England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Friday, 17th May 2002

1. LORD JUSTICE WARD: When Lord Justice Thorpe dealt with this matter on 3rd October 2001 he said that the case seemed to be dogged by misfortune. I have no reason to disagree with him. In fact, that is only a polite way of saying that the case is a mess.
2. The order then under appeal was the order drawn after Judge Ryland disposed of an appeal from the district judge in ancillary relief proceedings between this husband and wife. That order dated 19th June provided for a property, 68 Preston Road, Wembley, to be sold on a date approximately three months after the hearing. The order as drawn required that the wife was to receive forty per cent of the net proceeds of sale. In addition, by paragraph 3 of that order she was to receive a further sum of £23,000. In paragraph 4 the order mentioned the possibility of the wife buying out the husband's interest in the property; and, having read the transcript of what followed after the conclusion of the judge's judgment, it is clear that everybody envisaged that the wife was wanting the three months between the date of judgment and the date the property had to be put on the market, 18th September, to make arrangements to buy out her husband's interest.
3. Unfortunately, as Lord Justice Thorpe observed, the order was incorrectly drawn by counsel. The error is explained in paragraph 9 of Lord Justice Thorpe's judgment. He said:

"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." [The district judge would have awarded her £110 plus the £23,000 from the proceeds.] "That is a correction which must be achieved. The question is whether an appellate review is necessary to achieve it. [Emphasis added]"

4. His Lordship decided that it was not necessary for the Court of Appeal to intervene. Consequently, he came to the conclusion, expressed in paragraphs 12 and 13, that the wife's application for permission to appeal the order must be dismissed, but he added:

"... 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.

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. [Emphasis added]"

5. The matter therefore went back to Judge Ryland. We do not have a full transcript of what happened there because everything appears to have been lost, but we do have a note prepared by the judge to explain what he was doing. He says in that note:

"... I was not willing to vary my judgment but merely the terms of the Order. I agreed that there should be included the fact that the wife wanted to buy out the husband's interest and I agreed to give directions to facilitate that or for the sale of the house in the event that the wife was unable to raise the money. I further indicated that I would draw up the Order so that it reflected my judgment."

6. The order which he drew, which is now the order in respect of which Mrs Sherif seeks permission to appeal (though, reading her notice, she seeks permission to appeal many other orders as well), is the order of 6th February, which states that it supersedes the order of 16th January, which was made, I think, in the absence of Mrs Sherif. Paragraph 2 gave permission to Mrs Sherif to buy out the interests of her husband. Paragraphs 3, 4, 5, 6 and 7 dealt with the mechanics of obtaining an agreed valuation for the property in order to effect a proper buy-out of the interest. Paragraph 8 provided that Mrs Sherif exercise the option by four o'clock this afternoon, which gives her exactly 58 minutes to do so. That is obviously not going to happen.
7. The important paragraph is paragraph 9:

"The price at which the Applicant may exercise the said buy-out option shall be calculated as follows (a) From the agreed valuation or from the valuation as determined by the Court appointed Valuer there shall be deducted (1) the amount of £9,651.53 being the sum awarded to Mrs Saida Sherif towards her costs in these proceedings by His Honour Judge Copley on 7th April 2000. And (2) any costs reasonably incurred by the Applicant in obtaining the services of a Solicitor or Conveyancer in effecting the transfer of the Title of the property to her. Thereafter, from the remaining sum the Respondent shall give credit to the Applicant for the following sums: (1) the sum of £152,000, and (2) the sum of £10,000 and (3) the sum of £13,000, such sums being the amounts adjudged by His Honour Judge Ryland on appeal by the Applicant from the order of District Judge Morris as being the proper amount for the Applicants' entitlement to joint assets of the parties, which said amount approximated to a proportion of 40% of such joint assets. [Emphasis added]"

8. Apart from the explanatory concluding words, that is a readily understandable order. The valuation is agreed. The respective sums are taken off the balance and the difference is then to be paid by the wife to the husband.
9. Paragraph 10 causes difficulty:

"In the event that the agreed valuation or the valuation of the property as determined by the Court appointed Valuer exceeding the sum of £235,000 the Respondent shall give credit to the Applicant, in addition to the credits set out in paragraph 8 herein amounting to £175,000, for a figure amounting to 40% of the sum by which the agreed or determined valuation exceeds the figure of £235,000."

10. The order went on to direct that if the buy-out provisions were not exercised the property was to be put on the market for sale at a figure of no less than £235,000, and similar provisions were made, this time leaving a sum payable to Mrs Sherif. It was to be a clean break.
11. Mrs Sherif's principal complaint (which I do understand, despite the fact that she appears to believe I do not) is that she was intended by Judge Ryland to have forty per cent - no more, no less - of the joint assets of the parties on such day as the division of property came to be effected. That would be on the sale of the property to her, buying out her husband's interest, or on the sale of the property on the open market, whichever event happens to take place. She says that that was what was intended, and she refers to p.9G of Judge Ryland's judgment, where, having analysed the district judge's judgment, he worked out that the district judge took a percentage of about 35 per cent. Judge Ryland said:

"I think a fair proportion would be a 40% proportion of the joint assets."

12. Again, at page 10B, he said:

"... I have come to the conclusion that the correct proportion which it is fair and reasonable in all the circumstances to grant to this wife is a proportion of 40%. That, according to my calculations, amounts to a figure of £152,000."

13. At page 11D he said:

"In the end result for the reasons that I have attempted to give I think that to a limited extent 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."

14. I can understand that Mrs Sherif firmly believes that the amount she should get is forty per cent of the overall joint assets on the day that the respective payments are made one to the other. I fear that is not the way the order was drawn. The order is much more in the nature of a lump sum order giving her £152,000 plus £10,000 plus £13,000 - £175,000. The justification for arriving at those figures is that £152,000 is, in the circumstances as they appeared to the court at the time, forty per cent of the joint assets. I have endeavoured to explain to Mrs Sherif, without success, that the judgment is, as I believe, a judgment in effect for specific sums assessed to be £152,000 plus the further £23,000, which is justified as a proportion of forty per cent of joint assets, as opposed to an order which gives her a lump sum equal to forty per cent of joint net assets at whatever date one chooses to value those joint assets. I do not believe the latter was intended, nor was the order made, but Mrs Sherif points to references in Lord Justice Thorpe's judgment to her having forty per cent of the overall assets, not forty per cent of just one of the properties, and she builds her argument on that: that it would be unfair for her to have to pay out to the husband sixty per cent of the increase in the value of Preston Road without her getting credit for forty per cent of the increase in the other property which forms the major part of the pot which has to be divided. I see the unfairness, but I doubt whether it justifies a second appeal.
15. She has another formidable difficulty which she has not allowed me to articulate, but which I will spell out in any event. There are in this troublesome case formidable difficulties about renewing permission to appeal which has been dismissed by Lord Justice Thorpe, relating it to an order of 6th February which is not a fresh order but an order effectively drawn under the slip rule.
16. I think that her prospects of success are limited, but she has persuaded me that she should be allowed to renew her application on notice to her husband, with the appeal to follow if permission is granted. I will direct that that should come back before Lord Justice Thorpe as soon as possible, if practicable. Meanwhile, I shall stay the execution of the order of 6th February, but with liberty to the respondent to apply to vary or discharge that part of the order. The respondent should get a copy of this judgment at public expense. I do not encourage him to come rushing to this court to seek to lift the stay. The sooner the court grapples with this problem and ends it once and for all the better.
Order: application adjourned to be heard on notice to the respondent as soon as possible, with appeal to follow if permission granted (before Thorpe LJ, if possible, and one other judge, time estimate 1½ hours); stay of execution of order of 6th February, with liberty to the respondent to apply to vary or discharge that part of order, at his own risk as to costs; transcript of judgment to be provided to respondent at public expense.