Sherif v Sherif

Where an appeal has already been heard in the court of trial, section 55 of the Access to Justice Act 1999 requires an important point of law or practice or another compelling reason before a further appeal can proceed. A possible judicial or drafting slip is not compelling where the trial court can correct the order under the slip rule. Permission should therefore be refused while the order is redrawn to reflect the lower judge’s intended disposition.

The former spouses’ ancillary relief proceedings were initially determined by District Judge Morris in the Willesden County Court. The wife received £133,000, including provision for rehousing, pension loss and debts. On the wife’s appeal, His Honour Judge Ryland increased the provision to £175,000. Both parties then applied as litigants in person for permission to appeal to the Court of Appeal. The husband challenged aspects of the calculation and factual findings. The wife challenged the treatment of earlier evidence and the drafting of the order, which appeared to give her only 40 per cent of one property. The central issues were whether either application satisfied section 55 and whether the order could be corrected under the slip rule.

Disposition. Lord Justice Thorpe refused both applications for permission to appeal. The order was to be corrected at trial level under the slip rule.

1. Statutory threshold. Because an appeal had already been heard in the court of trial, section 55 of the Access to Justice Act 1999 applied. The Court of Appeal could extend permission only if there was an important point of law or practice or another compelling reason. No important point of law or practice was shown.
2. Husband’s application. The alleged calculation error might have been a judicial slip, but it was not clearly established and did not constitute a compelling reason. The complaint about the wife’s alleged gift of property could not justify permission because the evidence had already been considered and rejected by the district judge.
3. Wife’s application. The order as drafted materially misstated Judge Ryland’s intention. It appeared to provide 40 per cent of one property, producing about £89,000 after sale expenses, rather than the intended overall provision and potentially leaving the wife worse off than under the district judge’s order.
4. Correction. The error could be remedied without appellate review. Paragraph 2 was to be amended so that the wife received not less than £152,000 on sale, with only the balance going to the husband. Consequential amendments could be settled by Judge Ryland or another trial judge. The parties were also directed to obtain a transcript of the post-judgment exchanges so that the intended buy-out period and terms could be properly recorded.
5. Obiter observation. Counsel settling an order while acting for a represented party against a litigant in person has a particular responsibility to ensure that the order is not unduly favourable to the client or prejudicial to the unrepresented party.

• Court of Appeal (Civil Division): Applications for permission to appeal refused; the order was directed to be corrected under the slip rule: [2001] EWCA Civ 1493.
• Central London County Court: His Honour Judge Ryland increased the wife’s provision from £133,000 to £175,000 on 19 June 2001.
• Willesden County Court: District Judge Morris awarded the wife £133,000 on 30 November 2000.