Dlf v Dkf

• Jurisdiction: Cayman Islands
• Judge: (Quin, J.)
• Judgment Date: 18 October 2011
• Court: Grand Court (Cayman Islands)
• Date: 18 October 2011

Grand Court, Family Division

(Quin, J.)

DLF

and

DKF

Ms. S. Brooks for the petitioner;

P. Boni and Ms. K. Palfrey for the respondent.

Cases cited:

(1) G v. G, 2010 (1) CILR 365, applied.

(2) GW v. RW, [2003] 2 F.C.R. 289; [2003] EWHC 611 (Fam), considered.

(3) Gojkovic v. Gojkovic (No. 2), [1992] Fam. 40; [1991] 3 W.L.R. 621; [1992] 1 All E.R. 267; [1991] F.C.R. 913, applied.

(4) Norris v. Norris, [2003] 1 W.L.R. 2960; [2003] All E.R. (D.) 472; [2003] 3 F.C.R. 136; [2003] 4 Costs L.R. 591; [2003] EWCA Civ 1084, considered.

Legislation construed:

Grand Court Rules 1995, O.62, r.4(2):

‘The overriding objective of this Order is that a successful party to any proceeding should recover from the opposing party the reasonable costs incurred by him in conducting that proceeding in an economical, expeditious and proper manner unless otherwise ordered by the Court.’

Family Law-financial provision-costs-costs normally follow event but court has wide discretion and may choose to award no costs-award normally only appropriate when substantial assets in issue-new starting point of no costs orders in family financial litigation may be preferable-matter should be referred to Law Reform Commission

The respondent sought orders pursuant to ss. 19 and 21 of the Matrimonial Causes Law (2005 Revision) for ancillary relief in divorce proceedings.

The Grand Court (Quin, J.) made orders concerning matrimonial property and providing maintenance for the children of the marriage. Each party succeeded in relation to different ancillary issues-the petitioner succeeded in her argument that all the property was matrimonial property, whereas the respondent succeeded in his argument that the parties should bear the educational costs of the children of the marriage equally. No order as to costs was made. The court stated that it would consider oral or written submissions on the costs of the hearing and both parties filed written submissions.

The petitioner submitted that the general principle that costs follow the event should apply, and that she should be awarded her costs because she adhered to the overriding objective pursuant to the Grand Court Rules 1995, O.62, r.4(2) that the proceedings be conducted in an economic, expeditious and proper manner. She further submitted that she should be entitled to her costs on an indemnity basis, but, should the court not agree that the respondent conducted the proceedings improperly, unreasonably and/or negligently, then she should be entitled to her costs on the standard basis, to be taxed if not agreed.

The respondent submitted that the court should award the costs of, and associated with, the two summonses for maintenance to the respondent, to be taxed on a standard basis, and that the parties should each bear their own costs in relation to the rest of the proceedings.

Held, making no order as to costs:

In ancillary relief proceedings costs would prima facie follow the event. However, the discretion of the Family Division regarding costs was wide. The court would consider, in particular (i) culpability in the conduct of the litigation; and (ii) the absence of an offer or counter-offer. Further, the

need to use all the available money to house the spouse and children of the family meant that it was normally only appropriate to award costs where the matrimonial assets were substantial. In the circumstances here, although the matrimonial assets exceeded the aggregate of the parties” needs, no costs order would be made: both parties had made reasonable submissions to the court, neither was entirely successful and neither succeeded in ‘beating’ any offer. The court noted that a number of distinguished family judges in England had expressed themselves in favour of a new starting point of no costs orders in ancillary relief proceedings, because each party had to come to court to obtain an order which fairly disposed of the issues between them, which could only be departed from where there was unreasonableness by one party. The court suggested that the difficult issue of the costs assessment process in family financial litigation be referred by the Attorney General to the Law Reform Commission (paras. 7–9; paras. 18–23; para. 25).

1 QUIN, J.: On May 21st, 2010, I delivered a judgment in relation to the respondent”s summons issued on September 24th, 2010 for orders pursuant to ss. 19 and 21 of the Matrimonial Causes Law (2005 Revision) for the disposition of matrimonial property, including the former matrimonial home, and for the provision of maintenance for the two younger children of the marriage-‘E’ and ‘B.’ In that judgment I made the following order:

(a) That the petitioner do transfer her interest in DFC to the respondent;

(b) That the respondent do transfer to the petitioner his interest in the former matrimonial home, namely West Bay North, East Block 9A, Parcel 455;

(c) That the respondent do transfer to the petitioner his interest in Block 8A, Parcel 157;

(d) That the respondent do transfer to the petitioner his interest in the property in Enfield, Maine-Lot 1, Map 3;

(e) That the respondent do retain his sole interest in Block 9A, Parcel 298 and Block 9A, Parcel 465;

(f) That the respondent do retain his sole interest in the property known as the ‘shared land’ namely...