Foster v Foster

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Forte and Conteh, JJ.A.)
• Judgment Date: 04 August 2011
• Court: Court of Appeal (Cayman Islands)
• Date: 04 August 2011

Court of Appeal

(Chadwick, P., Forte and Conteh, JJ.A.)

FOSTER

and

FOSTER

C. Levers for the appellant;

S. Calhaem and J. Wood for the respondent.

Cases cited:

(1) Barder v. Caluori, [1988] A.C. 20; [1987] 2 W.L.R. 1350; [1987] 2 All E.R. 440, followed.

(2) Brusewitz v. Brown, [1923] NZLR 1106, referred to.

(3) Cornick v. Cornick (No. 1), [1994] 2 F.L.R. 530, followed.

(4) Credit Lyonnais Bank Nederland N.V. v. Burch, [1997] 1 All E.R. 144; [1997] 2 F.C.R. 1; [1996] EWCA Civ 1292, referred to.

(5) Ebanks v. Plain, 1988–89 CILR 421, distinguished.

(6) Fry v. LaneELR(1889), 40 Ch. D. 312, referred to.

(7) L v. L, [2008] 1 F.L.R. 26; [2006] EWHC 956 (Fam), followed.

(8) Myerson v. Myerson (No. 2), [2010] 1 W.L.R. 114; [2009] 2 F.C.R. 1; [2009] EWCA Civ 282, followed.

(9) Rose v. Rose, [2003] 2 F.L.R. 197; [2003] EWHC 505 (Fam), followed.

Legislation construed:

Grand Court Rules 1995, O.18, r.19(1):

‘The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

. . .

(b) it is scandalous, frivolous or vexatious . . .’

Matrimonial Causes Law (2005 Revision), s.23:

‘Either spouse or the personal representatives of either spouse may make application for variation of any order made under section 21, and the Court, after hearing the parties, may make such variation.’

Civil Procedure-judgments and orders-consent order-setting aside-may not set aside consent order because party unaware of legal rights and no legal representation, if application only for amendment or variation of order

Civil Procedure-judgments and orders-setting aside-consent order-delay of four years since order made and previous applications to vary or amend it in part precludes application to set aside whole order

Family Law-abuse of process-striking out proceedings-inherent jurisdiction to strike out proceedings for abuse of process in matrimonial cases not precluded by failure expressly to confer power in Rules or otherwise

A former husband and wife were engaged in matrimonial proceedings in the Grand Court.

The respondent wife had filed for divorce and proposed a consent order covering ancillary matters, which the appellant husband signed without independent legal advice. The Grand Court (Henderson, J.) perfected the order in 2006, noting the absence of legal advice. Between 2006 and 2011, the husband made a number of applications to vary parts of the order. No application was made in relation to a paragraph that required him to transfer to her a lump sum of US$1,583,334 from the sale of the former matrimonial home and the sale of his private residence club. The period specified for payment expired (without payment), and the wife pursued bankruptcy proceedings against the husband in an attempt to enforce payment. He sought a variation of the part of the order dealing with the payment of the lump sum and a stay of the bankruptcy proceedings pending a decision on his application. The wife applied to strike out his application as an abuse of process.

The Grand Court (Quin, J.) struck out the husband”s application, concluding that it had an inherent jurisdiction to do so. The husband was given leave to appeal that order on two grounds: first, that the court should have set aside the consent order on the basis that he had no legal representation when he entered into it; and secondly, that the court had lacked the inherent jurisdiction to strike out the application. Leave was not

given to appeal the ruling that his application to vary the order had no prospect of success.

On appeal, the husband submitted that (a) the Grand Court had erred in finding that there was no basis on which the consent order could be set aside on the ground of lack of legal representation; and (b) the Grand Court had erred in striking out his application, as GCR, O.18, r.19(1) had not been incorporated into the Matrimonial Causes Rules (2003 Revision) and its omission precluded any inherent jurisdiction to strike out matrimonial claims for abuse of process.

The wife submitted in reply that (a) the Grand Court had not considered whether the consent order should have been set aside, nor had it been required to do so, since the husband”s application had only been to vary or discharge part of the order; and (b) the Grand Court had inherent jurisdiction to protect itself from abuse of process in matrimonial cases by striking out applications, notwithstanding that the Matrimonial Causes Rules did not explicitly confer that power.

Held, dismissing the appeal:

(1) The Grand Court had not considered, nor been required to consider, whether the consent order should be set aside on the grounds that it was entered into without legal representation. The husband had not applied to have the whole order set aside, but only to vary or discharge the part dealing with payments. Although consent orders could be set aside on the grounds of lack of legal representation, if entered into by persons who were unaware of their legal rights, that principle had no application to proceedings, such as the present, to vary or amend an order. Further, the delay of four years since the consent order had been made and the many applications made since then to vary it precluded any application to have the entire order set aside (paras. 31–41).

(2) The failure of the Matrimonial Causes Rules (2003 Revision) to explicitly incorporate the power found in GCR, O.18, r.19(1) to strike out abusive applications would not preclude the court”s inherent jurisdiction to protect itself from abuse of process in matrimonial cases. The inherent power of the court to protect its own process from abuse did not depend upon its rules and that power could only be removed using the clearest possible words. The Grand Court had had the power to strike out the husband”s application (paras. 42–45).

1 CHADWICK, P.: This is an appeal from an order dated January 31st, 2011, made by Quin, J. in matrimonial proceedings between Ann Rosalind Owen Foster and Robert Don Foster. Although they are no longer married, it is convenient to refer to them in this judgment as ‘the wife’ and ‘the husband.’

2 The parties were married in May 1999. On May 30th, 2006, the wife filed a petition for the dissolution of the marriage. Shortly thereafter, the wife (who is a solicitor) proposed the execution of a consent order covering matters of ancillary relief. That order was signed by both parties on June 6th, 2006. On June 13th, 2006, the parties attended before Henderson, J., who, after making inquiries, satisfied himself that the order was a proper order for the court to make and directed that it be perfected and filed.

3 The consent order recited that-

‘upon the parties agreeing that this Order represents the full and final settlement of all ancillary issues arising out of their marriage, the parties hereby release all rights, claims or interests, whether legal or equitable, which either party may have against each other in respect of any other assets or property of any kind whatsoever which either party may have now or in the future, it being intended that the parties should hereby achieve a “clean break” in respect of their financial affairs.’

4 Paragraphs 1 and 2 of the consent order made provision for the custody, care, and control of the minor child of the marriage. Paragraph 3 provided for access to the child. Paragraph 4 made provision for the husband to pay to the wife US$1m. as a one-off capital lump sum child maintenance payment from the proceeds of any property transaction in which the husband had an interest, or from his receipt of any future inheritance. Paragraph 5 provided that until that capital lump sum was paid, the wife agreed and accepted that she would bear the full cost of the maintenance of the child. Paragraph 6 provided that the wife should have the right and ability to leave the jurisdiction of these Islands with the child and to relocate permanently outside that jurisdiction.

5 Paragraphs 7 and 8 of the consent order addressed financial issues between...