B1/01/1387
Neutral Citation Number: [2002] EWCA Civ 475
IN THE SUPREME COURT OF JUDICATURE                            
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Wilson)
                                     Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Wednesday, 20th March 2002
B e f o r e :

LORD JUSTICE THORPE

LORD JUSTICE TUCKEY

SIR ANTHONY EVANS

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RODNEY CHARLES WELLS
Appellant

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JANE FIONA WELLS

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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
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MR. J. POSNANSKY Q.C. (instructed by Messrs Sears Tooth, London, W1) appeared on behalf of the Appellant.

MISS F. BARON Q.C. and MISS D. BANGAY (instructed by Messrs Gordon Bancks, Pershore, Worcs) appeared on behalf of the Respondent.
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J U D G M E N T
1.	LORD JUSTICE THORPE: For the reasons handed down in our judgments this appeal is allowed. I will make changes to paragraph 2 of the draft before it becomes the official version. We have made provision for a possible future application which prevents the court from bringing in finality today. We have heard detailed submissions as to how this limited future right should operate. To clarify and extend our judgment, we make it plain that the mechanism is only there as a reflection of our inability to bring about a proper sharing of both the readily disposable assets and also the assets that are currently more or less unsaleable, namely the shareholding in Soundtracs. We make it plain that had we had the opportunity of ordering a division of the shareholding, we would have brought the wife's shareholding up to something in the order of 10 per cent of the company. Our inability to do that is explained in paragraph 25 of the judgment, and it is only that fetter that persuaded us to introduce the mechanism in paragraph 29. The likelihood of the shares achieving ready marketability within the remainder of the husband's working life is exceptionally remote on present evidence. So the mechanism is not one that, in our view, is likely to give rise to future litigation. If it should transpire, we expect that the judge in the Family Division would be assisted by our clarification of what we would have done had we had power today.
2.	I would only add two things. First of all, this surviving right of application is not to be taken as some sort of inhibition on the husband's liberty to make sensible planning for the future by transferring some proportion of his shareholding to the children of the marriage. I would also urge the parties to have regard to the opportunity that still presents itself for them to come to some better solution by negotiated or mediated means. We are conscious of the fact that the parties, who will not be inhibited as we are may well do better.
3.	Lastly, we decide the question of costs. Although the argument addressed by Mr. Posnansky is attractive, we have come to the conclusion that, in all the circumstances, the fair order is to leave the wife with her costs of the trial but to order her to pay the costs of the appeal.