Court of Appeal
Published April 6, 2009
Myerson v Myerson (No 2)
Before Lord Justice Thorpe, Lady Justice Smith and Lord Justice Sullivan
Judgment April 1, 2009

A husband could not have an order compromising an ancillary relief application rewritten where his wealth had fallen significantly.

The Court of Appeal so held when dismissing the appeal by the applicant husband, Brian Myerson, against an order dated March 19, 2008, giving effect to a compromise conducted by Mrs Justice Baron at a financial dispute resolution appointment.

The husband was a fund manager and at the time of the financial dispute resolution had assets valued at £25.8 million of which it was agreed that the wife, Ingrid Myerson, would receive £11 million: a 43 per cent share.

His assets consisted of a substantial share-holding and various properties. At the date of the compromise the shares stood at £2.99. At the date of the hearing, and at a time of global financial crisis, they had sunk to 27.5p per share.

It was submitted that that left the husband’s share of the assets at minus 5.2 per cent and the wife’s share at 105.2 per cent. The husband appealed against the order asserting that forces within the global economy and the collapse in the company’s share price rendered the order both unfair and unworkable.

The husband issued applications seeking the variation of the orders for the payment to his wife of a lump sum by instalments and relating to the transfer of a property.

In Myerson v Myerson (The Times January 7, 2009) it was held that Mrs Justice Baron lacked jurisdiction to hear those applications and they were listed before Mr Justice Bennett. The husband submitted that, in the circumstances, Mr Justice Bennett’s jurisdiction should be extended to enable him fundamentally to rewrite the order.

Mr Martin Pointer, QC, Mr Justin Warshaw and Mr James Ewins for the husband; Mr Nicholas Mostyn, QC and Mr Simon Webster for the wife.

LORD JUSTICE THORPE said that the only other decided case in which there had been a dramatic change in the price of quoted shares was Cornick v Cornick (No 2) ([1994] 2 FLR 530). Mrs Justice Hale’s reasoning in that case clearly pointed to the dismissal of the husband’s appeal in this case.

Further additional grounds for refusing him relief were: (i) The order was not imposed but was the product of the will of the parties. The husband, with all knowledge both public and private, agreed to an asset division which left him captain of the ship certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead. (ii) When a businessman took a speculative position in compromising his wife’s claims, there was no good reason as to why the court should subsequently relieve him of the consequences of his speculation by rewriting the bargain at his behest. (iii) The husband continued to enjoy control of the opportunities that went with the order. (iv) The payment of the lump sum was spread over five instalments and so there existed the statutory power of variation; if the circumstances justified the reopening of the consent order, then there was jurisdiction to rewrite that part of the consent order.

Lady Justice Smith and Lord Justice Sullivan agreed.

Solicitors: Mills & Reeve LLP, Leeds; Sears Tooth.

Times Recommends

• The best legal yarns this Christmas
• Legal school 'earned £1m by exploiting bar course'
• Axe may fall on 5,000 more City lawyers