A 'not particularly well drafted' consent order
The recent case of Besharova v Berezovsky  EWCA Civ 161 has things to say: firstly, to any mediator or lawyer who seeks to settle financial issues between formerly married or cohabiting couples (although Besharova specifically applies only to married couples); second, to any lawyer (or mediators) who may be called upon to draft an agreement, Tomlin order or consent orders; and thirdly, to any lawyer called upon to construe agreements or orders when they are found to be unclear.
Boris Berezovsky attracted a variety of litigation, especially in his declining years. Not long before his death in March 2013, he settled divorce proceedings in the Family Division on terms set out in a consent order - 'not very well drafted', said Sir Stephen Richards - that his wife was to receive (1) the net proceedings of sale (after repayment to him or his estate of £16m) of a property, and (2) sums of money from specified litigation. The property remains unsold and no sale is in sight. A third provision was in issue: did the order provide a cap on what Mrs B was to receive at £200m, or did the cap only apply if she was paid out from the property before other payments were made as an incentive to encourage the sale of the property?
The parties and the Court of Appeal agreed (see para ) that construction of the consent order was to be on the basis of Sirius International Insurance Co v FAI General Insurance Ltd & Ors  UKHL 54,  1 WLR 3251. In that case, the House of Lords was asked to assert on what basis a Tomlin order should be construed. The court accepted that, for these purposes, a matrimonial finance consent order and a Tomlin order were equivalent.
The passage cited by Sir Stephen (who gave the only judgment) is of Lord Steyn in Sirius:
' The settlement contained in the Tomlin order must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties, but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective: the question is what a reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene.'
Commercial common sense: the flight from 'literalism'
So, says Lord Steyn, in this context lawyers must avoid 'literalism' and prefer an approach based on common sense and what the parties can be regarded as having intended:
' There has been a shift from literal methods of interpretation towards a more commercial approach. In Antaios Compania Naviera SA v Salen Rederierna AB  AC 191, Lord Diplock, in an opinion concurred in by his fellow Law Lord, observed (at 201):
"if detailed semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense."'
'Literalism' should be avoided:
' ... The tendency should therefore generally speaking be against literalism. What is literalism? It will depend on the context. But an example is given in The Works of William Paley (1838 ed), Vol III, 60. The moral philosophy of Paley influenced thinking on contract in the 19th century. The example is as follows: the tyrant Temures promised the garrison of Sebastia that not blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them all alive. This is literalism. If possible it should be resisted in the interpretative process ...'
Article continues below...