Richards J
```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> <td>GRAND COURT-</td> </tr> <tr> <td>FAMILY DIVISION</td> <td>CAYMAN</td> </tr> <tr> <td>ISLANDS</td> </tr> </table> <table> <tr> <td>CAUSE NO. FAM 66 OF 2014</td> </tr> </table> <table> <tr> <td>BETWEEN:</td> <td>DJ</td> <td>PETITIONER</td> </tr> <tr> <td>AND:</td> <td>BJ</td> <td>RESPONDENT</td> </tr> </table> <table> <tr> <td>Appearances:</td> <td>Mr. Andrew Woodcock of Hampson and Company for the Petitioner</td> </tr> <tr> <td>Mr. Guy Dillaway-Parry of Priestleys for the Respondent</td> </tr> </table> <table> <tr> <td>Before:</td> <td>The Hon. Justice Cheryll Richards Q.C.</td> </tr> </table> <table> <tr> <td>Hearing:</td> <td>16th September 2019</td> </tr> <tr> <td>Draft Judgment Circulated:</td> <td>23rd December 2019</td> </tr> <tr> <td>Further Submissions:</td> <td>9th January 2020</td> </tr> </table> <h2>HEADNOTE</h2> <p>Family Law - Costs in respect of Final Ancillaries</p> <h2>JUDGMENT</h2> ```
```html <table> <tr> <td>1</td> <td>INTRODUCTION</td> </tr> <tr> <td>2</td> <td>1.</td> <td>This is a ruling on costs following a reserved ruling on the 5th August 2019 on the final ancillary application in this matter.</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>2.</td> <td>On the basis of the general practice in matrimonial cases, that costs follow the event, the Petitioner (the wife) seeks costs on the standard basis and payment of a sum on account for costs in the amount of CI$95,000.00. On the 16th September 2019 oral arguments were made by both parties.</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>3.</td> <td>The wife submits that the award made by the Court in its August ruling was significantly more favourable to her than the offer made by the Respondent (the husband) and that she was therefore the successful party. The husband in reply argues that neither party was entirely successful and that no award of costs should be made.</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>THE LEGAL POSITION</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>4.</td> <td>Section 24 of the Judicature Law (2017 Revision) provides a power to order costs in the discretion of the Court. It is inter alia in the following terms:</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>24.</td> <td>(1)</td> <td>Subject to the provisions of this or any other Law and to rules of court, the costs of and incidental to all civil proceedings in-</td> </tr> <tr> <td>20</td> <td>(a)</td> <td>the Court of Appeal; and</td> </tr> <tr> <td>21</td> <td>(b)</td> <td>the Grand</td> </tr> <tr> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> </tr> <tr> <td>31</td> <td>32</td> <td>33</td> <td>34</td> <td>35</td> <td>36</td> <td>37</td> <td>38</td> <td>39</td> <td>40</td> </tr> <tr> <td>41</td> <td>42</td> <td>43</td> <td>44</td> <td>45</td> <td>46</td> <td>47</td> <td>48</td> <td>49</td> <td>50</td> </tr> <tr> <td>51</td> <td>52</td> <td>53</td> <td>54</td> <td>55</td> <td>56</td> <td>57</td> <td>58</td> <td>59</td> <td>60</td> </tr> <tr> <td>61</td> <td>62</td> <td>63</td> <td>64</td> <td>65</td> <td>66</td> <td>67</td> <td>68</td> <td>69</td> <td>70</td> </tr> <tr> <td>71</td> <td>72</td> <td>73</td> <td>74</td> <td>75</td> <td>76</td> <td>77</td> <td>78</td> <td>79</td> <td>80</td> </tr> <tr> <td>81</td> <td>82</td> <td>83</td> <td>84</td> <td>85</td> <td>86</td> <td>87</td> <td>88</td> <td>89</td> <td>90</td> </tr> <tr> <td>91</td> <td>92</td> <td>93</td> <td>94</td> <td>95</td> <td>96</td> <td>97</td> <td>98</td> <td>99</td> <td>100</td> </tr> <tr> <td>101</td> <td>102</td> <td>103</td> <td>104</td> <td>105</td> <td>106</td> <td>107</td> <td>108</td> <td>109</td> <td>110</td> </tr> <tr> <td>111</td> <td>112</td> <td>113</td> <td>114</td> <td>115</td> <td>116</td> <td>117</td> <td>118</td> <td>119</td> <td>120</td> </tr> <tr> <td>121</td> <td>122</td> <td>123</td> <td>124</td> <td>125</td> <td>126</td> <td>127</td> <td>128</td> <td>129</td> <td>130</td> </tr> <tr> <td>131</td> <td>132</td> <td>133</td> <td>134</td> <td>135</td> <td>136</td> <td>137</td> <td>138</td> <td>139</td> <td>140</td> </tr> <tr> <td>141</td> <td>142</td> <td>143</td> <td>144</td> <td>145</td> <td>146</td> <td>147</td> <td>148</td> <td>149</td> <td>150</td> </tr> <tr> <td>151</td> <td>152</td> <td>153</td> <td>154</td> <td>155</td> <td>156</td> <td>157</td> <td>158</td> <td>159</td> <td>160</td> </tr> <tr> <td>161</td> <td>162</td> <td>163</td> <td>164</td> <td>165</td> <td>166</td> <td>167</td> <td>168</td> <td>169</td> <td>170</td> </tr> <tr> <td>171</td> <td>172</td> <td>173</td> <td>174</td> <td>175</td> <td>176</td> <td>177</td> <td>178</td> <td>179</td> <td>180</td> </tr> <tr> <td>181</td> <td>182</td> <td>183</td> <td>184</td> <td>185</td> <td>186</td> <td>187</td> <td>188</td> <td>189</td> <td>190</td> </tr> <tr> <td>191</td> <td>192</td> <td>193</td> <td>194</td> <td>195</td> <td>196</td> <td>197</td> <td>198</td> <td>199</td> <td>200</td> </tr> <tr> <td>201</td> <td>202</td> <td>203</td> <td>204</td> <td>205</td> <td>206</td> <td>207</td> <td>208</td> <td>209</td> <td>210</td> </tr> <tr> <td>211</td> <td>212</td> <td>213</td> <td>214</td> <td>215</td> <td>216</td> <td>217</td> <td>218</td> <td>219</td> <td>220</td> </tr> <tr> <td>221</td> <td>222</td> <td>223</td> <td>224</td> <td>225</td> <td>226</td> <td>227</td> <td>228</td> <td>229</td> <td>230</td> </tr> <tr> <td>231</td> <td>232</td> <td>233</td> <td>234</td> <td>235</td> <td>236</td> <td>237</td> <td>238</td> <td>239</td> <td>240</td> </tr> <tr> <td>241</td> <td>242</td> <td>243</td> <td>244</td> <td>245</td> <td>246</td> <td>247</td> <td>248</td> <td>249</td> <td>250</td> </tr> <tr> <td>251</td> <td>252</td> <td>253</td> <td>254</td> <td>255</td> <td>256</td> <td>257</td> <td>258</td> <td>259</td> <td>260</td> </tr> <tr> <td>261</td> <td>262</td> <td>263</td> <td>264</td> <td>265</td> <td>266</td> <td>267</td> <td>268</td> <td>269</td> <td>270</td> </tr> <tr> <td>271</td> <td>272</td> <td>273</td> <td>274</td> <td>275</td> <td>276</td> <td>277</td> <td>278</td> <td>279</td> <td>280</td> </tr> <tr> <td>281</td> <td>282</td> <td>283</td> <td>284</td> <td>285</td> <td>286</td> <td>287</td> <td>288</td> <td>289</td> <td>290</td> </tr> <tr> <td>291</td> <td>292</td> <td>293</td> <td>294</td> <td>295</td> <td>296</td> <td>297</td> <td>298</td> <td>299</td> <td>300</td> </tr> <tr> <td>301</td> <td>302</td> <td>303</td> <td>304</td> <td>305</td> <td>306</td> <td>307</td> <td>308</td> <td>309</td> <td>310</td> </tr> <tr> <td>311</td> <td>312</td> <td>313</td> <td>314</td> <td>315</td> <td>316</td> <td>317</td> <td>318</td> <td>319</td> <td>320</td> </tr> <tr> <td>321</td> <td>322</td> <td>323</td> <td>324</td> <td>325</td> <td>326</td> <td>327</td> <td>328</td> <td>329</td> <td>330</td> </tr> <tr> <td>331</td> <td>332</td> <td>333</td> <td>334</td> <td>335</td> <td>336</td> <td>337</td> <td>338</td> <td>339</td> <td>340</td> </tr> <tr> <td>341</td> <td>342</td> <td>343</td> <td>344</td> <td>345</td> <td>346</td> <td>347</td> <td>348</td> <td>349</td> <td>350</td> </tr> <tr> <td>351</td> <td>352</td> <td>353</td> <td>354</td> <td>355</td> <td>356</td> <td>357</td> <td>358</td> <td>359</td> <td>360</td> </tr> <tr> <td>361</td> <td>362</td> <td>363</td> <td>364</td> <td>365</td> <td>366</td> <td>367</td> <td>368</td> <td>369</td> <td>370</td> </tr> <tr> <td>371</td> <td>372</td> <td>373</td> <td>374</td> <td>375</td> <td>376</td> <td>377</td> <td>378</td> <td>379</td> <td>380</td> </tr> <tr> <td>381</td> <td>382</td> <td>383</td> <td>384</td> <td>385</td> <td>386</td> <td>387</td> <td>388</td> <td>389</td> <td>390</td> </tr> <tr> <td>391</td> <td>392</td> <td>393</td> <td>394</td> <td>395</td> <td>396</td> <td>397</td> <td>398</td> <td>399</td> <td>400</td> </tr> <tr> <td>401</td> <td>402</td> <td>403</td> <td>404</td> <td>405</td> <td>406</td> <td>407</td> <td>408</td> <td>409</td> <td>410</td> </tr> <tr> <td>411</td> <td>412</td> <td>413</td> <td>414</td> <td>415</td> <td>416</td> <td>417</td> <td>418</td> <td>419</td> <td>420</td> </tr> <tr> <td>421</td> <td>422</td> <td>423</td> <td>424</td> <td>425</td> <td>426</td> <td>427</td> <td>428</td> <td>429</td> <td>430</td> </tr> <tr> <td>431</td> <td>432</td> <td>433</td> <td>434</td> <td>435</td> <td>436</td> <td>437</td> <td>438</td> <td>439</td> <td>440</td> </tr> <tr> <td>441</td> <td>442</td> <td>443</td> <td>444</td> <td>445</td> <td>446</td> <td>447</td> <td>448</td> <td>449</td> <td>450</td> </tr> <tr> <td>451</td> <td>452</td> <td>453</td> <td>454</td> <td>455</td> <td>456</td> <td>457</td> <td>458</td> <td>459</td> <td>460</td> </tr> <tr> <td>461</td> <td>462</td> <td>463</td> <td>464</td> <td>465</td> <td>466</td> <td>467</td> <td>468</td> <td>469</td> <td>470</td> </tr> <tr> <td>471</td> <td>472</td> <td>473</td> <td>474</td> <td>475</td> <td>476</td> <td>477</td> <td>478</td> <td>479</td> <td>480</td> </tr> <tr> <td>481</td> <td>482</td> <td>483</td> <td>484</td> <td>485</td> <td>486</td> <td>487</td> <td>488</td> <td>489</td> <td>490</td> </tr> <tr> <td>491</td> <td>492</td> <td>493</td> <td>494</td> <td>495</td> <td>496</td> <td>497</td> <td>498</td> <td>499</td> <td>500</td> </tr> <tr> <td>501</td> <td>502</td> <td>503</td> <td>504</td> <td>505</td> <td>506</td> <td>507</td> <td>508</td> <td>509</td> <td>510</td> </tr> <tr> <td>511</td> <td>512</td> <td>513</td> <td>514</td> <td>515</td> <td>516</td> <td>517</td> <td>518</td> <td>519</td> <td>520</td> </tr> <tr> <td>521</td> <td>522</td> <td>523</td> <td>524</td> <td>525</td> <td>526</td> <td>527</td> <td>528</td> <td>529</td> <td>530</td> </tr> <tr> <td>531</td> <td>532</td> <td>533</td> <td>534</td> <td>535</td> <td>536</td> <td>537</td> <td>538</td> <td>539</td> <td>540</td> </tr> <tr> <td>541</td> <td>542</td> <td>543</td> <td>544</td> <td>545</td> <td>546</td> <td>547</td> <td>548</td> <td>549</td> <td>550</td> </tr> <tr> <td>551</td> <td>552</td> <td>553</td> <td>554</td> <td>555</td> <td>556</td> <td>557</td> <td>558</td> <td>559</td> <td>560</td> </tr> <tr> <td>561</td> <td>562</td> <td>563</td> <td>564</td> <td>565</td> <td>566</td> <td>567</td> <td>568</td> <td>569</td> <td>570</td> </tr> <tr> <td>571</td> <td>572</td> <td>573</td> <td>574</td> <td>575</td> <td>576</td> <td>577</td> <td>578</td> <td>579</td> <td>580</td> </tr> <tr> <td>581</td> <td>582</td> <td>583</td> <td>584</td> <td>585</td> <td>586</td> <td>587</td> <td>588</td> <td>589</td> <td>590</td> </tr> <tr> <td>591</td> <td>592</td> <td>593</td> <td>594</td> <td>595</td> <td>596</td> <td>597</td> <td>598</td> <td>599</td> <td>600</td> </tr> <tr> <td>601</td> <td>602</td> <td>603</td> <td>604</td> <td>605</td> <td>606</td> <td>607</td> <td>608</td> <td>609</td> <td>610</td> </tr> <tr> <td>611</td> <td>612</td> <td>613</td> <td>614</td> <td>615</td> <td>616</td> <td>617</td> <td>618</td> <td>619</td> <td>620</td> </tr> <tr> <td>621</td> <td>622</td> <td>623</td> <td>624</td> <td>625</td> <td>626</td> <td>627</td> <td>628</td> <td>629</td> <td>630</td> </tr> <tr> <td>631</td> <td>632</td> <td>633</td> <td>634</td> <td>635</td> <td>636</td> <td>637</td> <td>638</td> <td>639</td> <td>640</td> </tr> <tr> <td>641</td> <td>642</td> <td>643</td> <td>644</td> <td>645</td> <td>646</td> <td>647</td> <td>648</td> <td>649</td> <td>650</td> </tr> <tr> <td>651</td> <td>652</td> <td>653</td> <td>654</td> <td>655</td> <td>656</td> <td>657</td> <td>658</td> <td>659</td> <td>660</td> </tr> <tr> <td>661</td> <td>662</td> <td>663</td> <td>664</td> <td>665</td> <td>666</td> <td>667</td> <td>668</td> <td>669</td> <td>670</td> </tr> <tr> <td>671</td> <td>672</td> <td>673</td> <td>674</td> <td>675</td> <td>676</td> <td>677</td> <td>678</td> <td>679</td> <td>680</td> </tr> <tr> <td>681</td> <td>682</td> <td>683</td> <td>684</td> <td>685</td> <td>686</td> <td>687</td> <td>688</td> <td>689</td> <td>690</td> </tr> <tr> <td>691</td> <td>692</td> <td>693</td> <td>694</td> <td>695</td> <td>696</td> <td>697</td> <td>698</td> <td>699</td> <td>700</td> </tr> <tr> <td>701</td> <td>70
```html <table> <tr> <td>1</td> <td>(3)</td> <td>The court shall have full power to determine by whom and</td> </tr> <tr> <td>2</td> <td>to what extent the costs are to be paid.</td> </tr> <tr> <td>3</td> <td>(4)</td> <td>In any criminal or civil proceedings, the court may disallow</td> </tr> <tr> <td>4</td> <td>or (as the case may be) order the attorney-at-law or foreign</td> </tr> <tr> <td>5</td> <td>lawyer concerned to meet the whole of any wasted costs or</td> </tr> <tr> <td>6</td> <td>such part of them as may be determined in accordance with</td> </tr> <tr> <td>7</td> <td>the rules of court."</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>5.</td> <td>The Grand Court Rules O.62 r.4 provides, inter alia:</td> </tr> <tr> <td>10</td> <td>(2)</td> <td>The overriding objective of this Order is that a successful</td> </tr> <tr> <td>11</td> <td>party to any proceeding should recover from the opposing</td> </tr> <tr> <td>12</td> <td>party the reasonable costs incurred by him in conducting</td> </tr> <tr> <td>13</td> <td>that proceeding in an economical, expeditious and proper</td> </tr> <tr> <td>14</td> <td>manner unless otherwise ordered by the Court.</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>(5)</td> <td>If the Court in the exercise of its discretion sees fit to make</td> </tr> <tr> <td>17</td> <td>any order as to the costs of any proceedings, the Court shall</td> </tr> <tr> <td>18</td> <td>order the costs to follow the event, except when it appears</td> </tr> <tr> <td>19</td> <td>to the Court that in the circumstances of the case some</td> </tr> <tr> <td>20</td> <td>other order should be made as to the whole or any part of</td> </tr> <tr> <td>21</td> <td>the costs.</td> </tr> <tr> <td>22</td> <td>(6)</td> <td>The amount of the costs which a successful party shall be</td> </tr> <tr> <td>23</td> <td>entitled to recover from any other party is</td> </tr> <tr> <td>24</td> <td>(a) the fixed costs prescribed in rule 7;</td> </tr> <tr> <td>25</td> <td>(b) the amount assessed by the Judge in accordance</td> </tr> <tr> <td>26</td> <td>with rule 8;</td> </tr> <tr> <td>27</td> <td>(c) the amount allowed after taxation on the standard</td> </tr> <tr> <td>28</td> <td>basis; or</td> </tr> <tr> <td>29</td> <td>(d) the amount allowed after taxation on the indemnity</td> </tr> <tr> <td>30</td> <td>basis.</td> </tr> <tr> <td>31</td> </tr> <tr> <td>32</td> <td>(7)</td> <td>The orders which the court may make under this rule</td> </tr> <tr> <td>33</td> <td>include an order that a party must pay</td> </tr> <tr> <td>34</td> <td>(a) a proportion of another party's costs;</td> </tr> <tr> <td>35</td> <td>(b) a stated amount in respect of another party's costs;</td> </tr> <tr> <td>36</td> <td>(c) costs from or until a certain date only;</td> </tr> <tr> <td>37</td> <td>(d) costs incurred before proceedings have begun;</td> </tr> <tr> <td>38</td> <td>(e) costs relating to particular steps taken in the</td> </tr> <tr> <td>39</td> <td>proceedings;</td> </tr> <tr> <td>40</td> <td>(f) costs relating only to a distinct part of the</td> </tr> <tr> <td>41</td> <td>proceedings;</td> </tr> <tr> <td>42</td> <td>(g) costs relating to the service of the proceedings;</td> </tr> <tr> <td>43</td> <td>and</td> </tr> <tr> <td>44</td> <td>costs relating to the service of the proceedings;</td> </tr> <tr> <td>45</td> <td>and</td> </tr> </table> Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 3 of 23
In *Gojkovic v. Gojkovic (No. 2)*<sup>1</sup> the English Court of Appeal held that although a court exercises a wider discretion in respect of costs in family proceedings, than in other civil proceedings, to make no order of costs was unusual. With the exception of matters involving children or some special circumstance, where funds are available, costs *prima facie* followed the event. In that case where a wife had obtained an award which was in excess of the husband’s final offer, she was held entitled to have her costs.
Butler-Sloss J. discussed the principles which govern costs in applications for financial relief cases where open offers and *Calderbank* offers are made. The starting point is the general principles as to entitlement to costs in civil matters. The *prima facie* position of costs following the event may be affected by factors including the behavior of one party, such as in material non-disclosure of documents and delay or excessive zeal in seeking disclosure. The learned Judge stated: > "But the starting point in a case where there has been an offer is that, *prima facie*, if the applicant receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. That seems clear from the decided cases and is in accord with the Supreme Court and County Court Rules requiring the court to have regard to the offer. I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case *prima facie* costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that *prima facie* position."
The learned Judge noted that the husband in that case was left with a sizeable sum and did name view as judge that a ```
```html <table> <tr> <td>9.</td> <td>In the case of McTaggart v. McTaggart2 the Cayman Islands Court of Appeal stated</td> </tr> <tr> <td>that while the position has changed in England and Wales following the enactment of</td> </tr> <tr> <td>the Family Procedure Rules 2010, there has been no corresponding change in this</td> </tr> <tr> <td>jurisdiction. The position in this jurisdiction is that:</td> </tr> <tr> <td>“If the court in the exercise of its discretion sees fit to make any order as to costs in</td> </tr> <tr> <td>ancillary relief proceedings, it shall order costs to follow the event (save where there</td> </tr> <tr> <td>are some special circumstances).”</td> </tr> <tr> <td>10.</td> <td>The Court referred with approval to the case of Gojkovic v. Gojkovic and summarised</td> </tr> <tr> <td>the conclusions of Butler-Sloss L.J. as follows:</td> </tr> <tr> <td>“The effect of a requirement that “costs follow the event”-although not, at the time,</td> </tr> <tr> <td>directly applicable in matrimonial proceedings in England and Wales (see R.S.C.,</td> </tr> <tr> <td>O.62，r.3(5))一was considered at some length by Butler-Sloss，L.J. in Gojkovic v.</td> </tr> <tr> <td>Gojkovic (No. 2) (3). She concluded that the general principle was that if, after</td> </tr> <tr> <td>contested proceedings, a party obtains an order which is more beneficial to him or</td> </tr> <tr> <td>her than an offer made by the other party under the Calderbank procedure, then the</td> </tr> <tr> <td>other party should pay the costs of the proceedings：conversely, if a party fails to</td> </tr> <tr> <td>obtain an order which is more beneficial than that which could have been accepted</td> </tr> <tr> <td>under the Calderbank procedure, then that party must expect to pay the costs of the</td> </tr> <tr> <td>offeror from the date of the offer.”</td> </tr> <tr> <td>11.</td> <td>In its application of the general principle the Court observed that it was likely to be</td> </tr> <tr> <td>regarded as significant inter alia that the wife had been awarded substantially more than</td> </tr> <tr> <td>the husband's second Calderbank offer. The Court noted that if the burden of costs</td> </tr> <tr> <td>which the wife has to bear is such as to make serious inroads into the amount which she</td> </tr> <tr> <td>would have available for investment, fairness may require that the amount of the</td> </tr> <tr> <td>additional capital sum to be paid to her receive further consideration.</td> </tr> </table> <sup>2</sup> [2011] (2) CILR 417 Judgment on Costs：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：14.02.2020 Page 5 of 23
In its full judgment on costs in the said case<sup>3</sup>, the Court confirmed these principles and held that: > "The starting point in 'big money' cases, when making a costs order under the Matrimonial Causes Law (2005 Revision), s.21, was that costs should follow the event, and not lie where they fell. The court retained a discretion to depart from this position, and in exercising that discretion it was required by s.19 to consider the parties' resources, including their liability for costs. If an otherwise fair allocation of resources would be rendered unfair by a party's need to meet costs, then the court had discretion to alter the allocation of matrimonial property under s.21(b), order a payment to be made to the party under s.21(e), or make a costs order under s.21(g). In deciding which approach to adopt, the court should have in mind the desirability of avoiding additional litigation to determine costs, and give serious consideration to adjusting orders under s.21(b) or (e)."
The Court concluded that provision ought to have been made for the payment of the wife's costs given that the award made to her exceeded the Calderbank offers made by the husband. The Court further concluded that the wife should receive her costs given that the order which she obtained was in excess of any offer made by the husband. The discretionary nature of the exercise was emphasized by the Court as follows: > "Nevertheless, it is important to keep in mind (a) that GCR, O.62, r.4 recognizes that the court has a discretion whether or not to make any order as to the costs of any proceedings- the mandatory requirement that 'the Court shall order the costs to follow the event' arises only 'if the court in the exercise of its discretion sees fit to make any order as to the costs of the proceedings' – and (b) that the mandatory requirement is, itself, qualified by the words '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 principles discussed in the case of McTaggart v. McTaggart have been applied in the earlier stages of this matter in October 2015 in the ruling of Williams J<sup>4</sup>. This related to the husband's unsuccessful application for leave to appeal a costs order. <sup>3</sup> [2015] (1) CILR 123 <sup>4</sup> 17<sup>th</sup> November 2015 Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 6 of 23 ```
```html <table> <tr> <td>1</td> <td>15.</td> <td>In Mars UK v Teknowledge Ltd.5, Jacob J gave consideration to the applicable principles</td> </tr> <tr> <td>on an application for payment of an amount of costs on account. The learned Judge</td> </tr> <tr> <td>concluded that as a first step, there is a need to form a rough view as to the ultimate</td> </tr> <tr> <td>amount of assessed costs in respect of which an interim payment is to be made. A court</td> </tr> <tr> <td>should consider ordering a payment of a lesser amount approximately equal to what is</td> </tr> <tr> <td>almost certain to be collected. The circumstances to be taken into account in the exercise</td> </tr> <tr> <td>of a discretion whether to order a payment on account include whether or not a party</td> </tr> <tr> <td>may wish to appeal. A second consideration is dealing with the case in a way which is</td> </tr> <tr> <td>proportionate to the financial position of each party. This is one of the matters which</td> </tr> <tr> <td>must be considered in line with the overriding objective to deal with cases justly. The</td> </tr> <tr> <td>learned Judge stated:</td> </tr> <tr> <td>“The overriding objective applies as much to the exercise of the costs discretion as</td> </tr> <tr> <td>to any other discretion given under the Rules. This is a case, for example, where</td> </tr> <tr> <td>there is a wealthy successful party and a financially weak unsuccessful party. That</td> </tr> <tr> <td>is one thing that should be taken into account. Other things that might be taken into</td> </tr> <tr> <td>account are the likelihood of an appeal or possibly successful appeal. For example,</td> </tr> <tr> <td>there may be a case in which a claimant is financially weak. Even if it succeeds there</td> </tr> <tr> <td>might be an appeal by the defendant and the claimant needs the money to respond</td> </tr> <tr> <td>to the appeal. That would be a particularly good reason for ordering a payment on</td> </tr> <tr> <td>account.”</td> </tr> <tr> <td>22</td> <td>16.</td> <td>The principles discussed in the case of Mars UK Ltd. v. Teknowledge Ltd. with respect</td> </tr> <tr> <td>to interim payments were reviewed with approval in the Grand Court case of Riad</td> </tr> <tr> <td>Tawfiq Al Sadik6. Kawaley J summarized the principles in the following way:-</td> </tr> <tr> <td>25.</td> <td>I would summarise the governing principles under Cayman Islands law in</td> </tr> <tr> <td>a more robust pro-receiving party manner as follows:</td> </tr> <tr> <td>(a) der 62 ru</td> <td>29</td> <td>of costs, such sum to be assessed summarily”;</td> </tr> <tr> <td>5[2000] FSR 138</td> </tr> <tr> <td>6FSD 47 of 2009, 6th August 2019</td> </tr> <tr> <td>Judgment on Costs：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：14.02.2020</td> <td>Page 7 of 23</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>(b)</td> <td>the governing principle underpinning this power, and the raison</td> </tr> <tr> <td>2</td> <td>d'etre for the rule, is that "the successful party is entitled to the</td> </tr> <tr> <td>3</td> <td>money. In principle he ought to get it as soon as possible. It does</td> </tr> <tr> <td>4</td> <td>not seem to me to be a good reason for keeping him out of some of</td> </tr> <tr> <td>5</td> <td>his costs that you need time to work out the total amount': per Jacob</td> </tr> <tr> <td>6</td> <td>J in Mars UK Ltd-v-Teknowledge Ltd (Costs) [1999] 2 Costs L.R.</td> </tr> <tr> <td>7</td> <td>598 at 601;</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>(c)</td> <td>in my judgment Jacob J's framing of the relevant principle is, with</td> </tr> <tr> <td>11</td> <td>respect, more persuasive than the more cautiously expressed</td> </tr> <tr> <td>12</td> <td>formulation of the English Court of Appeal in Blakemore-v-</td> </tr> <tr> <td>13</td> <td>Cummings [2010] 1 WLR 983 (at paragraph 23), notwithstanding</td> </tr> <tr> <td>14</td> <td>the fact that Investcorp's counsel was content to rely on this</td> </tr> <tr> <td>15</td> <td>somewhat more restrictive formulation. In that case the principle</td> </tr> <tr> <td>16</td> <td>that a successful party should not be kept out of their costs was</td> </tr> <tr> <td>17</td> <td>described as "an important consideration". With respect, that</td> </tr> <tr> <td>18</td> <td>understates the true weight the principle deserves. The principle</td> </tr> <tr> <td>19</td> <td>that a successful party should be paid some of his costs immediately</td> </tr> <tr> <td>20</td> <td>and before taxation is not simply "an important consideration", it is</td> </tr> <tr> <td>21</td> <td>the governing and predominant principle articulated by the interim</td> </tr> <tr> <td>22</td> <td>payment on account of costs rule;</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>(d)</td> <td>the purpose of the rule is to enable the Court to avoid the injustice</td> </tr> <tr> <td>25</td> <td>of delayed payment of all costs until the total amount is determined</td> </tr> <tr> <td>26</td> <td>upon taxation through a summary partial assessment. This is</td> </tr> <tr> <td>27</td> <td>because the need to carry out a detailed assessment through</td> </tr> <tr> <td>28</td> <td>taxation is "not a good reason" for not ordering some costs to be</td> </tr> <tr> <td>29</td> <td>paid immediately. Whether or not the discretion should be exercised</td> </tr> <tr> <td>30</td> <td>is not shaped by the need to do justice in an abstract sense, entirely</td> </tr> <tr> <td>31</td> <td>untethered from the core purpose of the rule. Whether or not an</td> </tr> <tr> <td>32</td> <td>interim payment on account of costs should be ordered will almost</td> </tr> <tr> <td>33</td> <td>invariably require an assessment to be made of whether or not there</td> </tr> <tr> <td>34</td> <td>is a good reason not to order an interim payment and/or a good</td> </tr> <tr> <td>35</td> <td>reason for requiring the receiving party to be deprived of any costs</td> </tr> <tr> <td>36</td> <td>until the taxation process is complete;</td> </tr> <tr> <td>37</td> </tr> <tr> <td>38</td> <td>(e)</td> <td>GCR Order 62 rule 4 (7) (h), properly construed, contains an</td> </tr> <tr> <td>39</td> <td>implicit starting assumption that an interim payment should be</td> </tr> <tr> <td>40</td> <td>made. Obviously this starting assumption has somewhat less weight</td> </tr> <tr> <td>41</td> <td>than an express statutory presumption. But the starting assumption</td> </tr> <tr> <td>42</td> <td>tearing is not</td> </tr> <tr> <td>43</td> <td>46</td> <td>the fact that</td> </tr> <tr> <td>44</td> <td>47</td> <td>the principle is a good d</td> </tr> <tr> <td>45</td> <td>48</td> <td>articulatending is "dri</td> </tr> <tr> <td>49</td> <td>50</td> <td>them of all of their costs, and</td> </tr> <tr> <td>(ii)</td> <td>to empower the Court to summarily assess an appropriate</td> </tr> <tr> <td>partial costs payment which should immediately be made;</td> </tr> </table> Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 8 of 23 ```
```html <table> <tr> <td>1</td> <td>(f)</td> <td>the current English CPR rule 44.2 (8) in my judgment simply makes</td> </tr> <tr> <td>2</td> <td>the implicit assumption in the earlier English rule explicit, giving</td> </tr> <tr> <td>3</td> <td>express legislative approval to the approach of Jacobs J in Mars</td> </tr> <tr> <td>4</td> <td>UK (which was, perhaps unintentionally, somewhat diluted by the</td> </tr> <tr> <td>5</td> <td>Court of Appeal in Blakemore (or Blackmore) by providing that</td> </tr> <tr> <td>6</td> <td>where taxation is ordered, the Court "will order that party to pay a</td> </tr> <tr> <td>7</td> <td>reasonable sum on account of costs, unless there is good reason not</td> </tr> <tr> <td>8</td> <td>to do so" [emphasis added]. To my mind it merely states more</td> </tr> <tr> <td>9</td> <td>clearly and explicitly what is already implicit in the current Cayman</td> </tr> <tr> <td>10</td> <td>Islands rule rather than articulating an entirely distinct and</td> </tr> <tr> <td>11</td> <td>different jurisdictional approach;</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>(g)</td> <td>in concluding that GCR Order 62 rule 4(7) (h) contains an implicit</td> </tr> <tr> <td>14</td> <td>starting assumption in favour of an interim payment on account of</td> </tr> <tr> <td>15</td> <td>costs, I do not ignore the fact that power to make such an Order is</td> </tr> <tr> <td>16</td> <td>clearly discretionary and that the strength of the starting</td> </tr> <tr> <td>17</td> <td>assumption may be weaker or stronger depending on the</td> </tr> <tr> <td>18</td> <td>circumstances of each case. It is important to remember however,</td> </tr> <tr> <td>19</td> <td>that when Jacobs J in Mars UK Ltd-v-Teknowledge Ltd</td> </tr> <tr> <td>20</td> <td>(Costs)[1999] 2 Costs L.R. 598 at 601 was discussing the</td> </tr> <tr> <td>21</td> <td>overriding objective as applying "as much to the exercise of the</td> </tr> <tr> <td>22</td> <td>costs discretion as to any other discretion given under the Rules",</td> </tr> <tr> <td>23</td> <td>he was dealing with a somewhat different procedural code. The</td> </tr> <tr> <td>24</td> <td>impact of the Overriding Objective in the Preamble to the Grand</td> </tr> <tr> <td>25</td> <td>Court Rules may apply in a general sense to GCR Order 62 as much</td> </tr> <tr> <td>26</td> <td>as it applies to other parts of the GCR code. But when construing</td> </tr> <tr> <td>27</td> <td>the jurisdiction conferred by Order 62, it is important to have</td> </tr> <tr> <td>28</td> <td>regard to GCR Order 62 rule 4 (2), which states in terms which</td> </tr> <tr> <td>29</td> <td>provide in a general sense support for a more robust approach to</td> </tr> <tr> <td>30</td> <td>construing GCR Order 62 rule 4 (7) (h):</td> </tr> <tr> <td>31</td> </tr> <tr> <td>32</td> <td>(2) The overriding objective of this Order is that a</td> </tr> <tr> <td>33</td> <td>successful party to any proceeding should recover</td> </tr> <tr> <td>34</td> <td>from the opposing party the reasonable costs</td> </tr> <tr> <td>35</td> <td>incurred by him in conducting that proceeding in</td> </tr> <tr> <td>36</td> <td>an economical, expeditious and proper manner</td> </tr> <tr> <td>37</td> <td>unless otherwise ordered by the Court";</td> </tr> <tr> <td>38</td> </tr> <tr> <td>39</td> <td>(h)</td> <td>one recognised and significant reason for not ordering an interim</td> </tr> <tr> <td>40</td> <td>payment on account of costs is the need to avoid stifling an appeal:</td> </tr> <tr> <td>41</td> <td>Re BDO [2018 (1) CILR 187] (Parker J at paragraphs 37-38).</td> </tr> <tr> <td>42</td> <td>Another is that the application for an interim payment should not</td> </tr> <tr> <td>43</td> <td>be a disproceeding: p</td> </tr> <tr> <td>44</td> <td>v-Teknover Jacobs J</td> </tr> <tr> <td>45</td> <td>proportionat in Mars UF</td> </tr> <tr> <td>46</td> <td>wledge Lte P Ltd-</td> </tr> <tr> <td>47</td> </tr> <tr> <td>48</td> <td>49</td> <td>50</td> </tr> </table> Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 9 of 23 ```
```markdown (i) a summary assessment of the appropriate interim payment amount must obviously be possible and sufficient supporting material (e.g. a draft bill of costs or a breakdown of incurred costs) must be placed before the Court; (j) the Court's discretionary powers under the rule are sufficiently flexible to enable justice to be done on a case by case basis, being guided by both the letter and spirit of the relevant rule." THE SUBMISSIONS
The parties agree that the Calderbank approach was followed in this case and there is also agreement as to the applicable legal principles. There is disagreement as to whether or not there was a successful party.
Following the hearing, Practice Direction 3 of 2019 was gazetted on the 9th October 2019. This requires that the parties provide schedules of costs at least 14 days before the ancillary hearing. Going forward this will assist to eliminate the need for second hearings such as in this matter.
In this case which pre-dated that Direction, no such schedules were provided at the time of or prior to the hearing. By Affidavit dated 13th September 2019, the wife has now provided evidence of a global sum of CI $215,000.00 as being the costs incurred to date. She attests that a portion of that sum was written down leaving approximately CI $195,000.00 outstanding. Bills been provided as follows: Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 10 of 23 ```
```html <table> <tr> <td>Attorneys 1st in time</td> <td>March 2014-Dec. 2017</td> <td>118，199.00</td> <td>GBP</td> </tr> <tr> <td>Attorneys 2nd in time</td> <td>May 2018-March 2019</td> <td>18，494.50</td> </tr> <tr> <td>Attorneys 3rd in time</td> <td>May 2019-July 2019</td> <td>37，293.97</td> </tr> <tr> <td>Expert's Report</td> <td>19，586.25</td> </tr> <tr> <td>Senior Counsel</td> <td>28th May 2019-5th June 2019</td> <td>35，000.00</td> </tr> <tr> <td>Total CIS</td> <td>193，573.72</td> </tr> <tr> <td>Total GBP</td> <td>35，000.00</td> </tr> </table>
The wife refers to the final Calderbank offer made by the husband before trial which was as follows: <table> <tr> <td>Wife CIS</td> <td>Husband CIS</td> </tr> <tr> <td>Capital Payment</td> <td>1，010，278.00</td> <td>410，000.00</td> </tr> <tr> <td>Housing Lump Sum</td> <td>298，750.00</td> <td>Nil</td> </tr> <tr> <td>Maintenance including rent</td> <td>10，212.00</td> <td>6，156.00</td> </tr> </table>
Counsel on behalf of the wife submits that the wife should not be deprived of her costs for two reasons. The husband is the economically dominant party to the proceedings, and it was open to him to present a reasonable and achievable offer of settlement. Additionally it is urged that the economic disparity between the parties is such that there is no basis for the exercise of a discretion in a manner such as to deprive the wife of her costs. It is further argued that in any event, the difference between the offer made by the husband and the sums awarded under the judgment is significantly greater than the difference between the wife's offer and the sum ultimately awarded.
Counsel on behalf of the husband makes four principal submissions. Firstly that by virtue of the Court cited case relating to the effect of the decisions of Appeal Court v. Mettag, the costs are only the recoverable costs in the wife's application for financial relief. The wife is seeking to recover the entire cost of the ```
```html <table> <tr> <td>1</td> <td>divorce proceedings to include not only the application for financial relief but also</td> </tr> <tr> <td>2</td> <td>including but not limited to a) resolution of the Further Amended Petition and b)</td> </tr> <tr> <td>3</td> <td>disclosure issues relating to the wife's assertion that the husband had a financial interest</td> </tr> <tr> <td>4</td> <td>in the Firm to which he is employed. This assertion was subsequently abandoned.</td> </tr> <tr> <td>5</td> <td>24.</td> <td>Under this heading, Counsel on behalf of the husband submits that the original Petition</td> </tr> <tr> <td>6</td> <td>which was filed on the 15th April 2014 was twice amended. This was done on the 2nd</td> </tr> <tr> <td>7</td> <td>October 2014 and on the 7th September 2015 before the Petition was subsequently agreed</td> </tr> <tr> <td>8</td> <td>to by the husband and proved. The issues requiring amendment related to the reference</td> </tr> <tr> <td>9</td> <td>to co-respondent RK and the wife's non-compliance with the Grand Court Rules.</td> </tr> <tr> <td>10</td> <td>11</td> <td>25.</td> <td>By Summons filed on the 23rd July 2014, the wife sought leave to file an Amended</td> </tr> <tr> <td>12</td> <td>Petition. By Order of the Learned Chief Justice made on the 28th July 2014, the wife's</td> </tr> <tr> <td>13</td> <td>Summons was dismissed and there was a direction to her to amend the Petition so as to</td> </tr> <tr> <td>14</td> <td>properly particularize the material facts in accordance with the Grand Court Rules. Costs</td> </tr> <tr> <td>15</td> <td>were reserved.</td> </tr> <tr> <td>16</td> <td>17</td> <td>26.</td> <td>It is submitted by Counsel for the husband that applications for amendments to the</td> </tr> <tr> <td>18</td> <td>Petition cannot be characterised as a success for the wife who failed to draft the</td> </tr> <tr> <td>19</td> <td>document in compliance with the Rules.</td> </tr> <tr> <td>20</td> <td>21</td> <td>27.</td> <td>The wife in response to this argument submitted that work in relation to the Petition was</td> </tr> <tr> <td>22</td> <td>done of the daseetbaby part of the husband and was a necessary part of the process</td> </tr> <tr> <td>23</td> <td>at the Venesal and wasess.</td> </tr> <tr> <td>24</td> <td>25</td> <td>28.</td> <td>As a under this he</td> </tr> <tr> <td>26</td> <td>band sub th</td> </tr> <tr> <td>second limb leading Co hu</td> </tr> <tr> <td>e course</td> </tr> <tr> <td>of the proceedings a number of ancillary applications involving maintenance, disclosure,</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>removal of child from the jurisdiction and adjournments had been dealt with by different</td> </tr> <tr> <td>2</td> <td>judges. In some cases costs orders had been made. Counsel detailed these as follows:</td> </tr> <tr> <td>3</td> <td>i. "On the 4th September 2015, Williams J. ordered that the Respondent</td> </tr> <tr> <td>4</td> <td>should pay 50% of the Petitioner's costs of preparation for, and attendance</td> </tr> <tr> <td>5</td> <td>at that hearing.</td> </tr> <tr> <td>6</td> <td>7</td> <td>ii. On the 17th November 2015, Williams J. ordered that the Respondent</td> </tr> <tr> <td>8</td> <td>should "pay the wife's costs incurred in preparation for and attendance at</td> </tr> <tr> <td>9</td> <td>the hearing of the leave to appeal application"</td> </tr> <tr> <td>10</td> <td>11</td> <td>iii. On the 14th December 2017, Gunn J. ordered that the "Respondent shall pay</td> </tr> <tr> <td>12</td> <td>fifty percent of the Petitioner's costs in preparation for and attendance at</td> </tr> <tr> <td>13</td> <td>the hearing of her application [for increased maintenance]. Such costs to</td> </tr> <tr> <td>14</td> <td>be taxed if not agreed";</td> </tr> <tr> <td>15</td> <td>16</td> <td>iv. On the 14th December 2017, Gunn J. ordered that the "Petitioner shall pay</td> </tr> <tr> <td>17</td> <td>the Respondent's costs in preparation for and attendance at the hearing of</td> </tr> <tr> <td>18</td> <td>this 14 December summons [for removal from the jurisdiction]. Such costs</td> </tr> <tr> <td>19</td> <td>to be taxed if not agreed".</td> </tr> <tr> <td>20</td> <td>21</td> <td>v. On the 10th April 2019, Gunn J. ordered that "The Petitioner is to pay all of</td> </tr> <tr> <td>22</td> <td>Respondent's incidental to</td> <td>wa.</td> <td>9, to be</td> </tr> <tr> <td>23</td> <td>the adjourn</td> <td>24</td> <td>25</td> <td>the s costs of amment of the</td> <td>24</td> <td>25</td> <td>final</td> <td>anci g which or</td> <td>ed if not</td> <td>and with respect to the Respondent's costs referred to in [the above</td> <td>paragraph]: (i) these shall include preparation for and attendance at the</td> </tr> </table> Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 13 of 23 ```
```html <table> <tr> <td>1</td> <td>hearing of the Petitioner's summons on 27 March 2019, preparation for and</td> </tr> <tr> <td>2</td> <td>attendance at today's CMC and drafting of any response by the Respondent</td> </tr> <tr> <td>3</td> <td>to any affidavit filed by the Petitioner in accordance with paragraph 2 of</td> </tr> <tr> <td>4</td> <td>this order; (ii) these shall not include costs of drafting of 22 March 2019</td> </tr> <tr> <td>5</td> <td>Affidavit by Respondent; (iii) potential further costs in relation to disclosure</td> </tr> <tr> <td>6</td> <td>requests of the Petitioner are reserved and leave is granted by the</td> </tr> <tr> <td>7</td> <td>Respondent to apply in relation to these costs following the Petitioner's</td> </tr> <tr> <td>8</td> <td>response to paragraph 1 of this order".</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>29.</td> <td>In the course of this hearing, Counsel on behalf of the wife in response to these</td> </tr> <tr> <td>12</td> <td>submissions clarified that costs are not being sought with respect to matters which have</td> </tr> <tr> <td>13</td> <td>already been decided and agreed that any costs order would be separate from those</td> </tr> <tr> <td>14</td> <td>alreadymade. It was stated that the wife is not seeking to reopen costs orders which</td> </tr> <tr> <td>15</td> <td>would be dealt with separately during the taxation process. Costs are being sought which</td> </tr> <tr> <td>16</td> <td>are not covered by existing costs orders.</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>30.</td> <td>The primary submission made on behalf of the husband is that both parties failed to</td> </tr> <tr> <td>19</td> <td>achieve or come within a reasonable margin of their offers and thus neither party</td> </tr> <tr> <td>20</td> <td>succeeded in achieving an order which at least met their best efforts. It is urged that the</td> </tr> <tr> <td>21</td> <td>Court's judgment came within an appreciable margin of the highest offer made by the</td> </tr> <tr> <td>22</td> <td>husband and was very significantly below the lowest offer made by the wife. My view</td> </tr> <tr> <td>23</td> <td>is that of the principal that the Court's judgment came within an appreciable margin of the</td> </tr> <tr> <td>24</td> <td>highest offer made by the husband and was very significantly below the lowest offer made</td> </tr> <tr> <td>25</td> <td>by the wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>26</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>27</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>28</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>29</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>30</td> <td>principal that the Court's judgment came within an appreciable margin of the highest offer</td> </tr> <tr> <td>31</td> <td>made by the husband and was very significantly below the lowest offer made by the wife.</td> </tr> <tr> <td>32</td> <td>My view is that of the principal that the Court's judgment came within an appreciable</td> </tr> <tr> <td>33</td> <td>margin of the highest offer made by the husband and was very significantly below the</td> </tr> <tr> <td>34</td> <td>lowest offer made by the wife. My view is that of the principal that the Court's judgment</td> </tr> <tr> <td>35</td> <td>came within an appreciable margin of the highest offer made by the husband and was</td> </tr> <tr> <td>36</td> <td>very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>37</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>38</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>39</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>40</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>41</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>42</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>43</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>44</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>45</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>46</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>47</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>48</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>49</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>50</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>51</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>52</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>53</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>54</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>55</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>56</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>57</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>58</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>59</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>60</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>61</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>62</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>63</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>64</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>65</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>66</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>67</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>68</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>69</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>70</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>71</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>72</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>73</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>74</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>75</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>76</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>77</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>78</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>79</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>80</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>81</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>82</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>83</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>84</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>85</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>86</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>87</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>88</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>89</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>90</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>91</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>92</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>93</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>94</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>95</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>96</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>97</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>98</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>99</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>100</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>101</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>102</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>103</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>104</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>105</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>106</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>107</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>108</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>109</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>110</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>111</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>112</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>113</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>114</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>115</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>116</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>117</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>118</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>119</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>120</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>121</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>122</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>123</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>124</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>125</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>126</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>127</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>128</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>129</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>130</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>131</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>132</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>133</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>134</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>135</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>136</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>137</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>138</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>139</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>140</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>141</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>142</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>143</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>144</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>145</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>146</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>147</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>148</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>149</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>150</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>151</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>152</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>153</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>154</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>155</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>156</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>157</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>158</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>159</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>160</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>161</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>162</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>163</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>164</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>165</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>166</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>167</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>168</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>169</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>170</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>171</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>172</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>173</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>174</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>175</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>176</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>177</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>178</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>179</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>180</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>181</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>182</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>183</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>184</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>185</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>186</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>187</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>188</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td> </tr> <tr> <td>189</td> <td>judgment came within an appreciable margin of the highest offer made by the husband and</td> </tr> <tr> <td>190</td> <td>was very significantly below the lowest offer made by the wife. My view is that of the</td> </tr> <tr> <td>191</td> <td>principal that the Court's judgment came within an appreciable margin of the highest</td> </tr> <tr> <td>192</td> <td>offer made by the husband and was very significantly below the lowest offer made by the</td> </tr> <tr> <td>193</td> <td>wife. My view is that of the principal that the Court's judgment came within an</td> </tr> <tr> <td>194</td> <td>appreciable margin of the highest offer made by the husband and was very significantly</td> </tr> <tr> <td>195</td> <td>below the lowest offer made by the wife. My view is that of the principal that the Court's</td>
```html <table> <tr> <td>1</td> <td>31.</td> <td>Counsel for the husband also places some reliance on the fact that in the course of negotiations, the second Calderbank offer made by the husband, was for a lump sum of CI$175，000.00，and purchase of a property for J. of a value of $700，000.00. This was made on the 16th July 2018，and the wife did not respond to this offer until the 1st November 2018 whereupon it was rejected with no counter offer. Counsel submits that effectively the wife withdrew from the negotiation process.</td> </tr> <tr> <td>7</td> <td>8</td> <td>32.</td> <td>The husband made a further written offer on the 23rd May 2019 and the wife countered on the 31st May 2019 with the offer of a capital payment of CI$1，010，278.00，purchase of a house of a value CI$2，350，000.00 with further lump sum payment of CI$298，750.00 and maintenance payments of CI$10，212.00.</td> </tr> <tr> <td>12</td> <td>13</td> <td>33.</td> <td>I have given consideration to the submission made on behalf of the husband that the wife delayed for the five months between June and November 2018 and withdrew from the negotiation process by not responding with a counter offer. While this non-response may not have been helpful in resolving the matter，I do note that in May 2019，the wife responded to a further offer from the husband and effectively re-engaged in the negotiation process. I do not consider that her conduct in the intervening period is such that she should be penalized in costs if she is the successful party. There was somewhat of a gulf between the parties. The husband's first offer was for a lump sum payment of $150，000.00 which he had increased by $25，000.00 to $175，000.00 in response to the wife's counter offer of CI$925，000.00.</td> </tr> <tr> <td>20</td> <td>21</td> <td>22</td> <td>25</td> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>32</td> <td>33</td> <td>34.</td> <td>The ted that her l</td> <td>as an ora</td> <td>ue 31st Matha</td> <td>2019 to</td> <td>2019 and</td> <td>increase the capital payment to CI$410，000.00. The table below shows the husband's final offers and the award made by the Court：</td> </tr> </table> ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{tabularx} \usepackage{graphicx} \usepackage{hyperref} \section{Counsel for the husband also places some reliance on the fact that in the course of negotiations, the second Calderbank offer made by the husband, was for a lump sum of CI\$175,000.00, and purchase of a property for J. of a value of \$700,000.00. This was made on the 16th July 2018, and the wife did not respond to this offer until the 1st November 2018 whereupon it was rejected with no counter offer. Counsel submits that effectively the wife withdrew from the negotiation process.} \section{The husband made a further written offer on the 23rd May 2019 and the wife countered on the 31st May 2019 with the offer of a capital payment of CI\$1,010,278.00, purchase of a house of a value CI\$2,350,000.00 with further lump sum payment of CI\$298,750.00 and maintenance payments of CI\$10,212.00.} \section{I have given consideration to the submission made on behalf of the husband that the wife delayed for the five months between June and November 2018 and withdrew from the negotiation process by not responding with a counter offer. While this non-response may not have been helpful in resolving the matter, I do note that in May 2019, the wife responded to a further offer from the husband and effectively re-engaged in the negotiation process. I do not consider that her conduct in the intervening period is such that she should be penalized in costs if she is the successful party. There was somewhat of a gulf between the parties. The husband's first offer was for a lump sum payment of \$150,000.00 which he had increased by \$25,000.00 to \$175,000.00 in response to the wife's counter offer of CI\$925,000.00.} \section{The ted that her l as an ora juie 31st Matha 2019 to 2019 and increase the capital payment to CI\$410,000.00. The table below shows the husband's final offers and the award made by the Court:} ```
```html <table> <tr> <th></th> <th>Wife CIS</th> <th>Husband CIS</th> <th>Award</th> </tr> <tr> <td>Capital Payment</td> <td>1,010,278.00</td> <td>410,000.00</td> <td>747,878.99</td> </tr> <tr> <td>Housing down payment</td> <td>298,750.00</td> <td>Nil</td> <td>10 % of price</td> </tr> <tr> <td>Lump Sum</td> <td></td> <td></td> <td></td> </tr> <tr> <td>Maintenance including rent</td> <td>10,212.00</td> <td>6,156.00</td> <td>7,157.00</td> </tr> <tr> <td>Housing value</td> <td>1,200,000.00</td> <td>700,000.00</td> <td>800,000.00 to 900,000.00</td> </tr> </table> ``` ```latex \section{Counsel on behalf of the husband submitted thirdly that the judgment determined that assets accumulated during the marriage should be distributed equally, this must mean assets net of liabilities and thus that the cost liabilities of the parties should be divided equally. It was urged that:} \textit{``Further, to any extent that the Respondent was responsible for the wife's costs in these proceedings this would constitute a liability that accrued "during the marriage" as defined. As such, this liability would reduce the distributable amount to be divided equally between the parties to the exact extent of any such order.''} ``` ```html <table> <tr> <th></th> <th>Wife CIS</th> <th>Husband CIS</th> <th>Award</th> </tr> <tr> <td>Capital Payment</td> <td>1,010,278.00</td> <td>410,000.00</td> <td>747,878.99</td> </tr> <tr> <td>Housing down payment</td> <td>298,750.00</td> <td>Nil</td> <td>10 % of price</td> </tr> <tr> <td>Lump Sum</td> <td></td> <td></td> <td></td> </tr> <tr> <td>Maintenance including rent</td> <td>10,212.00</td> <td>6,156.00</td> <td>7,157.00</td> </tr> <tr> <td>Housing value</td> <td>1,200,000.00</td> <td>700,000.00</td> <td>800,000.00 to 900,000.00</td> </tr> </table> ``` ```latex \section{It is difficult to accept this submission in these circumstances where what is being determined is whether costs should follow the event, the event in this case being the conclusion of ancillary proceedings.} \section{Having considered all the circumstances of the case and the submissions made by both Counsel, subject to exceptions which arise in respect of some items, I do not see a basis for other than the usual course to apply that costs follow the event. Applying the principles discussed in the cases cited above, I conclude that the earlier judgment was more favorable to the wife than the best offers of the husband. In summary, the husband is in thd to obtain a which was m that the e coul accepted unc, w dure'. Nexte at which is case 'failen overall ordal than that v er which d have been : ler the Caoce nt of the wife's' costs is known, it is undoubtedly the case, that this would amount to a significant dent in the lump sum payment awarded to her. In these circumstances where she is the}
financially weaker party, where the husband's resources are substantial, where by virtue of the judgment made he is left with a significant asset balance, the justice of this case requires that the usual principle is applied. The wife is entitled to her costs as the successful party.
Counsel on behalf of the husband made the alternative submission that there are special circumstances such that the wife should not be awarded costs. These include in particular the wife's pursuit of disclosure with respect to the husband's partnership in the Firm to which he is employed.
I refer to paragraph 26 of the earlier judgment in this matter which references the pre-nuptial agreement between the parties which undoubtedly lead to the confusion as to the nature of the husband's interest in the Firm. In that agreement, his interest is described as partnership interest and the assets therein as ownership percentage as a partner/owner of the Firm. The husband's concern with respect to costs is that the wife is seeking an order for the payment of costs of an expert witness in relation to the husband's interest, in circumstances where the matter had been clarified by the Affidavit of LN, the Director of Finance and Operations, as far back as the 17th June 2016 and that several offers had been made to provide her Attorneys with inspection of the documents which would support the factual position.
The sequence of events as put forward by the husband is inter alia: a. 14: details of firm provided by husband on 11th July 2017; ownership in his response to fnse to 25 the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; 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```markdown c. December 2016 – January 2017: email exchange between Attorneys on behalf of Firm and counsel for wife providing further full details in respect of questions raised; d. 1st February 2017: Invitation to review documentation of Firm re-sent; e. 26th May 2017: offer accepted; f. 3rd August 2017: Date for review of documents set, cancelled on day by wife’s Attorneys, no further attempts to make appointment made; g. 14th June 2017 & 3 August 2017: appointment to review documents cancelled by wife; h. 4th December 2018: Court strongly invites allowance of a further appointment; i. 8th and 27th February 2019: Attendance at offices of Firm for review of documents. Counsel for wife provided with opportunity to ask any other questions, declined. j. Undisclosed date: wife instructs "expert's report which was relevant to an assessment of the assets of the Respondent in these proceedings"; k. 3rd June 2019: wife abandons previous assertions in respect of Firm at trial.
Counsel for the husband submits further that it was open to the wife to satisfy herself as to the position since July 2014 and that she declined to do so until February 2019. It is submitted that her position with respect to the husband’s interest has been entirely unreasonable and that the Court should exercise its discretion by making an order in favour of the husband with respect to costs associated with disclosure issues concerning the Firm since July 2014.
In reisel on behalf at there want e submitsas
4ponse Cour If of the v th: lack of clarity on this issue. It is said that all the hallmarks indicated that there was equity partnership, yet there was a denial of ownership. It is further said that these were matters ```
```html <table> <tr> <td>1</td> <td>which required detailed investigation in the course of the proceedings, so that the steps</td> </tr> <tr> <td>2</td> <td>taken to investigate were all reasonable in the circumstances.</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>43.</td> <td>In my view a legitimate issue arose as to the husband’s status in the Firm given the</td> </tr> <tr> <td>5</td> <td>manner in which the husband described his interest in the pre-nuptial agreement. In the</td> </tr> <tr> <td>6</td> <td>face of this, the wife’s initial attempt to clarify the matter was entirely reasonable in the</td> </tr> <tr> <td>7</td> <td>circumstances. The husband seeks his costs incurred since 2014, for complying with the</td> </tr> <tr> <td>8</td> <td>wife’s disclosure requests concerning the Firm. He says that he made earnest efforts to</td> </tr> <tr> <td>9</td> <td>provide full disclosure. I do have a concern that following the receipt of the Affidavit</td> </tr> <tr> <td>10</td> <td>of 17th June 2016 which sets out the detail as to the nature of his interest and after having</td> </tr> <tr> <td>11</td> <td>been offered the opportunity to review the relevant documents there was considerable</td> </tr> <tr> <td>12</td> <td>delay in accepting this opportunity. The Affidavit of LN of 17th June 2016 was an</td> </tr> <tr> <td>13</td> <td>important response from someone other than the husband. The Attorneys on behalf of</td> </tr> <tr> <td>14</td> <td>the Firm wrote to Counsel for the wife in December 2016 and January 2017 and an</td> </tr> <tr> <td>15</td> <td>invitation to inspect was re-sent on 1st February 2017. That invitation was not acted upon</td> </tr> <tr> <td>16</td> <td>until the 27th February 2019. The matter also appears to have been further pursued</td> </tr> <tr> <td>17</td> <td>beyond the review of the documents. The wife may well have persisted long beyond</td> </tr> <tr> <td>18</td> <td>the point reasonably necessary.</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>44.</td> <td>In light of the submissions of Counsel on behalf of the husband, I have given</td> </tr> <tr> <td>21</td> <td>consideration to whether the wife’s conduct with respect to these disclosure issues</td> </tr> <tr> <td>22</td> <td>constitute special circumstances in the sense discussed in the case of Gojovic v. Gojovic</td> </tr> <tr> <td>23</td> <td>suchuld either be</td> <td>costs in whol</td> <td>of the hudej</td> </tr> <tr> <td>24</td> <td>pay the cusb.</td> </tr> <tr> <td>25</td> <td>that she sho required</td> <td>her ce or in part. ost</td> <td>prived of</td> <td>and or be</td> </tr> </table> Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 19 of 23
In my view the husband created the confusion in the first place and the onus was on him to clarify the situation. He ought not to be seeking recompense for clarifying the confusion that he himself caused. I would decline his application for costs but do not consider that the wife should be entitled to the entirety of her costs on this issue.
I considered whether the cutoff date should be from 2014 as highlighted by the husband but it was not unreasonable in light of the lack of clarity, for the wife to have sought some input from an independent person. I also considered whether the cutoff date of 17th June 2016, the date of the Affidavit of LN should be utilised. However the offer having been extended in that Affidavit, it was not unreasonable to seek to examine/inspect the documents as offered. In so far as there were costs attendant on the invited examination, it is difficult to see the basis for exclusion of these. However to have persisted beyond February 2019 stretches the boundaries of reasonableness. I would accept the submission of the husband to the extent that the wife’s costs on this issue, are limited to costs incurred up to February 2019.
I accept the submissions of the husband with respect to costs for resolution and amendment of the Petition.
The costs awarded to the wife on this hearing therefore exclude the following: a. costs which have already been covered by cost orders previously made as outlined above. b. costs incurred after February 2019 with interest in the amount of $1,000.00. c. costs in relation to the resolution and amendment of the Petition. ``` This transcription accurately reflects the content of the document, including the legal context and the specific points made in the judgment.
```markdown # PAYMENT ON ACCOUNT
With respect to the wife’s application for an interim payment, the general principles are agreed. I am guided by the principles detailed above in the cases of Mars UK. v. Teknowledge Ltd. and Riad Tawfiq Al Sadik. The circumstances of the present case would allow for the exercise of a discretion in line with the principles detailed therein. The financially stronger party in this case wishes to exercise his right of appeal. The wife will need funds in order to respond. As the learned Judge stated in the latter case, the purpose of the rule as to interim payments is to enable the Court to avoid the injustice of delayed payments of all costs until the total amount is determined, through a summary partial assessment. In the exercise of my discretion I consider that it is appropriate in this case that a payment on account be ordered.
The husband submits that payment of any sum would have a bearing on the final form of the order in respect of the payment of the lump sum over a period of months and that more time would be needed to pay, perhaps six months if ordered to pay costs. The wife submits that it would be unreasonable to allow a further time period and that twelve months would be too long a period.
The husband’s monthly income is some $62,866.00 per month. He has the asset base and resources to meet an interim order of costs. To give any extended time to pay would defeat the purpose of a payment on account.
Exclost for the , which is challenged and the cExpert’s repnd which is of about the port post 24 February 2019, a rough estint of h appear to fall within the period during which no previous cost orders were made, this would amount to approximately CI$94,288.47.00. ``` ```html <table> <tr> <td>1</td> <td>49.</td> <td>With respect to the wife’s application for an interim payment, the general principles are agreed. I am guided by the principles detailed above in the cases of Mars UK. v. Teknowledge Ltd. and Riad Tawfiq Al Sadik. The circumstances of the present case would allow for the exercise of a discretion in line with the principles detailed therein. The financially stronger party in this case wishes to exercise his right of appeal. The wife will need funds in order to respond. As the learned Judge stated in the latter case, the purpose of the rule as to interim payments is to enable the Court to avoid the injustice of delayed payments of all costs until the total amount is determined, through a summary partial assessment. In the exercise of my discretion I consider that it is appropriate in this case that a payment on account be ordered.</td> </tr> <tr> <td>50.</td> <td>The husband submits that payment of any sum would have a bearing on the final form of the order in respect of the payment of the lump sum over a period of months and that more time would be needed to pay, perhaps six months if ordered to pay costs. The wife submits that it would be unreasonable to allow a further time period and that twelve months would be too long a period.</td> </tr> <tr> <td>51.</td> <td>The husband’s monthly income is some $62,866.00 per month. He has the asset base and resources to meet an interim order of costs. To give any extended time to pay would defeat the purpose of a payment on account.</td> </tr> <tr> <td>52.</td> <td>Exclost for the , which is challenged and the cExpert’s repnd which is of about the port post 24 February 2019, a rough estint of h appear to fall within the period during which no previous cost orders were made, this would amount to approximately CI$94,288.47.00.</td> </tr> </table> ``` ```latex \section{PAYMENT ON ACCOUNT} \begin{enumerate} \item With respect to the wife’s application for an interim payment, the general principles are agreed. I am guided by the principles detailed above in the cases of Mars UK. v. Teknowledge Ltd. and Riad Tawfiq Al Sadik. The circumstances of the present case would allow for the exercise of a discretion in line with the principles detailed therein. The financially stronger party in this case wishes to exercise his right of appeal. The wife will need funds in order to respond. As the learned Judge stated in the latter case, the purpose of the rule as to interim payments is to enable the Court to avoid the injustice of delayed payments of all costs until the total amount is determined, through a summary partial assessment. In the exercise of my discretion I consider that it is appropriate in this case that a payment on account be ordered. \item The husband submits that payment of any sum would have a bearing on the final form of the order in respect of the payment of the lump sum over a period of months and that more time would be needed to pay, perhaps six months if ordered to pay costs. The wife submits that it would be unreasonable to allow a further time period and that twelve months would be too long a period. \item The husband’s monthly income is some $62,866.00 per month. He has the asset base and resources to meet an interim order of costs. To give any extended time to pay would defeat the purpose of a payment on account. \item Exclost for the , which is challenged and the cExpert’s repnd which is of about the port post 24 February 2019, a rough estint of h appear to fall within the period during which no previous cost orders were made, this would amount to approximately CI$94,288.47.00. \end{enumerate}
On making allowance for the possibility of reduction in the taxation process, I would consider that the amount on account should be conservatively no more than 70% or CI$66,001.92.
Costs are awarded to the wife on the standard basis to be taxed if not agreed subject to the exclusions identified above. An interim payment on account of CI$66,001.92 should be made by the husband to the wife. This should be paid within 14 days of the date of this Order. ### COSTS IN RELATION TO THE APPLICATION
In respect of costs attendant upon this application, Counsel on behalf of the husband submitted that given the partial success of both parties, either there should be no order for costs or there should be a limited order for costs. Counsel noted that: i. The wife’s position at the costs hearing was that the costs of the entire proceedings should be awarded in her favour with an interim order sought of CI$95,000. ii. Costs were disallowed, in particular those in relation to the Petition and discovery since February 2019. iii. An interim costs order of a lesser amount was made;
Counsel on behalf of the wife submitted that in view of the wife’s success in her application for costs and that the costs of the hearing of the 16th September 2019 should simply be included in the taxation of the costs of the action. ``` ```html <table> <tr> <td>53.</td> <td>On making allowance for the possibility of reduction in the taxation process, I would consider that the amount on account should be conservatively no more than 70% or CI$66,001.92.</td> </tr> <tr> <td>54.</td> <td>Costs are awarded to the wife on the standard basis to be taxed if not agreed subject to the exclusions identified above. An interim payment on account of CI$66,001.92 should be made by the husband to the wife. This should be paid within 14 days of the date of this Order.</td> </tr> <tr> <td>55.</td> <td>In respect of costs attendant upon this application, Counsel on behalf of the husband submitted that given the partial success of both parties, either there should be no order for costs or there should be a limited order for costs. Counsel noted that:</td> </tr> <tr> <td>i.</td> <td>The wife’s position at the costs hearing was that the costs of the entire proceedings should be awarded in her favour with an interim order sought of CI$95,000.</td> </tr> <tr> <td>ii.</td> <td>Costs were disallowed, in particular those in relation to the Petition and discovery since February 2019.</td> </tr> <tr> <td>iii.</td> <td>An interim costs order of a lesser amount was made;</td> </tr> <tr> <td>56.</td> <td>Counsel on behalf of the wife submitted that in view of the wife’s success in her application for costs and that the costs of the hearing of the 16th September 2019 should simply be included in the taxation of the costs of the action.</td> </tr> </table> ``` ```latex \section{53.} On making allowance for the possibility of reduction in the taxation process, I would consider that the amount on account should be conservatively no more than 70\% or CI\$66,001.92. \section{54.} Costs are awarded to the wife on the standard basis to be taxed if not agreed subject to the exclusions identified above. An interim payment on account of CI\$66,001.92 should be made by the husband to the wife. This should be paid within 14 days of the date of this Order. \section{COSTS IN RELATION TO THE APPLICATION} \section{55.} In respect of costs attendant upon this application, Counsel on behalf of the husband submitted that given the partial success of both parties, either there should be no order for costs or there should be a limited order for costs. Counsel noted that: \subsection{i.} The wife’s position at the costs hearing was that the costs of the entire proceedings should be awarded in her favour with an interim order sought of CI\$95,000. \subsection{ii.} Costs were disallowed, in particular those in relation to the Petition and discovery since February 2019. \subsection{iii.} An interim costs order of a lesser amount was made; \section{56.} Counsel on behalf of the wife submitted that in view of the wife’s success in her application for costs and that the costs of the hearing of the 16th September 2019 should simply be included in the taxation of the costs of the action. ```
```html <table> <tr> <td>57.</td> <td>I accept the submissions of the husband on this aspect. Given the partial success of the</td> </tr> <tr> <td>2</td> <td>wife, the husband should pay 50 % of her costs in respect of this application.</td> </tr> <tr> <td>4</td> <td>Dated this the 14th day of February 2020</td> </tr> <tr> <td>7</td> <td>Honourable Justice Cheryll Richards Q.C.</td> </tr> <tr> <td>8</td> <td>Judge of the Grand Court</td> </tr> </table> ``` ```latex \textbf{57.} I accept the submissions of the husband on this aspect. Given the partial success of the wife, the husband should pay 50 % of her costs in respect of this application. \textbf{4} Dated this the 14th day of February 2020 \textbf{7} Honourable Justice Cheryll Richards Q.C. \textbf{8} Judge of the Grand Court