B Petitioner v B Respondent
| Jurisdiction | Cayman Islands |
| Judge | Hon. Justice Williams |
| Judgment Date | 18 September 2012 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. FAM 180 of 2011 |
| Date | 18 September 2012 |
Hon. Justice Williams
Husband and Wife — Divorce, financial provision and ancillary children proceedings— Maintenance Pending Suit — Application by wife for costs allowance to fund her legal costs Review of case law in relation to costs allowance orders — Application of Currey v. Currey [2007] 1 FLR 946 —Obiter: Effect of Schedule 1 Children Law on applications for cost allowance orders.
I have before me a Summons filed by the Petitioner Mrs. B (‘the wife’) dated 19th June 2012. In the Summons the wife sought an order that the Respondent Mr. B (‘the husband’) ‘shall pay to the Petitioner's attorney within 14 days of this order a payment in respect of her outstanding legal fees in the total sum of CI$70,000 and a further payment in respect of the future legal costs up to the final hearing in the total sum of CI$50,000.’
Upon the Court emphasising that any costs allowance order must be viewed as being an element of an order for maintenance pending suit made to fund a party's legal costs of matrimonial proceedings, the wife refined the terms of the application. The order now sought, over and above maintenance pending suit already ordered, is for there to be an additional amount to reflect a legal costs element at the rate of CI$40,000 to be paid bi-monthly, with the first payment being 60 days after the date of the order. The wife seeks three such payments which would total CI$120,000. The wife's unpaid fees as of 31st July 2012 were CI$98,960. The husband's unpaid fees as of 6th July 2012 were CI$71,585 but the Court was informed that the level reached at the time of the hearing was similar to that of the wife's. The Court has not received a proper breakdown of either parties' fees to date.
The wife's application is opposed by the husband who is represented by Mr. Shaun McCann.
On 16th December 2011 I delivered an ex tempore ruling dealing with, amongst a number of other issues, an application by the wife for a sum from the husband towards her legal costs. I ordered that a sum of CI$37,500 be paid by the husband. As this is intended to be a comprehensive Judgment, reference will be made to parts of the earlier Judgment.
The wife, an American national, married the husband, a Caymanian national, on 22nd December 2008. There are two children of the marriage, a son aged five years and a daughter aged three years. The children, who have dual nationality, currently reside in the former matrimonial home with the mother in the Cayman Islands and enjoy regular access with their father.
The wife filed her petition for divorce on 11th August 2011, less than three years after the date of the marriage. It is a short marriage. Regrettably, the proceedings thereafter have not progressed in a commendable manner. In my ex tempore rulings delivered in November and December 2011 I commented that both parties should be encouraged to minimise the need to continually seek the involvement of the Courts in determining any matrimonial issues that may arise. In these proceedings there have been an unusually high number of court appearances, with the parties appearing to be unable to agree very little concerning the reasons for the breakdown of their marriage, as well as the way forward concerning finances and what is in the best interests of their children. It is turning out to be one of those dispiriting cases where, instead of spending substantial and disproportionate sums on litigation, had the parties been able to resolve their differences at a more modest and sensible level of costs, they would have potentially been able to put themselves in a position to ensure, if not for themselves then at the very least the financial security of their young children. Mr. David McGrath, who appears on behalf of the wife, when dealing with the manner in which the parties are litigating and the resultant high level of fees succinctly states at paragraph 16 of his written submissions that ‘they make these choices at their own financial peril and at the peril of their children's financial future.’
The parties may, as these proceedings plough on, find it appropriate to have regard to the concerns expressed by Munby J (as he then was) inKSO v. MJO and JMO [2009] 1 FLR 1036 at paragraph 77 page 1053. He was clearly exasperated by the level of expenses being incurred in a number of ancillary relief proceedings and he referred to helpful earlier judicial observations as follows:
‘In A v. A (No 2) (Ancillary Relief: Costs) [2007] EWHC 1810 (Fam) [2008] 1 FLR 1428 at para [269] I observed that in that case some 41.5% of matrimonial assets of £2,669,715 had gone in costs. I continued at para [270]:
“It may be that the ‘mega’ rich can afford to squander grotesque sums in costs. The allusion is, of course, to Moore v. Moore [2007] EWCA Civ.361 [2007] 2 FLR 339 at para [6]. Lesser mortals cannot. Costs in too many so-called ‘big money’ cases — in modern conditions many such cases do not in truth involve ‘big’ money at all - are, as here, grossly disproportionate to either the amounts or the issues at stake, I have had occasion before to deplore the expenditure - one is tempted to say the waste — of money in such cases: see, for example , Re G (Maintenance Pending Suit) [2006] EWHC 1834 (Fam) [2007] I FLR 1674 at para [46]. Other Judges have also expressed their concerns. A very recent example is provided byWood v. Rost [2007] EWHC 1511 (Fam) [2007] All ER (D) 198 (Jun) where, speaking of a case which had been conducted at ‘vast expense’, the Deputy Judge lamented that the late Mr Charles Dickens was no longer alive to write a 21st century sequel to Bleak House. The simile, if I may say so, is all too apt. The accusatory finger which in the 19th century was appropriately pointed at the High Court Chancery is, in the modern world, more appropriately pointed at the Family Division.’
Having referred to the above, I note that it appears that the escalation in the level of costs in the matter before me is being driven by the parties and not by those who represent them.
Since the filing of the Petition in August 2011 the Court has already been inundated with approximately thirteen different Summonses. The Court has had to consider almost the full ambit of ancillary relief applications including two applications made under the Domestic Violence Law 2010 — applications for maintenance pending suit for the spouse and child — three applications for cost allowances — applications for the payment of school fees, medical costs and matrimonial home expenses — applications to vary maintenance pending suit — applications to define access — applications for custody, care and control resulting from the children's removal from the wife's care by the Department of Child and Family Services pursuant to place of safety orders — application for temporary removal of the children out of the jurisdiction — pending application to permanently remove the children from the jurisdiction and pending application for financial ancillary relief with issues as to disclosure. For the purpose of this Judgment I need not rehearse the nature of these various applications in any great detail.
The Court is still not in a position to list the final ancillary relief, as there are still some outstanding issues as to disclosure requiring attention, as well as a need tofirst conclude the pending child related applications. Five days of court time has been allocated in December to hear the wife's application to permanently remove the children from the jurisdiction and, if necessary, any resultant children orders. The Court has been informed that leading counsel from London has been retained to represent the husband at the December hearing.
The current application for a costs allowance order is the third one to be considered during the course of these proceedings. On 18 August 2011 Quin J ordered that the husband do pay CI$10,000‘by way of interim maintenance for legal fees’ and that the wife's attorneys were to provide the husband's attorneys with a preliminary estimate account and breakdown of legal fees. A similar application came before me on 16th December 2011. On that date, after considering the more limited case law then before me, I was satisfied that the Court had the jurisdiction to make such an order, that the wife had established that she had met the required criteria in making such an order, that there were liquid funds available to the husband to make a payment for a costs allowance and that, having regard to both the parties' circumstances, it was just to add a cost component to the existing maintenance pending suit order. I made an order for the payment of CI$37,500 which amounted to 75% of the total sum applied for by the wife, airing a concern about the limited breakdown of the level of the wife's costs provided to the Court. I indicated that both parties should feel able to pay that amount towards the liability to their respective attorneys. I understand that both attorneys have since each been paid the sum of Cl$37,500. The Court has been made aware that the husband has not paid his attorneys any amount over and above that amount to date, so this is not a situation where a husband has been discharging his fees liability from his assets whilst the wife has been unable to do so.
On 16th December 2011 the wife sought, pursuant to Section 20 (c) of the Matrimonial Causes Law, an order requiring the husband to pay $50,000 towards meeting her legal fees. In the skeleton argument filed by Ms. Dowse on behalf of the wife she stated that the payment was to ‘enable her to have representation for her forthcoming applications to remove the children permanently from the Cayman Islands and for final ancillary relief.’ The...
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