Tania Ann Davies Petitioner v Brynley L'Anson Davies Respondent
| Jurisdiction | Cayman Islands |
| Judge | Hon. Mr. Justice Richard Williams |
| Judgment Date | 13 February 2015 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: FAM 265 OF 2010 |
| Date | 13 February 2015 |
Hon. Mr. Justice Richard Williams
This is an application, brought by way of Summons dated 29 September 2014, seeking financial disclosure from the wife made by the husband. The husband contends that the disclosure sought is required to enable the Court to properly determine his Summons dated 9 May 2014 to “vary” the final Consent Ancillary Relief Order of 25 June 2012. The parties reached settlement during the course of the final hearing. The settlement terms were in principle approved by the Court, leaving the parties to submit the final draft of the order.
The husband's Summons has been met by a Cross-Summons filed by the wife on 29 October 2014, in which she seeks disclosure from the husband.
I hope that the parties do not view me as being discourteous if, for convenience, I herein still refer to them as the husband and the wife.
Regrettably, the parties appear unable to get on with their lives without frequent recourse to the Courts to resolve financial and the minutiae of children issues. Following the making of the comprehensive ancillaries consent order, reached by the parties assisted by experienced on-Island family law practitioners and two of the most eminent Family Bar Queen's Counsel from England and Wales, thehusband has fded eight Summonses/applications (the first being within a month of the Order) and the wife has filed two Summonses.1 The husband has filed six affidavits and the wife has filed seven affidavits since the 25 June 2012. There have been six hearings before me2 since June 2012. The Children Law issues, which had supposedly been agreed at the ancillary relief hearing in May 2012, had to be further clarified following a great deal of “toing and froing” and my meeting with the children, by an Order of 25 August 2014.
The parties need to understand that this perpetual litigation must come to an end. That is the intention behind, and the purpose of, a final consent order reached by parties at arm's length with the benefit of high quality legal representatives who advised based on their and the parties” satisfaction about the level and nature of disclosure given at that time. There is a reason, which needs no elaboration, why paragraph 1 of the consent orders contains the standard provision that ‘this order is intended to be in full and final settlement of both parties” claims arising from the marriage whether under the Matrimonial Causes Law 2005 (‘the Law’) or otherwise.’ The liberty to apply provision at paragraph 12 of the order is not intended to offer encouragement to the parties to run to the courts whenever they have a disagreement or to undermine the agreed basis or foundation of the comprehensive agreed order reached after lengthy negotiations.
The wife's position leading up to the final ancillary relief hearing had been that it would not be realistic to expect her to work. The husband's position set out in his evidence was that he believed she had an earning capacity of CI$75,000 to Cl$85,000. The Court was not privy to the content of the lengthy out of court negotiations held between the parties.
When the parties reached a comprehensive agreement, their experienced legal advisers did not prepare a document containing the factual basis upon which the agreement was reached, including but not limited to the position taken in relation to each party's income which is one of the specific considerations set out in section 19 of the Law3. Unfortunately, this case predated the issuing of Practice Direction No. 1/2013 Consent Orders in Ancillary Relief Proceedings which requires parties to complete a standard form in which the parties must declare their agreed income figures and a confirmation signed by both parties that they have made and received sufficient disclosure to enable them to make an informed decision. Although I recognise and am sympathetic to the problems the attorneys faced during the protracted and difficult negotiation stage in 2012 due to the manner in which their clients were then litigating, if heed is paid in the future to the following guidance given by Lord Oliver of Aylmerton in Dinch v Dinch (4) [1987] 1 W.L.R at 255, the possibility of the situation we now find ourselves in may hopefully be reduced:
‘It is in all cases the imperative professional duty of those invested with the task of advising the parties to these unfortunate disputes
to consider with due care the impact which any terms they agree on behalf of their clients have and are intended to have upon any outstanding application for ancillary relief and to ensure that appropriate provision is inserted in any consent order made as will leave no room for any future doubt or misunderstanding or saddle the parties with the wasteful burden of wholly unnecessary costs.’
A party's responsibility to provide full and frank disclosure is ongoing and includes any foreseeable change of circumstances known at the time that a consent order is reached. As Thorpe J. put it when sitting in the Court of Appeal inBokor-Ingram v Bokor-Ingram [2009] 2 FLR 922 at paragraphs 11 and 18, in the last sentence of each paragraph:
‘11 Any information that is relevant to the outcome must be disclosed.’
‘18…. The duty to disclose extends beyond what is certain on the date that the order is made to any fact relevant to the court's review of the foreseeable future.’
In July 2012, approximately a month after the Consent Order had been approved, the husband became aware that the wife had commenced employment. On 11 February 2013 I ordered that she provide disclosure to the husband concerning her employment. There was a regrettable delay in the wife providing sufficient detail in relation to her employment. In her affidavit sworn on 31 July 2014 the wife states that she contacted the employment agency on the 24 May 2012, had an interview on 13 June 2012 and was offered employment by Atlas Insurance on 19 June 2012. This all predates the approval of the ConsentAncillary Relief Order on 25 June 2012. Although the contract of employment was not signed until 10 July 2012 and her probation period as an accounts officer would not end until 25 January 2013, there is no doubt that the wife was obligated to provide details of her intended employment to the husband before the consent order was perfected. The offer of employment dated 19 June 2012 indicates that for a 30 hour week the base salary is US$70,000 per annum with the possibility of a performance bonus payable in April of each year. The employee will be covered by the Company's health plan and will be enrolled on the contributory pension plan. The husband contends that it is these circumstances which were not known to the husband at the time of making the consent order that justify a review and variation of that order.
I note that the husband contends that the orders he seeks are primarily orders for variation and he does not seek to set aside the order or contend that the whole order is fundamentally flawed due to non-disclosure. The wife contends that the Court should be careful, when considering the applications, to not permit the matter to become in effect a full rehearing the final ancillary relief issues. I note that Lord Brandone of Oakbrook stated inLivesey v Jenkins 1985 A.C. 424 at 445G that:
‘….It will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case was setting aside can possibly be made good.’
Although, a party may be entitled to challenge a consent order reached where there has been a lack of full disclosure, I feel it necessary to make some concluding general comments about the conduct of these proceedings, especially after June 2012. The parties have since June 2012 chosen to litigate some of the interim applications in person, in my view often making applications for determination of issues which by their nature do not merit the use of valuable court time at the expense of other court users. They may not have had legal representation to save costs or one hopes that it may have been because it had been communicated to them by their attorneys that such applications are not of the type that should trouble the courts or attorneys.
I accept that this is not a big money case, but as a great deal of money and time has already been squandered on these proceedings, the parties should pay heed to the sentiments of Munby J.KSO v MJO & Ors [2008] EWHC (Fam) 3031 when he stated:
‘The picture is deeply dispiriting. And it is not as if it is only the adults who suffer from the consequences of such folly. The luckless children do as well. The present case is a sobering, and for me deeply saddening, example. If instead of spending — squandering — over £430,000 in costs, the wife and the husband had been able to resolve their differences at a more modest and, dare I say it, more seemly level of costs, there might very well have been enough left in the matrimonial “pot” to house the wife and children and to enable the children to remain at their school, whilst still leaving something more than a mere consolation prize over for the husband. the mother and the father, for that is what they are —are faced now with the wretched and thankless task of trying to explain to their daughters how it has all come to this.’
This sentiment was echoed by the Sir John Chadwick, President Court of Appeal inB v B CICA (Civil) No. 16/2013 when he stated:
‘As both Lord Hoffmann...
To continue reading
Request your trial