Roy Michael Mctaggart Petitioner/Appellant v Mary Elizabeth Mctaggart Respondent
| Jurisdiction | Cayman Islands |
| Judge | Elliott Mottley,Sir John Chadwick |
| Judgment Date | 12 February 2015 |
| Court | Court of Appeal (Cayman Islands) |
| Docket Number | CICA 14 of 2010 |
| Date | 12 February 2015 |
The Rt Hon Sir John Chadwick, President
The Hon Elliott Mottley, Justice of Appeal
The Rt Hon Sir Anthony Campbell, Justice of Appeal
Mr Delroy Murray instructed by Karin M Thomson for the Appellant, Roy Michael McTaggart
Mr David McGrath of Samson & McGrath for the Respondent, Mary Elizabeth McTaggart
Sir John Chadwick , President:
On 29 November 2011 this Court handed down judgment in an appeal from an order made on 28 June 2010 by Justice Foster QC in ancillary relief proceedings between Roy Michael McTaggart and his former wife, Mary Elizabeth McTaggart. On 19 November 2012 the matter came back before the Court for a ruling on costs. Although the parties are no longer married to each other, it is convenient to refer to them in this Ruling, as the Court did in its judgment, as ‘the Husband’ and ‘the Wife’.
The judge made no order in respect of the costs of the ancillary relief proceedings in the Grand Court. In his judgment he had said that his inclination was ‘to make no further order as to the costs of and incidental to this matter and to leave matters pertaining to the parties' respective costs and contributions thereto as they currently lie’; but that, if agreement as to costs could not be reached, he would hear further argument. In the event, there was a further hearing as to costs at which (it seems) each party advanced arguments as to the proper approach in a ‘big money’ case. This Court was told that the judge gave no reasoned judgment in response to those arguments; but the terms of his order suggests that (on the question of principle) he preferred those advanced on behalf of the Husband, who was contending for ‘No order’.
Paragraph 9 of the judge's Order of 28 June 2010 was in these terms:
‘9. No order in respect of the costs of and incidental to these ancillary proceedings, the contribution to account of [the Wife's] costs totalling CI$82,000 paid by [the Husband] shall not be refunded to him and matters in relation to costs shall be left as they currently lie.’
As the paragraph indicates, the Husband had advanced monies (2 x US$50,000, equivalent to CI$82,000) to the Wife during the course of the proceedings in order that she could pay for legal representation. There was some dispute between the parties as to whether that sum was advanced on account against the final award that the judge could be expected to make in favour of the Wife; or against whatever award of costs the judge might make in her favour. In the circumstances that the judge was making no order for costs (so that there was no costs order against which the advance could be set off) he must be taken to have intended to make it clear that the Wife was not to repay the advance to the Husband, nor to give credit for CI$82,000 against the lump sum payment that he was awarding to her in respect of her ancillary relief claim.
Each party appealed from that paragraph of the judge's order. The Husband, by his notice of appeal filed on 27 July 2010, sought an order that paragraph 9 be set aside:
‘… to the extent necessary to provide that [the Wife] shall be indebted to [the Husband] in the sum of CI$82,000.00 and/or shall give credit to [the Husband] in this sum in respect of his liability to pay [the Wife] any lump sum or sums’.
The Wife, in her notice of cross-appeal filed on 11 August 2010, sought an order that the Husband pay her costs ‘both of the appeal and at first instance’.
At paragraph 105 of the judgment which I handed down on 29 November 2011 (with which the other members of the Court agreed), I observed that it was clear from the very comprehensive analysis advanced on behalf of the parties in their respective skeleton arguments that the proper approach to costs in ‘big-money’ cases, in this jurisdiction, was contentious and needed to be resolved. I went on to say this:
‘106. Put shortly, the position, here, is that costs in matrimonial proceedings — as in other proceedings — are governed by the Grand Court Rules; and, in particular by GCR Order 62, rule 4, which requires (at sub-rule (3)) that:
“If the court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the court shall order the costs to follow the event, except where it appears to the court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”
The effect of a requirement that “costs follow the event”— although not, at the time, directly applicable in matrimonial proceedings in England and Wales (see RSC Order 62 rule 3(5)) — was considered at some length by Lady Justice Butler-Sloss in Gojkovic v Gojkovic [1991] 3 WLR 621. She concluded that the general principle was that if, after contested proceedings, a party obtains an order which is more beneficial to him or her than an offer made by the other party under the Calderbank procedure, then the other party should pay the costs of the proceedings: conversely, if a party fails to obtain an order which is more beneficial than that which could have been accepted under the Calderbank procedure, then that party must expect to pay the costs of the offeror from the date of the offer.
107. The position in England and Wales has moved on since Gojkovic. The position, now, is governed by rule 28.3 of the Family Procedure Rules 2010; which, in effect, restates the amendments to rule 2.71 of the Family Procedure Rules 1991 introduced by the Family Proceedings (Amendment) Rules 2006, SI 2006/352. The general rule in ancillary relief proceedings is that the court will not make an order requiring one party to pay the costs of another party. But there has been no corresponding change in the rules applicable in this jurisdiction. The position remains that, if the court in the exercise of its discretion sees fit to make any order as to costs in ancillary relief proceedings, it shall order costs to follow the event (save where there are some special circumstances). Nevertheless, it is said on behalf of the Husband, that the practice, here, has been to recognise that the Gojkovic approach is no longer apt in the light of the ‘seismic changes’ made to ancillary relief claims in White v White. The wife contends, on the other hand, that, unless and until there is a change to the relevant rule in this jurisdiction, the courts here should continue to follow the guidance in Gojkovic.
108. As I have said, these issues will need to be resolved. But they have not been the subject of oral argument on this appeal. The parties took the view — sensibly, as it seems to me — that they would prefer to await the outcome on the substantive points before addressing questions of costs. Accordingly those issues must be stood over for further argument if the parties are unable, after consideration of our judgments on the substantive points, to agree what the appropriate orders for costs should be, both in the Grand Court and in this Court.’
In the hope that it might assist the parties to agree what the appropriate orders for costs should be, I added the following observations:
‘109. First, that in any further consideration of where the burden of costs should lie, this Court is likely to regard as significant (i) that, in the result, the Wife has been awarded substantially more than the Husband's second Calderbank offer ($6,809,913), made on 7 January 2010, (ii) that the Husband was willing to concede, on this appeal, that an amount be awarded to the Wife which was close to what she had indicated, in her second Calderbank offer ($7,631,404) made on 9 January 2010, she would have accepted before trial, and (iii) that the effect of our judgments in this Court is that we hold that the order which the judge should have made would have been slightly more favourable to the Wife than the amount that she would have accepted under her second Calderbank offer. Second, that the amount of the additional capital sum which should be paid to the Wife in order that she can meet her expenses without having to draw on her capital is, of course, closely linked to the amount of the capital which (following the division of the matrimonial property and the payment of the balance sum required to give effect to the principle of equality) she will have available for investment. If the burden of costs which she has to bear is such as to make serious inroads into the amount which she will have available for investment, fairness may require that the amount of the additional capital sum to be paid to her receives further consideration.’
At paragraph 110 of my judgment, I expressed the Court's conclusions as to the proper disposal of the appeal:
‘110. For the reasons that I have set out, I would direct that the list of matrimonial assets in the Schedule of Assets to the order of 7 July 2010 be amended in the respects described in paragraph 91 of this judgment. I would set aside paragraphs 6 and 7 of that order. And, subject to further consideration in the light of the decision to be made by this Court (or agreement reached between the parties) as to costs, I would vary paragraph 5 of the order by substituting for the figure of $3,912,789, which there appears, the figure of $4,680,820. By way of explanation I should add (i) that the figure of $4,680,820 is the aggregate of the balancing payment required to give effect to the principle of equality ($2,680,820) and an additional payment of $2,000,000 required to meet fully the section 19 factors and (ii) that the aggregate amount of the award, after taking account of the assets to which the Wife will be entitled under the Schedule of Assets as varied and paragraphs 1 to 4 of the order...
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