invasion of the judge's careful work. These revisions of dates can be achieved without granting permission, or even a technical reception of the appeal, and so the only order that it is necessary for the court to draw is on the basis that the dates within the order of 6 February to be rewritten as I have indicated. On that basis the application for permission is dismissed.
17. MR JUSTICE WALL: I agree. It must, I think, be remembered that the referral back to the judge which my Lord made on 3 October 2001 followed a refusal to both parties of permission to appeal. The purpose of referral back was accordingly to ensure that the order of the court, as drafted, reflected the true intentions of the judge in making the order.
18. Clearly, when the matter was before him on 6 February 2001, as my Lord indicated, the judge went into the matter with a great deal of care. I am entirely satisfied that in that process he has truly reflected the intentions which he had when he made his original orders on 19 June 2001. He has provided both for the prospect of the property being sold and Mrs Sherif achieving her 40 per cent in the additional proceeds of sale if the value, as anticipated, has increased since the date of the order. Equally, he has provided carefully for her to buy out Mr Sherif on the same basis. I entirely agree with my Lord that any potential injustice which Mrs Sherif may see in that order, namely that it does not take into account any increase in the valuation of the second property at Branksome Way, is met by the original order of the judge, which provided for her to have 40 per cent plus £23,000. On that basis, like my Lord, I see no possible basis for us to interfere with the judge's order save purely administratively to deal with the dates.
19. Like my Lord, I would refuse permission to appeal.
ORDER: Application for permission to appeal refused. Order of 6 February 2002 to be amended in its dates as indicated in the judgment. (Order not part of approved judgment)