Rasool v Khushi

On a second appeal, permission requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case. A court determining ancillary relief may assess the appropriate percentage division of assets but must give effect to that assessment through an available order, such as a lump sum or transfer of property. A foreseeable fluctuation in share values will not ordinarily constitute a Barder event, particularly where the assets form a mixed portfolio and the order allowed alternative means of compliance. A later change in the parties’ financial position does not establish that an order was plainly wrong when made.

The former husband sought permission for a second appeal against ancillary relief orders made by District Judge Shannon in the Manchester County Court and upheld by His Honour Judge Earnshaw on appeal. The orders divided combined assets unequally, required payment of a substantial lump sum, and imposed limited periodical payments. The husband challenged the form and division of the award, alleged errors concerning the wife’s earning capacity and the welfare of the child, and relied on a subsequent fall in asset values as a possible Barder event. The central questions were whether the statutory and second-appeal thresholds were met and whether the market fall justified reopening the orders.

1. Permission for a second appeal refused. The application was substantially out of time and, in any event, did not raise an important point of principle or practice or another compelling reason for a second appeal.
2. The statutory distinction between assessing the appropriate percentage division of capital and making the operative order was material. Although a court may use percentages in reaching its assessment, it must then make an order within its statutory powers, including an order for a lump sum or transfer or settlement of property under Matrimonial Causes Act 1973, section 24. Leaving the parties to implement a percentage division themselves was not an appropriate alternative.
3. The accepted error in describing the child’s welfare as the court’s paramount concern, rather than its first consideration under section 25(1), did not provide a compelling reason for a second appeal on the facts.
4. The subsequent fall in the value of some assets was not arguably a Barder event. Applying the analysis in Cornick v Cornick [1994] 2 FLR 530, foreseeable movements in stock and share values generally lacked the necessary character. The mixed portfolio, possible movements in other asset classes, the current valuations used when the order should have been complied with, and the husband’s choice as to how to satisfy the order reinforced that conclusion.
5. The fact that the order’s net effect appeared different when viewed later did not show that it was plainly wrong when made. The application for permission was therefore refused.

• Court of Appeal (Civil Division): Permission for a second appeal refused.
• Manchester County Court: District Judge Shannon made ancillary relief orders on 12 October 2000.
• Appeal before the Circuit Judge: His Honour Judge Earnshaw dismissed the husband’s appeal in judgment dated 16 March 2001, with order dated 20 March 2001.