Sherif v Sherif

In ancillary relief proceedings, an order must be construed by reference to the judgment it records and its operative terms. A percentage used to justify quantifying an entitlement does not necessarily create a continuing percentage share of assets at a later valuation. Where the order specifies assessed monetary sums, it may be a lump-sum order even though those sums were calculated by reference to a percentage of the parties’ assets. An obvious drafting error should, where possible, be corrected under the slip rule. An order redrawn for that purpose is not a fresh merits order, and any challenge remains subject to the applicable permission requirements.

The dispute arose from ancillary relief proceedings between a husband and wife. Judge Ryland, hearing an appeal from District Judge Morris, considered that the wife should receive 40% of the parties’ joint assets, calculated at £152,000, together with £10,000 for credit cards and £13,000 for pension provision.

The resulting order was incorrectly drawn. An earlier application before Lord Justice Thorpe concluded that the error should be corrected under the slip rule rather than by appellate intervention. Judge Ryland subsequently made an order dated 6 February 2002 containing buy-out and sale provisions. The wife sought permission to appeal, contending that she was entitled to 40% of the assets as valued when payment occurred. The central issues were the proper construction of the corrected order and whether it was a fresh order capable of supporting a further appeal.

Outcome. Ward LJ did not grant permission to appeal on the merits. He adjourned the renewed application to be heard on notice to the husband, with an appeal to follow only if permission were granted. Execution of the 6 February order was stayed, with liberty to the husband to apply to vary or discharge the stay.

1. The court considered that Judge Ryland’s judgment had assessed the wife’s entitlement as £152,000, with the additional sums of £10,000 and £13,000. The reference to 40% described the justification for those figures. It did not create an entitlement to 40% of the parties’ net assets recalculated at whatever later date the property was valued or sold.
2. The operative order was therefore in the nature of a lump-sum order. Its buy-out mechanism required valuation of the property, deduction of specified items, and credit for the fixed sums of £152,000, £10,000 and £13,000. The wife’s argument that she should receive credit for 40% of increases in other assets raised an arguable concern about fairness, but did not establish a sufficient prospect of success for a second appeal at this stage.
3. The court also identified a procedural difficulty. The 6 February order was not a fresh merits order, but an order effectively drawn under the slip rule to reflect the judgment already given. The earlier error therefore did not automatically create a new unrestricted route of appeal.
4. Given the confused procedural history and the need for the husband to be heard, the renewed permission application was adjourned on notice, preferably before Lord Justice Thorpe and another judge. The transcript was to be supplied to the husband at public expense.

1. Court of Appeal (Civil Division): On 17 May 2002, Ward LJ adjourned the wife’s renewed application for permission to appeal. The appeal was to follow only if permission were granted, and execution of the 6 February order was stayed.
2. Court of Appeal (Civil Division): An earlier application before Lord Justice Thorpe was dismissed insofar as it sought permission to appeal, while the obvious drafting error was directed to be corrected under the slip rule.
3. Central London County Court: Judge Ryland disposed of an appeal from District Judge Morris and later made the 6 February order, superseding an order of 16 January.
4. District judge: District Judge Morris had made the original ancillary relief order from which the appeal to Judge Ryland arose.