Sullivan v Sullivan

• Jurisdiction: Ireland
• Judge: K. B. Div.,Mat.,Appeal.
• Judgment Date: 13 June 1911
• Court: Court of Appeal (Ireland)
• Date: 13 June 1911

Sullivan

and

Sullivan (1).

K. B. Div.

Mat.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1912.

Husband and wife — Divorce proceedings — Costs of wife's solicitor — Compromise — Separate estate — Judgment against wife a bar to subsequeut claim against husband.

Held, by Madden, J., that the application should be refused, on the ground that there was evidence that the wife had separate estate, and that the solicitors looked to it for payment.

Held, by the Court of Appeal, that the judgment obtained against the wife was a bar to any claim against the husband.

Priestly v. Fernie (3 H. & C. 977) followed, and applied to the case of a debt incurred by a wife as agent for her husband.

Motion on behalf of Messrs. O'Keeffe and Lynch, solicitors, for an order that the respondent, Patrick Donald Sullivan, be ordered to pay them the sum of £110 9s. 9d. as and for the costs necessarily and properly incurred by them for, and on behalf of, the petitioner, and by her instructions and authority, in prosecuting the proceedings herein, on the grounds that, prior to the ultimate determination of the said proceedings, the respondent induced and influenced the petitioner to enter into an arrangement with him behind the backs of the said solicitors, and without their knowledge or approval, for the settlement of the differences between them, whereby the respondent induced the petitioner to return to cohabitation with him solely for the purpose and with the intention of endeavouring to defeat the claim of the said solicitors to payment of the said costs, and for the purpose of fraudulently evading payment thereof; or, in the alternative, that the said Messrs. O'Keeffe and Lynch may be permitted to proceed with

the trial of this suit for the purpose of recovering the costs to which they are entitled as solicitors for the petitioner.

The circumstances which led up to this application may be shortly stated as follows: On the 3rd March, 1909, a petition was filed by Mrs. Sullivan, seeking a divorce a mensa et thoro from her husband. Messrs. O'Keeffe and Lynch, solicitors, of the city of Cork, were the solicitors for Mrs. Sullivan. No application was made in the proceedings for an order for payment of the petitioner's costs de die in diem. An answer was filed on the 15th May, 1909, and efforts at a settlement out of Court having been made, it was agreed to enter into a separation deed, and the terms of the deed (if differences arose about them) and all incidental matters in controversy were to be left to the arbitration of the present Attorney-General (then Mr. C. A. O'Connor, K.C.). The award, subsequently made, provided inter alia that the respondent was to indemnify the petitioner against the costs of the divorce proceedings, estimated at £60; and certain chattels, furniture, &c., the value of which was not specified, were declared to be the petitioner's separate property. The respondent, however, refused to execute a deed drawn in pursuance of the award. While a correspondence was in progress between the solicitors for the respective parties, on, as applicants alleged, the petitioner's instructions, they received a letter from their client, dated the 8th September, 1909, stating that she was reconciled to her husband, was cohabiting with him, and that the award and deed might be torn up. Thereupon Messrs. O'Keeffe and Lynch served the petitioner with the bill of costs, brought an action for them against her and obtained judgment for the amount of the bill, £118 4s. 3d., on the 11th January, 1910. A writ of fi. fa. was issued, but a return was made of nulla bona, the furniture mentioned in the award, which was the only property available for seizure under the writ, being claimed by the respondent, and nothing was realized on foot of the judgment. Further and more amplified details of the case will be found in the judgment of Madden, J.

The counsel for the applicants having intimated that they could not rely on fraud on the part of the respondent, which was not proved by any of the affidavits filed on behalf of their clients, was proceeding to argue the case on the general and established practice of the Court in such cases to protect a solicitor from losing his costs properly incurred on behalf of one of the parties to a properly constituted action (especially in the case of a wife suing for a divorce) by reason of any compromise, when the learned Judge suggested that what the respondent came prepared to meet was a charge of fraud, and that, when this charge was abandoned, it would be only fair to give him an opportunity of offering further evidence if so advised. Accordingly, the hearing of the motion was adjourned; and further affidavits were filed, the substance and effect of which are stated by Mr. Justice Madden.

Where a divorce suit in which the wife was petitioner was settled without notice to her solicitors, who thereupon brought an action against her in which they recovered judgment, upon foot of which nothing was realized, and they afterwards applied for an order that the respondent, the husband, should pay them the wife's costs:—

The Right Hon. J. H. Campbell, K.C., and The Hon.Cecil Atkinson, for the applicants, Messrs. O'Keeffe and Lynch

Serjeant Moriarty, K.C., and P. A. O'C. White, for the respondent.

Madden, J.:—

This is an application on behalf of Messrs. O'Keeffe and Lynch, the solicitors for the petitioner, that the respondent should be ordered to pay to them the sum of £110 9s. 9d., as the costs incurred by them on behalf of the petitioner in prosecuting the proceeding in this matter. The petition, which prayed for a divorce a mensa et thoro, was filed on the 3rd of March, 1909. Before and after the filing of the petition efforts were made by the petitioner's solicitors to bring about an amicable settlement of the case. They had no immediate result; and on the 19th of April, 1909, a summons to fix the time and mode of trial was issued on the part of the petitioner. A notice of motion for alimony pendente lite was served for the 3rd of May, but no application was made for the usual order for taxation and payment of the petitioner's costs. An answer was filed on the 15th of May. Further negotiations, into the details of which I need not enter, resulted in the signature of a consent on the 24th of May, 1909, by which the parties mutually agreed to enter into a deed of separation, the terms of which were to be settled by arbitration, the present Solicitor-General having been appointed as arbitrator.

The submission deals in detail with a number of matters relating to the custody and education of the children of the marriage, and contains the following clause:— “All existing liabilities of a joint and several nature of the said parties to be finally adjusted between them according to their legal rights.” A deed of separation was to be executed, the terms of which were to be settled by the arbitrator, except in so far as they were defined by the specific provisions of his award. The arbitrator made his award on the 29th of July, 1909. It contains carefully prepared provisions relating to the custody and education of the children of the marriage. The provisions of the award dealing with questions of property are substantially as follows:—The petitioner was to support and maintain herself out of her separate estate. The respondent was to indemnify the petitioner against certain debts and...