Swindale v Forder & Anor [2007] EWCA Civ 29

Case No B4/2006/1827

[2007] EWCA Civ 29

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISON

SIR MARK POTTER, PRESIDENT

KT99J00921

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 31st January 2007

Before

THE RT HON. LORD JUSTICE WARD

THE RT HON. LORD JUSTICE WILSON

Between

Mary SwindaleAppellant

Michelle Cecilia Culver ForderRespondent

(Transcript of the Handed Down Judgment of

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The appellant appeared in person for in person

The respondent appeared in person for in person

Mr J. Bogle (instructed by Gregory Rowcliffe Milners) appeared for Intervenor

Judgment

[1]Mr and Mrs Forder were married in 1992. They have four children, Henry, who is 14, Eleanor 13, Edward 12, and Benjamin 10 years old. Following the breakdown of their marriage claims for ancillary relief were adjudicated by Coleridge J. as can be seen from a report of his judgment, F v F (S Intervening) (Financial Provision: Bankruptcy: Reviewable Disposition)

[2002] EWHC 2814 (Fam)

[2003] 1 FLR 911

. The very title of the law report indicates that this was a complicated case. Part of the complication arose from the intervention by Miss Swindale described by the judge as “a close friend and former business partner of the husband’s”. She claimed a beneficial interest in the former matrimonial home at 14 Napier Place, London W14, then occupied by Mrs Forder and the four children.

[2]The relevant part of the order made by Coleridge J on 29th November 2002 was:

“7. The respondent [Mr Forder] do transfer to the petitioner [Mrs Forder] forthwith all his legal estate and beneficial interest in the property [14 Napier Place] subject to the mortgage secured thereon on condition that as from the date of the said transfer the property do stand charged by way of legal charge as security for the payment to the first intervener [Miss Swindale] of a lump sum equal to 17% of the gross proceeds of sale PROVIDED ALWAYS THAT (a) Such charge shall not become exercisable until the earlier of (i) 29 November 2012; or (ii) the remarriage or cohabitation of the petitioner with another person as man and wife for a period of 12 months … On or before the exercise of the charge the petitioner shall have the right to redeem the charge at an open market valuation to be agreed, or, in default of the agreement, to be determined by a valuer nominated by the President of the Royal Institute of Chartered Surveyors who shall act as an expert and not as an arbitrator.”

The issues which arise in this appeal are (1) whether that order, which I note with censure was drafted by counsel for the parties, gave full effect to the judgment of the court; (2) whether Miss Swindale can now enforce her charge over the property; and (3) if so, on what terms. (a) Such charge shall not become exercisable until the earlier of (i) 29 November 2012; or (ii) the remarriage or cohabitation of the petitioner with another person as man and wife for a period of 12 months …

[3]This round in the almost ceaseless battle between these parties began with the application made by Miss Swindale in February 2006 for orders that:

“(1) Para. 7 of the order dated 29th November 2002 be varied to reflect the judgment given by Mr Justice Coleridge on that date. (2) The judgment of Mr Justice Coleridge dated 29th November 2002 be enforced. (3) The property located at 14 Napier Place London W14 8LG be sold forthwith and funds distributed according to the order of Mr Justice Coleridge.”

[4]As the order had been drawn, Miss Swindale would not be entitled to enforce her charge because the fixed time (November 2012) has not expired and Mrs Forder has not remarried nor is she cohabiting. Miss Swindale’s case, as stated in her witness statement, is that:

“At the time of the order all four children resided with Mr Forder with Mrs Forder and attended schools in London. By December 2004 all four children resided full-time with Mr Forder attending schools in Cobham within 2 miles of their home. … ‘The property’ is therefore no longer required as a home for the children as intended in the judgment of Mr Justice Coleridge.”

[5]She drew attention to the fact that the head-note of the report of Coleridge J.’s judgment reads: “Accordingly, in so far as the intervener had an interest in 14 N Place, where the wife and children were living, realisation of it should be postponed, the period of postponement to be 10 years or until such time as it was no longer required as a home for the children …” (with the emphasis added by me).

[6]So she seeks a variation under the slip rule to vary the order as it was drawn to add as the third event which would allow her to exercise her charge that the property cease to be a home for the children.

[7]Before dealing with the unhappy progress of her application, I must add more detail to the background. When I referred earlier to the endless - and inevitably disproportionately expensive - litigation in this case, I had in mind, among the battles, that the children’s leaving home led Mr Forder to apply for an extension of time to appeal against the order of Coleridge J asserting on the authority of Barder v Caluori

[1988] AC 20

that the change of residence fundamentally undermined the basis upon which the judge made his order. What he really wanted, of course, was the sale of the property and the payment of a share of the proceeds to him. Arden L.J. and I dismissed that application on 24th November 2005.

[8]Mr Forder is a persistent litigator – Mrs Forder calls him a “vexatious” one. He seeks to intervene in this appeal. He also seeks orders for financial provision for the children supporting that application by saying:

“I stress that I am not seeking any financial provision for myself as I understand that any such application would be attempting to go behind the decision of the Court of Appeal who refused me permission to appeal out of time (under Barder v Barder) the ancillary relief order of Coleridge J of 29th November 2002. However, the needs of the children must still be met and they are clearly paramount, nor can they be overset by our separate needs as parents. If the home is sold then there will be funds available to meet their needs and some of such funds should be earmarked to meet the needs of the children rather than myself or the respondent. Accordingly I request that the court make an order for the sale of the property and for maintenance for the children by way of lump sum and/or periodical payments.”

[9]Mrs Forder has thus been facing a twin-pronged attack on her home. I wonder whether I am being unduly cynical in doubting whether that is pure coincidence. But to return to the narrative …

[10]This application came before Coleridge J. on 2nd May 2006 when he gave directions including the fixing of the hearing before him on 4th May 2006 marking it “NOT AT RISK” for the good and sensible reason that if anyone was to clarify what order should have been drawn after the judgment, it would be the judge who gave judgment. He directed the Petitioner (Mrs Forder) to disclose any proposals she wished to make to pay off part or all of the charge. The value of the property was to be taken as £540,000 unless the Intervener (Miss Swindale) obtained a further expert estimation and he stated that the Respondent (Mr Forder) was not a party to the application and would only attend the adjourned hearing as a witness if required by the Intervener.

[11]It is highly regrettable that the High Court Judges of the Family Division are under such pressure that listing arrangements cannot be kept as they should be and with Coleridge J. unavailable on the day, the matter came before the President on the 24th May. He had no option but to adjourn the matter again to be listed on 25th July before Coleridge J., if available, or himself and he ordered that:

“2. Miss Swindale shall obtain an open market valuation from John Hollingsworth, 84 North End Road … 3. There be no further evidence by the parties. In the event that further evidence is relied on, either party should file and serve their evidence by 10 July 2006.”

[12]On 25th July all the efforts to list the matter before Coleridge J were yet again frustrated. Soon the lack of judges in the Division and the consequence of delays in listing will become a public scandal. The President had to pick up the pieces. He did not have the assistance he deserved because Miss Swindale and Mrs Forder are unable to afford legal representation, another unsatisfactory state of affairs.

[13]He said:

“4. In the course of the judgment, the Judge [Coleridge J.] said a number of things which are relied on by Ms Swindale in support of her application to me. I read from page 930A [of the report in the Family Law Reports]: “The financial needs of the family are overwhelmingly the most decisive factor under s.25 for my consideration, the children’s interests coming first. In particular, the need is for a secure home for the children and their main carer, the wife. The wife is understandably extremely anxious to remain living where she is, 14 N Place. It is by no means large. Indeed, it is a small mews house. However, it is an area where the children have always lived and the wife is surrounded by a support network which, given her parlous financial state, is of special value to her. … Although of course it is possible to find property at an asking price of about the value of the equity in this home, I have to look at the reasonable needs of the children so far as housing is concerned overall. Given the lack of future income support other than via the state and all the other circumstances, I propose to provide a solution which enables the wife and children to stay where they are at least for the foreseeable future. 5. The most important aspect of the judgment comes under the heading “Conclusion” at page 932B, when the Judge said:- “I shall invite counsel to draft an order which reflects the findings and declarations set out above. In essence, I wish to provide orders to meet the following requirements: … (3) a deferred charge to the Intervener for one-third of the present equity in 14 N Place, to be expressed by way of a charge of 17% on the gross proceeds. The purpose of expressing the charge as a percentage of the gross proceeds is to avoid dispute about precisely what amounts to equity at any given time in the future. The period of deferment will be for 10 years or until the wife remarries (or cohabits in circumstances akin to marriage) or the house is no longer required as a home.”

It will be noted that those words were not restricted to a home for the children.” “The financial needs of the family are overwhelmingly the most decisive factor under s.25 for my consideration, the children’s interests coming first. In particular, the need is for a secure home for the children and their main carer, the wife. The wife is understandably extremely anxious to remain living where she is, 14 N Place. It is by no means large. Indeed, it is a small mews house. However, it is an area where the children have always lived and the wife is surrounded by a support network which, given her parlous financial state, is of special value to her. … Although of course it is possible to find property at an asking price of about the value of the equity in this home, I have to look at the reasonable needs of the children so far as housing is concerned overall. Given the lack of future income support other than via the state and all the other circumstances, I propose to provide a solution which enables the wife and children to stay where they are at least for the foreseeable future. “I shall invite counsel to draft an order which reflects the findings and declarations set out above. In essence, I wish to provide orders to meet the following requirements: … (3) a deferred charge to the Intervener for one-third of the present equity in 14 N Place, to be expressed by way of a charge of 17% on the gross proceeds. The purpose of expressing the charge as a percentage of the gross proceeds is to avoid dispute about precisely what amounts to equity at any given time in the future. The period of deferment will be for 10 years or until the wife remarries (or cohabits in circumstances akin to marriage) or the house is no longer required as a home.”

[14]The President then recited paragraph 7 of the order that was made as I have set it out in paragraph 2 above. Then he said:

“8. That was it. There was no reference at all to the indication by the Judge in paragraph 3 of his conclusions, where he had added after “remarriage or cohabitation” the words “or the house is no longer required as a home”

. Thus the order did not contain any provision concerning realisation of the charge at a date earlier than the period of 10 years if the house was no longer required as a home; the only provision for earlier redemption than the expiry of 10 years was the wife’s marriage or cohabitation akin to marriage.”

[15]He dealt first with the question of the form of order and said:

“20. I turn, first, to the question of the form of order. Upon reading the judgment, it did appear to me that the order as drafted by counsel and signed by the Judge appeared to have omitted the clear intention of Mr Justice Coleridge that there should be inserted a provision covering the fact that the house was no longer required as a home and that that must have been overlooked by Mr Justice Coleridge. He was due to hear this application today, but because of listing problems could not do so. Accordingly, I have spoken to him and he has confirmed that he did indeed overlook the absence of the provision which he had indicated at the end of his judgment. 21. In that knowledge, it seems clear to me, from the words in paragraph (3) of the conclusion to the judgment and from the overall effect of what went before, that Mr Justice Coleridge was not concerned solely with the children. He made clear that he balanced the interests of the wife and children, as he put it, against the needs of the Petitioner and the Intervener before making the order that he did. In particular, apart from the question of the children’s home, one of the factors in his judgment which affected the overall provisions made was the mother’s position vis-à-vis her local practice and the income that she was building up working from the advantageous site constituted by the house. It, therefore, seems clear to me that the order should read in paragraph 7 at the end of subparagraph (2), with a proviso inserted as follows:- “or (3) the house is no longer required as a home for the Petitioner and her children or any of them.” 22. Looked at in that light, what is the position in broad justice now? In my view, it is that the house is still required and not unreasonably required by the wife as a home and there remains a chance that before 2012 the children may change their view, as teenagers are likely to do, and that they may wish to use it as a home in a part of London with which they are familiar and thus the wife should not be obliged to move. At the same time, the Intervener is no longer a person of means and has a right to expect that the wife will not just hang on in her own financial interest without regard to the interests of the Intervener. In broad justice, if the wife is in a position to raise some or all of the money necessary to satisfy the charge in whole or in part while remaining in the house, then she should do so in order that the Intervener may receive at least a decent sum on account of the postponement of her charge. It has become apparent before me that Mrs Forder believes that she can in principle raise the necessary money, and the Intervener naturally wishes to be paid off. They want resolution as to the valuation and the payment to be made in so far as I am able to deal with it today.” “or (3) the house is no longer required as a home for the Petitioner and her children or any of them.”

[16]So the President turned to the question of valuations, observing that the parties had placed before him five separate valuations on the basis of which they invited him to adjudicate upon the question of the appropriate market value. The first was a valuation by Meredith, Chartered Surveyors obtained by Mrs Forder valuing the property at £525,000 but apart from some brief reference to comparable values, “the valuation affords little assistance as to the reasoning underlying it. It certainly appears by comparison with any of the other valuations obtained very much on the low side and I consider it of little assistance.”

[17]He then considered two valuations obtained by the Intervenor from John Hollingsworth. The first was a valuation from a Mr Peter Meaham of which the President said:

“28. … There is no clue afforded within the valuation for this exceedingly high figure [£1,250,000], well out of line with all the other valuations, as to the basis on which it is arrived at and I gain no real assistance from it, not least because the third valuation which I have is a valuation also from John Hollingsworth, not by a chartered surveyor but by somebody concerned with sales in the local office, where the market value of the property is said to be in the region of “£790,000-£795,000”. 29. Fourthly, I have the valuation obtained from John Wood, well known agents, effected by one of their chartered surveyors, which is a thorough and impressive report, addressed both to valuation principles and comparables, and is the sort of document that any judge would like to see when called on to deal with matters of this kind. However, even in that respect, there is some reason to question whether, at £800,000, the exercise in valuation may be on the high side, given that Mrs Forder obtained from the same office, from a director of John Wood & Co, a long letter assessing the value of the market and potential buyers and stating in relation to price: “Based on the current condition of the house and that no permission has been granted to use the garage as a kitchen, I would recommend asking a guide price of £625,000. However, if you are under no immediate pressure to sell and would like us to test the market at a higher price, then we could ask £650,000.” 30. I start with the very careful and impressively set out Wood valuation by the chartered surveyor in the sum of £800,000. It would be one approach simply to adopt it without more. However, I am concerned whether that is necessarily a fair approach, given the experience of the director on the marketing side who suggests that the highest price that should be asked with any realistic prospect of sale would be £650,000. Furthermore, other information before me shows that, at £800,000, the valuation per square foot put on the property, which is in any event a relatively dilapidated one, is substantially higher than another recent sale and approaching the rate obtained for a far superior and larger house in the terrace. I, therefore, consider it appropriate to reduce the sum of £800,000, against that view, to a figure of £750,000 as being the fair gross market valuation of this property.” “Based on the current condition of the house and that no permission has been granted to use the garage as a kitchen, I would recommend asking a guide price of £625,000. However, if you are under no immediate pressure to sell and would like us to test the market at a higher price, then we could ask £650,000.”

[18]He expressed his conclusion in these paragraphs:

“31. In those circumstances, I propose to make an order providing for the following matters. On the basis that I have set out in my judgment as to what I believe is fair so far as payment is concerned, and on the basis that the Petitioner intends to use her best endeavours and believes that she will succeed in raising the sum to pay off the entire amount of the charge (which is what both these parties want), I am going to give her an opportunity to do that whilst retaining the possibility, if she is unable to do so, for a return to court to assess what sum justly she ought to pay in any event. It seems to me very difficult to assess that at this stage and I do not want to do anything to discourage her attempt to pay off the charge in full. … 33. It is unfortunate that, because of the uncertainties I have mentioned, this order will not bring final resolution to the matter today. However, it imposes a structure whereby resolution should be achievable in a way which I believe both these parties would like, setting the market valuation for a six month period on which basis appropriate calculations can be done. As I have indicated, if the Petitioner is unable to raise the money, then, on the basis of the order I have made, the charge will become enforceable unless she returns to court and persuades the court that she has used her best endeavours to raise the necessary sum in full and what, in default, is the actual amount that she can afford to pay off to the Intervener, who, in my view, deserves to have something at this stage. That explains the form of the order which I propose to make.”

[19]In the discussion that followed the President addressed Mrs Forder as follows:

“If … for any … odd reason you cannot comply within six months for genuine reasons with the order to redeem the charge, so that in the end you find you can’t raise £125,000 but could say only raise £50,000 or £60,000, then the burden is on you to return to the court. If the six month period expires without your having issued an application to the court in the matter, then Miss Swindale is at liberty to enforce her charge.”

[20]The President also had to deal with another difficulty which emerged during the course of the hearing. It appeared that Mr Forder had registered a “Unilateral Notice” at the Land Registry in respect of the application he made to this Court for permission to appeal and which was dismissed, as I have said by Arden L.J. and me. He refused to vacate it, asserting that it applied equally to his new application for financial provision for the children. The President would have none of that, and rightly so. He invited Mrs Forder to make an ex parte application for an order directing the husband to withdraw his Unilateral Notice and/or not to lodge any further such notice without leave of the court. He then held:

“32. I also propose to make an ex parte order that the Unilateral Notice at the Land Registry be removed. I can see no proper basis on which it is there at the moment, at least in its current form, and, so far as any further notice is concerned, it seems to me it would be quite wrong, in view of the husband’s history, background and apparent intention to outflank the Court of Appeal, to allow him simply to place another notice on the Register without the leave of the court. I propose to make provision for that in this order.”

[21]The order drawn was in these terms:

“And on the basis that the petitioner will use her best endeavours within six months to raise the sum of £127,500 for the purpose of redeeming the intervenor’s charge over the property, calculated on the basis that such sum represents 17% of the gross proceeds of sale at an open market valuation of £750,000 IT IS ORDERED THAT: (1) The respondent withdraw his objections to cancellation of his Unilateral Notice as set out in the letter from Gregory Rowcliffe Milners to HM Land Registry dated 20 July 2006 and that he refrain from renewing or lodging any further such Unilateral Notice in respect of the pending proceedings without leave of the court. (2) Paragraph 7 of the order of Coleridge J dated 29 November 2002 be amended by the addition of words at the end of sub-paragraph a (ii) of the proviso as follows: ‘or (iii) the house is no longer required as a home for the petitioner or her children or any of them’ (3) That in default of the petitioner redeeming the said charge in the said sum by 25 January 2007, the intervener be at liberty to enforce the said charge. Provided that, the petitioner be at liberty to apply prior to that date to the court on the grounds that, despite her best endeavours, she is unable to raise such sum, with a view to this court ordering payment of such smaller sum (if any) as may be just on account of her liability to the Intervenor under the said charge as set out in the order of Coleridge J as varied, enforcement of the said charge being superseded upon such application. And that the respondent have liberty to apply to the court in respect of the order in (1) above on 7 days’ notice to the petitioner and Intervenor.” (1) The respondent withdraw his objections to cancellation of his Unilateral Notice as set out in the letter from Gregory Rowcliffe Milners to HM Land Registry dated 20 July 2006 and that he refrain from renewing or lodging any further such Unilateral Notice in respect of the pending proceedings without leave of the court. (2) Paragraph 7 of the order of Coleridge J dated 29 November 2002 be amended by the addition of words at the end of sub-paragraph a (ii) of the proviso as follows: ‘or (iii) the house is no longer required as a home for the petitioner or her children or any of them’ (3) That in default of the petitioner redeeming the said charge in the said sum by 25 January 2007, the intervener be at liberty to enforce the said charge. Provided that, the petitioner be at liberty to apply prior to that date to the court on the grounds that, despite her best endeavours, she is unable to raise such sum, with a view to this court ordering payment of such smaller sum (if any) as may be just on account of her liability to the Intervenor under the said charge as set out in the order of Coleridge J as varied, enforcement of the said charge being superseded upon such application. And that the respondent have liberty to apply to the court in respect of the order in (1) above on 7 days’ notice to the petitioner and Intervenor.”

[22]Miss Swindale applied for permission to appeal that order and I adjourned her application to be heard on notice with the appeal to follow if permission were granted. For the reasons set out below, I would grant permission. I turn, therefore, to the issues that arise in the appeal.

[23]The starting point for this discussion is to note that paragraph 7 of the order made by Coleridge J was an order made in the ancillary relief proceedings for a transfer of property from Mr Forder to Mrs Forder Swindale of all his legal estate and beneficial interest in the property subject to the mortgage thereon and subject further to the charge in favour of Miss Swindale. Apart from Mr Forder’s later attempt to appeal that order, no other appeal was launched, certainly not by Miss Swindale. Consequently that order stands and there is no power in the court that made it to vary it, subject to the slip rule. The order will by now have been executed: the property will have been transferred from the husband to the wife and the charge will have been registered. It is much too late to quibble and to allege some inconsistency with the first declaration made in the order that:

“Prior to this order the properties known as 14 Napier Place … were held by the respondent on trust for himself and the first intervenor in the following shares: as to ⅓ to the first intervenor and ⅔ to the respondent.”

Consistently with that declaration the property adjustment order could and did only relate to the husband’s legal estate and to his beneficial interest which by the declaration was limited to ⅔ of the property. How the intervenor’s ⅓ beneficial interest was converted to a charge may be the subject of speculation because there is no power to adjust her interest in the property but in the events that have happened, all of that is an idle speculation. Should Miss Swindale begin to think from these observations that an injustice has been done to her, she is wrong. Her position is for all practical purposes the same as the charge of 17% of the gross proceeds of sale was carefully structured to put her in exactly the same position as she would have been in with a ⅓ interest in property subject as it was to the heavy mortgages that were then secured on the property.

[24]Although the court has no power under the Matrimonial Causes Act 1973 to amend this property adjustment order, there is an inherent jurisdiction for the court to vary its own order to make the meaning and intention of the court clear and the slip rule can be used to amend an order to give effect to the intention of the court. The question becomes: what did Coleridge J. intend?

[25]As I have already commented, the pity of this case is that Coleridge J. was not called upon to answer the question himself. The case was originally before him and he could have clarified his order and then given directions to do with the claim to enforce the charge but as he perfectly properly expected to deal with all matters at one and the same time, no criticism can be made of his conduct of the matter. Nor can any criticism be made of the President to whom the case had to be transferred due to Coleridge J. being unavailable. The system can be criticised but not the unfortunate judges who have to struggle to overcome its deficiencies.

[26]The judgment of Sir Mark Potter P. makes it clear what passages in the judgment of Coleridge J were drawn to his attention in order that he could infer the trial judge’s intention. Counsel were not there to assist him. When the application for permission was listed before me alone, Miss Swindale needed to be prompted by Mr Bogle who was there on the instructions of Mr Forder who was not even a party to this application but who has been insistent on taking part in it to advance his own campaign. Thus prompted, Miss Swindale drew attention to page 924 of the report in the Family Law Reports where, in the body of his judgment and in the passage which contains the kernel of his reasoning Coleridge J said this:

“To the extent that I have found the husband and the intervenor were involved in a constructive trust arrangement for their joint benefit, I am also satisfied that it was a term of that trust that money should be expended on the properties for the benefit of the family of the husband and the wife. It was as much part of the common understanding between the husband and the intervenor that the property should be shared in the proportions in which I have find as it was also part of the understanding that the property should provide a home for the husband, the wife and the children. … Accordingly, I propose to provide that (pursuant to ss. 14 and 15(1)(b) and (c) of the Trusts of Land and Appointment of Trustees Act 1996), in so far as the intervenor has an interest in 14 N Place where the wife and children now live, realisation of it should be postponed. Having considered and balanced the interests of the wife and children as against those of the beneficiary and the intervenor, the period of postponement will be ten years or until such time as it is no longer required as a home for the children or until such other time as the court may appoint from time to time depending upon the circumstances, whichever shall first occur. If, for instance, the wife were to remarry or cohabit for a significant length of time, I would not intend that the intervenor should be expected to continue to provide a roof in those circumstances.”

[27]The President did refer to page 930 where, having regard to the first interests of the children the judge had referred to “the need … for a secure home for the children and their main carer, the wife” and to his conclusion in that paragraph that he proposed to provide “a solution which enables the wife and children to stay where they are at least for the foreseeable future”.

[28]So what did Coleridge J intend? I agree with the President that Coleridge J “was not concerned solely with the children”. This order was definitely not structured in such a way that the property was to be a home for the children no matter who cared for them. The judge’s intention was to satisfy the need “for a secure home for the children and their main carer, the wife”. As the President said, “He made clear that he balanced the interests of the wife and children, as he put it, against the needs of the petitioner and the intervenor before making the order that he did.”

The President’s conclusion was that the third condition to be inserted should read:

“… or (3) the house is no longer required as a home for the Petitioner and her children or any of them.” (Emphasis added by me for the reason I shall explain in a moment).

[30]In a case which cries out for certainty, I am a little troubled about that formulation because the “them” in the phrase “or any of them” could refer to any one of five, the petitioner, Henry, Eleanor, Edward or Benjamin. It is still a home for the petitioner and on that construction the intervenor would not be entitled to enforce the charge. That is not what I think the President meant. I am sure he meant to say that the charge should be postponed until the house was no longer required “as a home for the petitioner and at least one of the children”. That would in my judgment accurately reflect what Coleridge J. intended reading his judgment as a whole. Thus enforcement of the charge would be postponed so long as one of the children was living there with the petitioner and the charge would be enforced if the petitioner was living there alone.

[31]Now we have another irony. Cases which once go wrong so often continue to be jinxed. Here Coleridge J’s order was not properly drafted. Nor I am sad to say was the President’s. In quoting his judgment I added the emphasis that the house was to be required as a home for the petitioner “and her children or any of them”. When the President’s order came to be drawn it defined the requirement “as a home for the petitioner or her children or any of them”. The order is clearly wrong. It does not give effect to what the President said nor does it give effect to what Coleridge J. intended. Consequently I would allow this appeal to the extent that the third condition to be added to Coleridge J.’s order read:

“… or (iii) the house is no longer required as a home for the petitioner and at least one of the children.”

I shall have to make a special effort to ensure that the Court of Appeal’s order is properly drawn.

The second question: can Miss Swindale now enforce the charge?

[32]That depends on whether the house is still required as a home for the petitioner and at least one of the children. It is not. The children are all living with their father. In respect of the three younger children there subsists an order for joint residence but the reality is that the house is no longer required as a home for any of the children. Reality must prevail. It is not enough to hope they or one or more of them may return to live with her. Mrs Forder acknowledges that and she accepts she cannot resist the claim for the enforcement of the charge. She is right to be resigned to her fate.

The third question: on what terms should the charge be enforced?

[33]Ordinarily, in a case like this, the court would give directions for the sale of the property but not before a reasonable time had been given to allow the chargor to discharge the debt and buy out the chargee’s interest and directions could be given to ascertain the amount of that debt. It will have been noted that Coleridge J’s orders expressly gave Mrs Forder the right to redeem the charge at an open market valuation to be agreed or in default of agreement to be determined by a nominated valuer. Neither party appears to have insisted upon this question being determined by an appointed surveyor and both acquiesced in having the dispute resolved by the court. In accordance with that sensible approach, directions were given in this case for the dispute about the value of the property to be resolved and as a result valuations were placed before the President. He was right to determine what sum equalled 17% of the gross proceeds of sale of the property, “gross proceeds of sale” having been defined in the order to mean “the open market value of the property with vacant possession between willing seller and purchaser …”.

[34]Miss Swindale protests that she was taken by surprise at the hearing before the President in as much as she had not expected him to resolve this question on the reports alone and that, as a consequence, she had not made arrangements to have her valuer to attend court. I reject that complaint. It is plain from the President’s judgment that when he dealt with the matter on 24th May he gave directions enabling the parties to put in their valuations, saying there was to be no further evidence by the parties. That was done, he said, to avoid further delay and expense. There was no discernible protest from Miss Swindale when she appeared before the President on 25th July. He had no alternative but to take a decision as best he could on that written evidence. He had five valuations before him. He analysed them carefully. He pointed to the strengths and weaknesses of each. He was obviously most impressed by John D. Wood’s valuation but even then did not accept Mr Wyatt’s figure of £800,000 but reduced it to £750,000. All of this was well within the ambit of arriving at a proper judgment and I would dismiss Miss Swindale’s appeal against his reaching that figure.

[35]Having settled the value, the calculation of 17% was a matter of pure mathematics and the next question for the President was what reasonable time should be afforded to Mrs Forder to raise £127,500 in order to redeem the charge. He allowed six months. There is no real complaint from Miss Swindale about that. Mrs Forder was, however, having difficulties raising the money because of the Unilateral Charge requested by Mr Forder on the property and the President rightly dealt with that by robustly ordering its removal. The fact that this appeal has been launched and that Mrs Forder has had difficulties beyond her control because of the actions of Mr Forder justify, in my judgment, a short extension of time to enable her to raise the money. I would now extend her time by a further four weeks. She tells us she has made arrangements to raise the money, can do so, and indeed wants to do so in order to bring this sorry matter to an end. Finality for these parties would be a very good thing indeed.

[36]I hope, therefore, that Mrs Forder will succeed in redeeming the charge and that Miss Swindale will on or before 22nd February 2007 receive the money due to her. If all goes well that will be the end of the matter. If it does not and further steps have to be taken to enforce the charge by ordering a sale, then there are potential difficulties arising from the proviso to the President’s order suggesting that the court would be able to order payment of such smaller sum, if any, as may be just on account of her liability. The court has, of course, the limited discretion to postpone a sale to give the chargor reasonable time to discharge the mortgage debt but once the event entitling foreclosure has occurred, then the court cannot substantially change the terms of the charge “in broad justice”. To give Mrs Forder liberty to apply for further suspension of enforcement if she is able to raise “at least a decent sum of money on account of the postponement of her charge” would not be right. That goes too far and amounts in effect to rewriting the order made by Coleridge J. which the court has no power to do. Any further indulgence to Mrs Forder must be considered according to the law of mortgage and it is premature to give any directions now which will impact upon Miss Swindale’s right to seek the enforcement of her charge by an order for sale if the charge is not redeemed by 22nd February 2007. I would therefore delete the proviso to the President’s order.

Conclusion

[37]In the result I would grant permission to appeal, allow the appeal by amending the order made by Coleridge J. dated 29th November 2002 by the addition of words at the end of sub-paragraph (a)(ii) of the proviso as follows: “or (iii) the house is no longer required as a home for the petitioner and at least one of the children”; by extending the time in paragraph (3) of the President’s order to 22nd February 2007 and by deleting the proviso to his order. Otherwise the appeal shall stand dismissed.

[38]I agree.

[39]The case reveals a chapter of errors and raises a point of law.

THE CHAPTER OF ERRORS

[40]In the central part of his judgment on 29 November 2002, namely at p. 924G of the report at

[2003] 1 FLR 911

, quoted by Ward L.J. at [26] above, Coleridge J. specified four trigger events, upon the occurrence of any one of which Miss Swindale would be entitled to enforce her charge, namely: i) the expiry of ten years; ii) Mrs Forder’s remarriage or cohabitation; iii) the date when the property “is no longer required as a home for the children”; and iv) a further order that Miss Swindale be forthwith entitled to do so. The fourth trigger event can only have been a further order “in the interim”, i.e. made before any of the other three trigger events had occurred: Thompson v. Thompson

[1986] Fam 38

. But nothing turns on the fourth trigger event. Everything turns on the third.

[41]Unfortunately, when Coleridge J. summarised his conclusions, he referred to the third trigger event slightly differently at p. 932D, namely as being the date when “the house is no longer required as a home”. My view is that he was in effect there using shorthand and expecting the reader to refer back to the passage at p. 924G.

[42]In drafting the order of Coleridge J. the three counsel failed to include the third (or, for that matter, the fourth) trigger event. So any arguable ambiguity in the judge’s judgment in relation to it was probably never noticed and certainly never resolved.

[43]At the hearing before the President on 25 July 2006 it was thus clear that the order of Coleridge J. should be amended under the slip rule (O.20, r.11, R.S.C. 1965, which still applies to family proceedings). But what was the slip? Had Coleridge J. provided that the third trigger event should be the date when the home was no longer required as a home for the children (or, presumably, at least one of them)? Or had he provided that it should be the date when it was no longer required as a home even for Mrs Forder?

[44]Unfortunately, in relation to that crucial distinction, there is doubt even about what the President decided. For one part of the approved transcript of his judgment specifically favours the former construction whereas his order specifically favours the latter. As transcribed, the President’s judgment was, at [21], to the effect that the necessary amendment was to insert the words “or [iii] the house is no longer required as a home for [Mrs Forder] and her children or any of them” (italics supplied). But, as perfected, the President’s order was, at [2], that the words to be inserted were “or (iii) the house is no longer required as a home for [Mrs Forder] or her children or any of them” (italics supplied).

[45]I have found greater difficulty than has Ward L.J. in discerning whether it is the terminology of the President’s order or that of the passage in [21] of his judgment quoted above which correctly reflects his decision. On the one hand there are passages in other parts of [21] and in [22] of his judgment, set out by Ward L.J. at [15] above, which have led me to wonder whether the President’s conclusion, as reflected in the order, was indeed that the third trigger event was the date when Mrs Forder no longer required the property as a home irrespective of whether any of the children also so required it. If such was his conclusion, it would be one to which, with profound respect and for the reasons given by Ward L.J., I could not subscribe. It is obvious from the President’s judgment that, while he attached considerable importance to the reference in the summary of Coleridge J’s conclusions to the date when the property “is no longer required as a home”, his attention was never drawn to the earlier passage at p.924G in which Coleridge J. had specified the date when the property “is no longer required as a home for the children”. So, were such to have been his conclusion, the President can in no way be criticised for having reached it. On the other hand, he does seem to have proceeded on the basis that Miss Swindale had become entitled to enforce her charge at least in principle. Her entitlement can surely have been founded only upon conclusions first that, as reflected in the passage in [21] of his judgment quoted above, the third trigger event was that the property was no longer required as a home for Mrs Forder and at least one of the children and second that, since, as things stood, none of the children so required it, the event had occurred. At all events, like my Lord, I am convinced that such are the conclusions properly to be reached.

[46]So Miss Swindale has indeed become entitled to enforce her charge. I agree with my Lord, for the reasons which he has given, that her appeal against the President’s finding that the property had an open market value of £750,000 should be dismissed. Her entitlement is therefore to be paid 17% thereof, namely £127,500. The President correctly ordered that, subject to giving Mrs Forder what was then a reasonable time, namely six months, in which to redeem it by payment of £127,500, Miss Swindale should be at liberty to enforce the charge. But he qualified that order.

THE POINT OF LAW

[47]By the proviso to his order, set out at [21] above, the President in effect gave Mrs Forder permission to apply to the court for relief from enforcement of Miss Swindale’s charge in the event that Mrs Forder should prove unable to raise in full the sum of £127,500 for payment to her. By the proviso, the President indicated that, in that event, the court would, were it just to do so, suspend enforcement of the charge, apparently indefinitely, upon payment to Miss Swindale by Mrs Forder of such lesser sum as she could raise on account of her liability thereunder. Such an indication is reflected in the text of the President’s judgment, in which he spoke both of “retaining the possibility, if [Mrs Forder] is unable to [raise £127,500], for a return to court to assess what sum justly she ought to pay in any event” and of the court’s identifying “what, in default, is the actual amount that she can afford to pay off to [Miss Swindale], who, in my view, deserves to have something at this stage.”

[48]The point of law is whether the court would have jurisdiction to decline to permit Miss Swindale to enforce the charge in the event that, within the reasonable time set, Mrs Forder were not to redeem it by payment in full of £127,500.

[49]We must be cautious in what we say on the point. Both Miss Swindale and Mrs Forder appeared before us in person. The point is not contained in Miss Swindale’s grounds of appeal; and, when we indicated to Mrs Forder that we were concerned about the President’s proviso, she told us that she had no interest in seeking to defend it because, if granted a further four weeks in which to do so, she had every confidence in her ability to raise the full sum of £127,500 for payment to Miss Swindale. I agree with my Lord, however, that the proviso should be set aside. The President’s instinct for practical justice is second to none; but with respect I believe that he would have had no jurisdiction to suspend enforcement of the charge upon payment of any lesser sum than £127,500. When an order provides that, were a trigger event to occur, a charge may be enforced, then, upon its occurrence, I see no room, otherwise than by late appeal unlikely to be permitted, for escape from its full effect. It is worthwhile to remember that the trigger events referable to the charge in favour of Miss Swindale identified by Coleridge J. were not terms of some settlement of property order made in favour of a spouse ancillary to divorce pursuant to s.24(1)(b) of the Matrimonial Causes Act 1973. But, even had they been terms of some such settlement, thus made in the exercise of a wide discretion, there would have been no jurisdiction to vary them: see the decision of this court in Omielan v. Omielan

[1996] 2 FLR 306

. In my view Miss Swindale’s position is all the stronger and certainly as strong. In the passage of his judgment at p. 924G, set out at [26] above, Coleridge J. made clear that his provisions for the charge in her favour, including in particular the trigger events which he identified, were made in the exercise of his jurisdiction under s.14(2) of the Trusts of Land and Appointment of Trustees Act 1996 to “make any such order… declaring the nature or extent of a person’s interest in property subject to [a] trust … as the court thinks fit”. I see no reason for concluding that an order which declares the extent of a person’s interest in trust property by providing among other things that her interest in it be enforceable upon the occurrence of a specified trigger event is in any way variable. Nor would the limited power under s.36 Administration of Justice Act 1970 to relieve a defaulting mortgagor from the obligation to deliver possession of a dwelling-house be likely to be exercised in favour of Mrs Forder because she would already have been given a reasonable period in which to pay what is due to Miss Swindale.