E.L. v S.K.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 13 July 2012 |
| Neutral Citation | [2012] IEHC 617 |
| Court | High Court |
| Date | 13 July 2012 |
[2012] IEHC 617
THE HIGH COURT
BETWEEN
AND
RSC O.70 r75
RSC O.29
RSC O.99 r10.3
SHELL E & P IRELAND LTD v MCGRATH & ORS (NO 3) 2007 4 IR 277 2007/55/11859 2007 IEHC 144
Family – The Family Law Reform Act, 1989 – The Family Law Act, 1995 – O. 29 of the Rules of the Superior Courts – O. 70, r. 75 of the Rule of the Superior Courts – Costs order on a solicitor and client basis – Costs order on a party and party basis – Whether cost could be awarded on the higher standard of solicitor and client basis.
Facts: Following a petition for judicial separation filed by the respondent in an earlier proceeding, the petitioner in the present proceeding filed for a decree of nullity of the marriage claiming absence of consummation of the marriage, being an unwilling participant in the faith ceremony, and forced cohabitation by the respondent. Subsequently, the proceedings seeking judicial separation were stayed pending the outcome of the nullity proceedings. The respondent by notice of motion now sought for security for costs on a solicitor and client basis seeking an order pursuant to o. 29 of the Rules of the Superior Courts. The respondent further sought an order under o. 70, r. 75 of the Rule of the Superior Courts for costs de die in diem.
Mr. Justice Henry Abbott held that the applications under o. 29 and o. 70, r. 75 of the Rules of the Superior Courts would be granted. The Court decided that the respondent would be awarded costs on a party and party basis. The Court held that the petitioner would not be held liable for misconduct in absence of pursued oral hearing. The Court held that the petitioner lacked a reasonable chance of success in the petition as the petitioner had misled the expert by incorrect statements.
JUDGMENT of Mr. Justice Henry Abbott delivered on the 13th day of July, 2012
1. This judgment relates to an application by the respondent in these proceedings for costs to be awarded to her on a solicitor and client basis in respect of the costs of the above entitled nullity proceedings brought by the petitioner in respect of the marriage of the parties.
2. The background of the case is as follows. The respondent initiated judicial separation proceedings against the petitioner. In response the petitioner initiated nullity proceedings and brought an application before this Court to have the judicial separation proceedings stayed until such time as his petition for a decree of nullity had been determined. Such petition was grounded not on the affidavit of the petitioner but on the affidavit of the petitioner's solicitor. In that affidavit the petitioner's solicitor deposed (among other averments) that she said and believed "that in his substantive replying affidavit, which was sworn on the 19 th June, 2009, my client articulated a concern that the ceremony of marriage which he underwent did not give rise to a true marriage having regard to certain factors which he enumerated therein" and continued that she said and believed that since "swearing that affidavit my client has sought professional medical advice concerning the psychological and emotional circumstances which prevailed when he agreed to and underwent the ceremony of marriage with the applicant. In the course of those investigations it emerged that in addition to the issues relating to consent and the ability of the parties to enter into performance sustained a normal marital relationship of one another, the parties have not had sexual intercourse with one another at any time, since they went through the ceremony of marriage. Accordingly, an issue of nonconsummation also arose".
3. These allegations summarise the case of the petitioner in relation to the nullity of the marriage and they were denied and analysed fulsomely by the respondent in her affidavits. On foot of the petitioner's application the judicial separation proceedings were stayed, notwithstanding rigorous opposition by the respondent. The respondent subsequently, by notice of motion dated the 10 th November, 2010, sought an order pursuant to 0. 70, r. 75 of the Rules of the Superior Courts directing the petitioner to pay the respondent her costs de die in diem or alternatively an order for costs pursuant to O. 29 of the Rules of the Superior Courts providing for security of the respondent's costs in the above entitled proceedings. The application for security for costs was refused under both headings.
4. The nullity petition then proceeded and a medical expert was appointed to examine the parties in accordance with the usual procedure to report to the court in relation to the capacity of the parties to contract a valid marriage.
5. The expert reported and the petition came on for hearing on the 21 st March, 2011. Having called the case as going on, the senior counsel for the petitioner informed the court some minutes later that, having had an opportunity to discuss the overall situation with his client and in the light of the reports of the medical expert which had only become available on the previous Friday, his client (the petitioner) would withdraw his petition.
6. Senior counsel for the respondent expressed dismay and applied for costs to be awarded to the respondent not on a party and party basis but on the higher standard of solicitor and client.
7. Senior counsel for the respondent had a richness of material from which to base his argument that he was entitled to claim his costs on a higher basis essentially because the petitioner's intervention into the judicial separation proceedings, with his application for a stay pending the disposal of the nullity proceedings, was an unjustifiable interference by the petitioner in the separation proceedings before the court which greatly impinged on the rights of the respondent and which sought to create a record of untruth which were gravely offensive to her. He sought to rely on the wealth...
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