'A sensible result'
Sir Stephen could see no justification for the interpretation urged upon him by Mrs B. e looked for what the parties must be thought to have intended:
' The construction that I favour produces a sensible result which the parties can readily be taken to have intended. It avoids the potential for a windfall benefit which arises on the wife's construction. I can see no sensible reason why the parties should have intended the wife's net entitlement under the Order to be potentially so much greater if the sale of the property and distribution of the proceeds of sale take place after rather than before litigation monies are are received by the husband. I do not accept Mr Marks's submission that the Order was structured in that way so as to incentivise the husband in relation to the sale of the property. There is no evidence before the court to show, by reference to the surrounding circumstances, that this may have been a purpose of the parties.'
In Oakes v Johansson  EWHC 2616 (Fam)
, Mostyn J considered an application by a father (in proceedings under Sch 1, Children Act 1989) where the parents' consent order had not disposed of how arrears due under an interim order should be dealt with. Her 'position as drafted by her leading counsel' was that she 'included a claim for discharge of the arrears'; but the consent order was silent. The mother - acting in person - had sought to enforce in the father's home court in Sweden. Mostyn J does not assess the case in Sirius
, or comparable principles. Without defining any 'normal' contract law or construction tenets, he held:
' It is true that the order does not on its face explicitly deal with the discharge of the earlier interim order, or deal with the question of any alleged arrears arising under it. However, the normal tenets of contractual interpretation, leave to me conclude without any doubt that it was the intention of the parties that the arrangement made in this final order would be in substitution for and supersession of the interim order, including any arrears that may have arisen under it ...
 I have no hesitation in concluding that the terms of the agreement reached between the parties was intended to encompass all arrears under the interim order ...'
the particular issue which arose in Oakes
might attract an approach from the court based on Sirius
and what the court thinks was the parties' joint intention.
Mediation, settlement terms and consent orders
So where does this leave mediators and lawyers whose job it may be to record an agreement and - where need be - to incorporate it into a consent order? The rules and law are the same whether it is an agreement (eg between unmarried parties where there is limited or no scope for a court order, because no proceedings have been issued), a Tomlin
-related to construction of the terms of a Tomlin
order), and a formal consent order. The court will look behind 'literalism' at what the parties intended.
Simplicity of drafting must be a prerequisite: the draftsperson must try to read the order as would a moderately intelligent lay-person, which will involve avoiding - or defining carefully - over-elaborate or specialised legal terms.
All terms agreed by the parties must be covered in the order (which would avoid problems like those of Ms Oakes), as as an understanding or order in Matrimonial Causes Act 1973 consent orders.
If there are assumptions on which the agreement/order is based - such as that which Mrs Besharova sought, unsuccessfully, to set up - must be recited in the order. Any document referred to must be recited in the agreement/order; or, better still, be attached to the order. This would include (but rarely does in most consent orders) a summary of the parties' assets and of the assumptions of other Matrimonial Causes Act 1973 (or similar) factors on which the order was made.
Each of these terms apply equally to any mediator who drafts consent order or agreement terms, and to any lawyer who settles financial terms on relationship breakdown. And it provides a yardstick for review of an agreement/order on which a lawyer may be asked to advise later.