Swindale v Forder & Anor

The inherent jurisdiction and the slip rule may correct an order so that it records the court’s original intention. They cannot be used to make a substantive variation of a property adjustment order. Where enforcement of a charge is postponed until a home is no longer required for a wife and her children, the proper construction may require the home to remain necessary for the wife and at least one child. The issue is determined by the reality of the living arrangements, not a hope that a child may return. Once the trigger event occurs, the court cannot suspend enforcement indefinitely or rewrite the charge in the interests of broad justice. A chargor must instead rely on the limited remedies available under mortgage law.

Ancillary relief proceedings concerning Mr and Mrs Forder included an intervention by Miss Swindale, who claimed an interest in the former matrimonial home. Coleridge J made an order transferring the husband’s interest to the wife, subject to a charge in favour of Miss Swindale for 17% of the gross proceeds of sale. Enforcement was postponed for ten years, or earlier specified events, but the drafted order omitted the judgment’s reference to the house no longer being required as a home.

After the children began living with their father, Miss Swindale applied for correction of the order under the slip rule, enforcement of the charge and sale of the property. The President amended the order, valued the property at £750,000, allowed six months for redemption and permitted an application for relief if the wife could raise only a lesser sum. The appeal concerned the proper correction, whether enforcement had become available, and the extent of the court’s power to grant further indulgence.

Disposition. The Court of Appeal, in a unanimous judgment delivered by Ward LJ with Wilson LJ agreeing, granted permission and allowed the appeal in part. The original order was corrected, the redemption period was extended to 22 February 2007, and the proviso allowing further suspension of enforcement on payment of a lesser sum was deleted. Otherwise, the appeal was dismissed.

1. Slip rule. Although the court had no power under the Matrimonial Causes Act 1973 to substantively amend the property adjustment order, it had inherent jurisdiction to clarify its own order. The slip rule could be used to correct the drafting omission and give effect to the intention revealed by the judgment read as a whole (paras [23]–[31]).
2. Construction of the trigger. The purpose of the postponement was to balance the interests of the wife and children with those of the intervenor. The correct wording was that the house was no longer required as a home for the petitioner and at least one child. The President’s wording using or was therefore erroneous (paras [26]–[31]).
3. Enforcement. The property was no longer required as a home for any child because all the children were living with their father. The possibility that they might return did not prevent enforcement; reality prevailed (para [32]).
4. Valuation and redemption. The President was entitled to determine open-market value from the written valuations. There had been directions for valuation evidence, no further evidence was permitted, and there was no discernible protest to deciding the issue on the reports. The valuation of £750,000 and the resulting charge of £127,500 were upheld. A short further extension was justified by the appeal and difficulties caused by the unilateral notice (paras [33]–[35]).
5. Further relief. Once the trigger event occurred, the court could not substantially alter the charge in the interests of broad justice. The order was made under s.14(2) of the Trusts of Land and Appointment of Trustees Act 1996. The reasoning in Omielan v Omielan [1996] 2 FLR 306 supported the conclusion that even a discretionary property settlement could not be varied. Any further indulgence had to be considered under mortgage law. The limited power under s.36 of the Administration of Justice Act 1970 did not justify the President’s proviso (paras [36] and [46]).

• Court of Appeal (Civil Division): Permission granted. Appeal allowed in part by correcting the trigger wording, extending the redemption deadline and deleting the proviso permitting further suspension of enforcement; otherwise dismissed.
• High Court, Family Division, President: Amended Coleridge J’s order under the slip rule, valued the property at £750,000, allowed six months for redemption and permitted an application concerning payment of a lesser sum.
• High Court, Family Division, Coleridge J: Made the original ancillary relief order on 29 November 2002 in F v F (S Intervening), [2002] EWHC 2814 (Fam), reported at [2003] 1 FLR 911.