AKS Petitioner v JS Respondent RS & HS Proposed Interveners
| Jurisdiction | Cayman Islands |
| Judge | Hon. Justice Williams |
| Judgment Date | 22 March 2016 |
| Judgment citation (vLex) | [2016] CIGC J0322-2 |
| Docket Number | CAUSE NO. FAM 201 OF 2014 |
| Court | Grand Court (Cayman Islands) |
| Date | 22 March 2016 |
and
Hon. Justice Williams
Family Law — divorce — financial provision — costs in relation to application of a third party to intervene in ancillary relief proceedings — test when considering application for indemnity costs
On 3 February 2016 RS and HS's (‘the Intervenors’) Summons dated 25 September 2015 came on for hearing. In the Summons they sought an order permitting them to intervene in the ancillary relief proceedings involving their son JS and his wife AKS. The application was supported by JS and opposed by AKS.
The background of the case is set out at paragraphs 2 to 6 of my perfected Judgment circulated on 11 February 2016. I do not intend to repeat that same detail herein.
At the first mention hearing on 1 May 2015 I gave comprehensive directions with the goal of fixing the ancillary hearing on the first open day after 20 July 2015. My notes from that day reflect that issues were raised about the effect of the purported investments made by each party's parents in the former matrimonial home. My notes record my indication that:
‘Consideration should be given to inviting the parents to be joined as intervenors if it is argued by them that they have a separate discrete interest in the former matrimonial home.’
If neither party's parent(s) wished to intervene my direction provided for the filing of witness statements by 22 May 2015 as their evidence would most likely be relevant.
In compliance with my directions, on 22 May 2015 AKS served her Affidavit of Means in which she detailed her position about the Intervenors' financial contribution to the matrimonial home. On 16 June 2015 the Intervenors instructed their current attorneys, Ritch & Connolly. On 18 June 2015 JS's then attorneys, Travers Thorp Alberga, notified the Court and the other parties by email that RS and HS had engaged Ritch & Connolly to represent them as intervenors in the matter.
All of the parties were notified by the Court that the mention hearing on 16 July would have to vacated and be relisted. The attorney for JS and the attorney for the Intervenors provided the Court with their dates to avoid on 25 June 2015. The Court sent out several emails to try to obtain AKS's dates to avoid and eventually on 18 August 2015, almost 2 months later than the other parties, AKS's attorney provided dates to avoid.1
On 7 July 2015 the Intervenors' attorney wrote to the attorney for AKS to inform them that they had been instructed to intervene in the divorce proceedings. In the letter he indicated that it was necessary for their clients:
‘to be a party to the proceedings in order to have their claim to an interest in the matrimonial home determined prior to any decision
regarding the treatment of the matrimonial home in the divorce proceedings.’
He enclosed a draft, coupled with a request for AKS to consent to the application. On 16 July 2015 AKS's attorney replied saying that any variation/amendment to the Court's direction order would have‘to be achieved’ by the Courts. The Intervenors' attorney replied on the same day indicating that before his clients could apply for directions they needed to become parties and he again invited consent to the application. He indicated that the intervenors would ask the Court to make the order at the upcoming mention hearing if agreement could be reached but, if opposed, they would be:
‘compelled to prepare a much more comprehensive application and seek a longer hearing at which a contested application can be dealt with.’
Despite the content of the email exchanges on 16 July 2015, on 17 July 2015 AKS's attorney wrote to the Court indicating that she did not understand on what basis Counsel for the proposed intervenors was requesting dates for a mention hearing. On 17 July 2015 AKS's attorney sent the Intervenors' attorney an email in which she said that their clients:
‘had been previously provided with an opportunity to be joined as parties’ and had ‘neglected and/or refused to do so’ and that ‘as the pleadings have been closed’ it was ‘a matter for the Court.’
On 17 July 2015 the Interveners' attorney again wrote to AKS' attorney and he acknowledged that it was a matter for the Court as to whether his clients could be joined, but reiterated his request for an indication whether the application was going to be opposed. He understandably indicated that he sought this clarification as it would affect the time estimate for the hearing, as well as the detail required in the affidavit in support of the application.
On 10 August 2015 JS's attorney provided his written consent to the application being made by the Intervenors.
On 3 September 2015 the Intervenors' attorney again wrote to AKS's attorney. He drew attention to the above-mentioned email exchange and he specifically mentioned the email of 17 July 2015. He indicated that no response had been received to that email and requested an immediate reply. He went on to indicate that, if a reply was not received within seven days, the Summons and supporting affidavit would be prepared on the basis that the application was opposed and that a one-hour hearing would be requested. Importantly he indicated that:
‘We shall draw the attention of the court to this letter as appropriate in relation to costs.’ 2
On 14 September 2015 an email was sent by the Intervenors' attorney indicating that the letter of 3 September 2015 had not been replied to and that, if no reply
was received by close of business, the application would be prepared and filed later in the week.Despite the content of the communications from the Intervenors' attorney and her responses to the same, the attorney for AKS stated in an email sent on 15 September 2015 that she was ‘very surprised’ that the application was ‘only now’ being prepared. She reiterated the agreed and uncontroversial view that it was a matter for the Court whether RS and HS would be permitted to intervene and went on to contend that an explanation would have been given as to why they had not chosen to be joined when ‘they were provided with that opportunity’ by the Court. She also stated in the email that she would only advise AKS about whether a response to the application was necessary or not after the Intervenors had provided the above explanation to the Court. I should make clear that the only indication I gave was at the 1 May 2015 mention hearing, at which the Intervenors were not in attendance, when I requested both parties to consider whether or not to invite their respective parents to apply to join as each party had stated that these third parties may have an interest in the matrimonial home due to their financial investment into the property.
Having regard to the content of the reeeived 15 September 2015 communication, the attorney for the Intervenors indicated that a detailed application would now have to be made, with a two-hour time estimate. He indicated that, as the previousrequests for dates to avoid had not been provided, unless they were received by the close of business on that day, he would be filing the Intervenors' application without those dates. In the letter he stated that:
‘We will draw our exchange of correspondence to the Court at the appropriate time and seek an order for indemnity or wasted costs3.’
On 27 September 2015 the Summons was filed with a Listing Form. In the Listing Form, under the heading ‘legal issues to be argued’ reference was made to Grand Court Rules (‘GCR’) O. 15, r.6(2)(b)(i) and to whether the Court should‘…exercise its discretion to allow the Applicants to intervene.’4 Due to difficulties arising out of the parties' dates to avoid the matter could not be listed for a convenient date prior to 3 February 2016.
On 23 December 2015 the Intervenors' attorney wrote to AKS' attorney to provide service of their Summons, an affidavit in support from each Intervenor and a skeleton argument. In the letter the attorney stated:
‘We urge your client to reconsider her position and confirm that she does not intend to contest our clients' application so that unnecessary costs of preparing hearing bundles and attending the hearing on 3 February 2016 are not incurred. If your client will now confirm that she does not object to our clients' application, we
propose preparing a consent order and inviting the court to deal with the occasion administratively.’
Regrettably the application remained contested and a substantive hearing on the issue was required on 3 February 2016.
I found that jurisdiction of the Court to order a third party to intervene in ancillary relief proceedings could not be grounded upon GCR O. 15, r.6(2). I went on to find that the Court exercising its inherent jurisdiction can permit a third party to intervene in such proceedings and I made an order permitting RS and HS to intervene.
At paragraph 31 of the Judgment I stated that if there was an issue as to costs related to the application that the parties were provided the opportunity to either provide written submissions or consult with the Listing Officer to fix a cost hearing. On 8 March 2016 Written Submissions on Costs prepared on behalf of AKS were filed. On 9 March 2016 Written Submissions on Costs prepared on behalf of RS and HS were filed. No submissions on the issue of costs have been received from JS. No party has applied to Listing to fix a costs hearing. I have, therefore, only considered the above-mentioned Written Submissions on the issue of costs.
GCR Order 62,r.4(2) provides that:
‘The overriding...
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