2002/62
ROYAL COURT
(Samedi Division)
15th March 2002
Before: |
F.C.Hamon, Esq., OBE, Commissioner |
Between |
B |
Respondent |
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And |
R |
Appellant |
Advocate M.E. Whittaker for the Respondent.
Advocate D.G. Le Sueur for the Appellant.
judgment
the Commissioner:
1. This is an application by a successful appellant for his costs of and incidental to the appeal. The appeal was from a decision of the Greffier Substitute dated 22nd June 2001, ordering that the appellant husband pay half of the taxed costs of the respondent wife. In the event, we ordered that each side bear its own costs. We left the matter of the appeal costs open in the anticipation that the parties would be able to reach some form of sensible compromise. That was not to be.
2. In Gojkovic v Gojkovic (No. 2) (1992) 1 All ER 267, the Court of Appeal (which comprised Russell and Butter-Sloss SJJ) made a far-reaching judgment which held (reading from part of the headnote):
"Although the award of costs in the Family division prima facie followed the event, as in other divisions of the High Court, that presumption was displaced more easily than in other divisions and might be affected by the behaviour of a party in failing to disclose material documents or assets, the incidence of legal aid and the inadequacy of available assets, especially if children were involved".
3. On 31st October 2001 Advocate Le Sueur wrote a "Without Prejudice save as to costs" letter. Two passages are relevant:-
1. "I have discussed the appeal with my client and I have been instructed to make a formal offer of £3,750 towards your client's costs in return for my client abandoning his appeal".
This replaced an earlier and rejected offer of £5,000. The offer was to stand until close of business on 7th November 2001.
2. "I have told Mr. R that in my view the Court is likely to find that both parties faired better in having the matters argued before Court than they would have done, had they accepted the other's offer. For this reason, I feel confident that the court will find that the appropriate order that should have been made by Advocate Obbard is that both parties should have paid their own costs".
4. There was a reply on 14th December headed again "Without Prejudice save as to costs" where Mrs. R would abandon the appeal for £14,000 in full and final settlement of her claim for costs.
5. We have noted in our judgment that there was a long delay from the decision to the receipt of the Greffier's reasons for his decision.
6. Advocate Whittaker has rehearsed fully the delays that were encountered once the reasons were delivered on 9th October 2001. There appears to have been confusion by the parties as to who should file grounds. It must be noted that Rule 55A(5) is wholly unsatisfactory and requires urgent amendment. Despite the misunderstanding and the ambiguity, the cold fact is that the Greffier's reasons were in Advocate Le Sueur's hands on 9th October 2001 and the grounds (albeit by way of a late concession) were in Advocate Whittaker's hands on 10th January 2002. By any standards a three months' delay is inordinate and in his letter of 9th January Advocate Le Sueur says "I agree with you entirely that the conduct of the appeal has not been satisfactory. I agree with that point, as someone once said "without mitigation or remorse of voice".
7. Despite that fact, Advocate Whittaker was willing and able to present her arguments which did not appear to me to have been in any way prejudiced by the delays. Her argument was entirely professional. The conduct point is not paramount in my judgment.
8. What is paramount are the needs of the wife. The purchase of a property for a total consideration of £440,000 caused consternation from the husband but the wife was 55 and although the children are all adults, she has no pension and at 55, no real anticipation of an early retirement. In this financial climate a Jersey property is probably a better purchase for long term growth than anything else. The wife is financially stretched. I agree that normally the husband should get all his costs. He appealed and he accurately assessed what the decision of the Court would be.
9. I am not impressed by an argument that if my decision goes against the wife an appeal from the decision of 29th January will be made. It is for counsel to advise their client and for their client to take or reject that advice.
10. In the particular circumstances I order that the wife pay one third costs of the appeal on a standard basis.
Authorities.
Gojkovic v Gojkovic (No. 2) (1992) 1 All ER 267