Jersey Unreported Judgments

Costs - application by the Respondent and Third Party for costs from the Petitioner.

[2018]JRC050A

Royal Court

(Family)

5 March 2018

Advocate L. Sette for the Petitioner.

Advocate L. J. Glynn for the Respondent.

Advocate O. A. Blakeley for the Third Party.

judgment ON COSTS

the COMMISSIONER:

1.        On 21^st February, 2018, the Court handed down its judgment in relation to this matter (A-v-B (Matrimonial) [2018] JRC 042, and heard argument as to costs.

2.        Advocate Blakeley, for the third party, and Advocate Glynn, for the respondent, for their respective clients sought costs from the petitioner on the indemnity basis.  Advocate Sette, for the petitioner, argued that there should be no order as to costs.

3.        Whilst the petitioner and the respondent are engaged in proceedings for ancillary relief within the Family Division, this was a claim for damages brought by the petitioner against the third party in contract, proprietary and/or equitable estoppel and unjust enrichment.  It was, as between the petitioner and the third party, a straightforward civil claim.

4.        The Court dismissed all of the petitioner's claims against the third party, describing them as hopeless.  Applying the well-known principles set out in Watkins v Egglishaw [2002] JLR 1, it is beyond argument that the third party was the winner, and should have her costs.  Applying the principles for ordering costs on the indemnity basis as summarised in the recent case of Crociani v Crociani [2018] JRC 013, we agree with Advocate Blakeley that the third party should have her costs on the indemnity basis.

5.        The petitioner's conduct in bringing the proceedings against the third party was unreasonable, in that even as pleaded and according to her evidence, the requirements for a contract under Jersey law were not met, as conceded by Advocate Goulborn at the hearing, the claims in proprietary and/or promissory estoppel were not pursued and it was manifest that the third party had not been unjustly enriched.  On the contrary, she had been materially impoverished by these family arrangements.

6.        Are there circumstances here which would militate against an order being made in favour of the third party? These were proceedings in the Family Division, and it is well established that the Court is not in the practice of making costs orders in children's cases (see I v J [2014] JRC 111) and in ancillary proceedings, the Court exercised a more flexible discretion, because the incidence of costs has a marked impact upon the availability of sufficient funds for the needs of the family and may substantially diminish the cake which has to be cut (see R v G [2006] JRC 112).

7.        The third party claim did not involve the children of the marriage, and whilst a costs order against the petitioner would diminish the funds available to her, and thus to the family, it is not an order made as between spouses.  There is no cake to be cut as between the petitioner and the third party; indeed, her claim against the third party could have been brought quite separately by way of order of justice in the Samedi Division.

8.        In our view, if in family proceedings one party decides to draw in a third party and make civil claims against him or her, then the ordinary principles as to costs in civil litigation should apply, with all the disciplines that brings with it.

9.        A further factor which was of concern to us was the financial position of the petitioner. We were told that she is employed as a G earning £40,000 per annum, and she receives £12,000 per annum from the respondent, a total of £52,000 per annum.  We were also told that she had debts of £15,000, and were shown Royal Court and Petty Debt Court judgments in that amount, the bulk comprising arrears of rental.  However, the petitioner had not seen fit to file an affidavit of means.

10.      A court can decline to order costs where it would be futile because the defendant is impecunious (see the decision of the Court of Appeal in Flynn v Reid [2012] (2) JLR 226 at paragraph 40), but the financial position of the petitioner may well change; indeed, in some seven years or so, the children will probably all be financially independent of her.

11.      Furthermore, we bore in mind that the third party had been left with a debt on her home of some £60,000 (half attributable to the petitioner), which she will not be in a position to pay off until she is 85.  It did not seem just that, burdened with this debt, she should be deprived of an order for costs which would otherwise be made in her favour.

12.      In Flynn v Reid, the Court of Appeal referred at paragraph 43 to the power of the Court to attach to an award of costs a proviso that it is not to be enforced without leave of the Court (in England referred to as a "football pools order") which recognises the possibility that the indigent litigant may by some future stroke of good fortune acquire sufficient means to discharge the costs obligation.

13.      There was no application by the petitioner for such a proviso to be attached to a costs order, and in any event, any such application would have to have been accompanied by an affidavit of means.

14.      The third party is well aware that enforcement of a costs order by her could impact on her own grandchildren, and we think it is reasonable for the moment to leave the issue of enforcement to her.  We are therefore going to award the third party her costs of and incidental to the third party claim against the petitioner (including the costs hearing) on the indemnity basis, but we give leave to the petitioner to apply for a so-called football pools or other similar order if the circumstances merit it.

15.      Turning to the respondent, Advocate Glynn argued that the third party claim was made against him, as well as against the third party, and indeed, the relief sought was so worded.  However, at the hearing, Advocate Goulborn confirmed that relief was only sought against the third party, and indeed, it was obvious that this must be so.  The claim related to the family home, which was owned by the third party alone.  Arguably, the respondent would have benefited financially if the petitioner's claim against the third party had succeeded.  In reality, the respondent could have rested on the wisdom of the Court, leaving it to his mother to defend the third party claim.

16.      Quite separately from that, the respondent is the petitioner's spouse, and as between them, the existing indebtedness of the petitioner is, we think, a relevant factor which militates against an award for costs.  We are not, therefore, going to make any order for costs in favour of the respondent.

Authorities

A-v-B (Matrimonial) [2018] JRC 042. 

Watkins v Egglishaw [2002] JLR 1. 

Crociani v Crociani [2018] JRC 013. 

I v J [2014] JRC 111. 

R v G [2006] JRC 112. 

Flynn v Reid [2012] (2) JLR 226.