Jersey Unreported Judgments

[2008]JRC041

royal court

(Samedi Division)

13^th March 2008

Advocate C. R. G. Davies for the Plaintiffs.

Advocate S. A. Franckel for the Defendant.

costs judgment

the commissioner:

1.        On 7^th March, 2008 I heard argument in relation to costs following the judgment of the Court in this matter handed down on 18^th February, 2008 (AGH and KGH v H [2008] JRC 022).

2.        In this judgment the Court confirmed certain non molestation injunctions obtained by the plaintiffs in 2005 but for a definitive period ending 1^st September, 2008, at which point they would cease to be of effect.

3.        The injunctions had originally been granted ex parte with the case being adjourned by consent sine die upon reciprocal undertakings to appear with the interim injunctions to remain on until further order.  In August 2007, following finalisation of the divorce, the defendant issued a summons seeking the revocation of the injunctions which was heard on 8^th November, 2007 and 11^th January, 2008.

4.        The plaintiffs seek their costs both in relation to the defendant's summons to revoke the injunctions and in relation to the original ex parte application.  The defendant submits that the proper order is that each side should bear its own costs and that there should be no order in relation to the original ex parte application.  The plaintiffs had also issued a summons seeking a minor variation in the terms of the injunction and the parties agree that I should ignore that for the purpose of costs as its effect was de minimis

5.        Whilst the Court had regard to the nature and seriousness of the conduct which led to the injunctions being imposed in the first place, it is the case that the only issue before the Court was whether or not, having regard to the conduct of the defendant, the interim injunctions should continue.  Accordingly Advocate Franckel submitted that I have no jurisdiction to award costs in relation to the original ex parte application which had been adjourned by consent.  Whilst it is true that this was the only issue before the Court, orders were made disposing of the proceedings as a whole and in my view I do therefore have jurisdiction to order costs in relation to the original ex parte application.

6.        Whilst in matrimonial financial provision proceedings the approach of the Court to costs is more flexible, with costs not necessarily following the event (See R v G [2006] JLR N 20), it is clear that in relation to injunction proceedings costs are awarded in the usual way (See Butterworth Family Law Service paragraph 2089 and Matrimonial Costs, second edition paragraph 1.21.2). In that respect, I have been reminded of the general principles as laid down in Pell Frischman v Bow Valley [2007] JRC 143.

7.        Prior to the hearings, the plaintiffs made a number of open offers to the defendant to the effect that the injunctions should remain on but should be reviewed in a year's time, at which time the plaintiffs may well have had no objection to their removal.  This offer was rejected by the defendant.  The defendant expressed a willingness to consider reciprocal undertakings to the Court not to disturb or harass, in consideration of the injunctions being lifted.  This was not pursued by the plaintiffs. 

8.        At the hearing, the defendant sought the immediate revocation of the interim injunctions.  The plaintiffs sought their confirmation without any time limit. In the event, the Court continued the injunctions until 1^st September, 2008 at which point they and the proceedings will lapse.  Any further injunctions would have to be the subject of a fresh application by the plaintiffs.

9.        It is true, therefore, that the plaintiffs have succeeded in their contention that the injunctions were justified at the time of the hearings but it is also true that the defendant has succeeded in revoking the injunctions, albeit after a period of some six months.

10.      In my view, non molestation orders should only be granted "until further order" or confirmed permanently in exceptional cases (see paragraph 12 of the judgment) and there is merit in Advocate Franckel's suggestion that such orders should be reviewed as part of the process by which the matrimonial proceedings are finalised, with a view to their either being lifted or fixed for a further definitive period in order to give the parties a breathing space, rather than being left for years to go by.  This is particularly so in a small island where parties are more likely to come into contact with each other in the ordinary course of their daily lives only to find that such contact, in quite changed circumstances, might unwittingly constitute a breach of long forgotten orders of this Court.

11.      Advocate Davies argued that the hearing was about the need for protection for the plaintiffs and the conduct of the defendant.  They had succeeded in discharging the burden of proof upon them as plaintiffs that they continued to need protection and therefore costs should follow the event.

12.      Advocate Franckel asked me to consider the position of the defendant prior to the issue of the summons and her position now.  Under the offer made by the plaintiffs, they remained in control; the onus being on the defendant to seek the removal of the injunctions in the future.  Now there was a clear end in sight which required no further action on the defendant's part.  The plaintiffs are no longer in control.   

13.      It is clear that the Court did not regard this case as one of those exceptional cases requiring permanent orders as sought by the plaintiffs.  The application was, however, premature in that the Court decided that the plaintiffs still required protection in the short term.  In effect, the Court ordered a further breathing space before finally disposing of the injunctions.

14.      I agree with Advocate Franckel that neither party has been successful and that the just and fair order is that there should be no order for costs in relation to the defendant's summons.

15.      In relation to the original ex parte application, these were adjourned sine die by consent in 2005 and it is clear that, bar the defendant's summons, the plaintiffs had no intention of applying for costs.  Although the second plaintiff was not a party to the consent order finalising the divorce, it had been agreed between the first plaintiff and the defendant that there would be no order for costs, which agreement by implication extended to these injunction proceedings, certainly in so far as they were concerned. I decline therefore to make any order for costs in relation to the original ex parte application.

Authorities

AGH and KGH v H [2008] JRC 022.

R v G [2006] JLR N 20.

Butterworth Family Law Service.

Pell Frischman v Bow Valley [2007] JRC 143.