Edwards v Edwards
| Jurisdiction | England & Wales |
| Date | 1958 |
| Court | Probate, Divorce and Admiralty Division |
Solicitor - Costs - Proceedings improperly continued - Personal liability of solicitor to pay costs - Position under legal aid unaltered -
Unreasonably to initiate or continue an action when it has no or substantially no chance of success may constitute conduct attracting an exercise of the jurisdiction of the court to call upon solicitors personally to pay costs which have been incurred in a suit. The mere fact that litigation fails is no reason for invoking that jurisdiction, nor is an error of judgment, nor even the mere fact that an error is of an order which constitutes or is equivalent to negligence. There must be something that amounts to a dereliction of duty. It is not, however, necessary to establish mala fides. Although the jurisdiction is one to be exercised sparingly, that cannot affect the duty of the court to protect litigants from being improperly damnified.
Generally speaking, there is no reason in principle why the fact that the solicitor is acting under a civil aid certificate should make any difference, although there might be exceptional cases where a certificate had, for example, been improperly obtained or litigation unreasonably continued.
In view of the special factors involved in proceedings under section 23 of the Matrimonial Causes Act, 1950, especially as regards the initiation of such proceedings, those who put in motion such proceedings, and not least any solicitor concerned, should be properly cautious before so doing, and should ascertain if possible beforehand from the husband the appropriate information as to his income and inescapable liabilities. To few proceedings is the axiom that it may become obvious on discovery that litigation not improperly initiated is bound to fail more applicable than those taken under this section.
A husband left the matrimonial home at the end of November, 1956. On December 11, 1956, the wife was granted a civil aid certificate to take proceedings under section 23 of the Matrimonial Causes Act, 1950, and an originating summons was issued on January 4, 1957. Although the wife was still living in the matrimonial home with the child of the parties, and was receiving certain financial benefits, no preliminary inquiries had been made of the husband's solicitors for information as to his true income and inescapable liabilities with a view to diminishing the risk of litigation proving necessary. The wife was, however, advised favourably by counsel on February 7, 1957, as regards the financial aspects, after considering an affidavit of the husband's disclosing an income of some £1,567 a year less a mortgage interest of £150, an endowment policy of £240 and upkeep of the home at £160. Orders for discovery were made and inspection took place in April, 1957. The wife's solicitors requested three copies of each of a large number of documents which were delivered on May 10, 1957, at a cost of over £64.
In May, 1957, the husband's solicitors wrote to the appropriate area committee submitting that there was on the facts no justification for the proceedings to continue. After the wife's solicitors had appeared ex parte before the area committee the certificate was allowed to remain in force.
The matter was heard upon oral evidence in October, 1957, following a last-minute conference with counsel, and after a two-day hearing the summons was dismissed:—
Held, (1) that it would be inappropriate in the present case to order the solicitors (upon whose personal honesty no imputation was made) to pay costs ab initio in view of the absence of any previously reported observations as to the propriety of making preliminary inquiries before issuing an originating summons in a case of this nature, and in view of the solicitors' ignorance at that stage of the husband's true financial position.
(2) That once there had been discovery, however, it should have become obvious that the wife would be unable to establish her case of wilful neglect to maintain as at the date of her summons (whatever effect any later change in financial arrangements might have had in any subsequent proceedings), and the solicitors should, accordingly, pay to the husband his party and party costs as from the beginning of August, 1957, when the summons for directions was issued.
(3) That the fact that the area committee had allowed the civil aid certificate to continue after the solicitor had personally and ex parte addressed it offered him no protection against the husband's claim (whatever effect it might have had upon a legal aid taxation). Such proceedings neither were nor were they intended to constitute any sort of trial or other process affecting the rights of an opposing party.
(4) That, in the circumstances of this case, the action of the wife's solicitors in requesting such voluminous copying of documents amounted to a flagrant case of wasteful procedure, and the solicitors must pay the costs of the expenses thereby caused the husband over and above the amount found reasonable in the registrar's report.
(5) That the wife's solicitors must also pay the husband's costs relating to the application as to costs, and that it would be appropriate to reduce the costs to be allowed upon their legal aid taxation in the application.
APPLICATION as to costs against a wife's solicitors arising out of proceedings under section 23 of the Matrimonial Causes Act, 1950, in which the wife was an assisted person.
The husband and wife were married in 1946 in Belgrade, the wife being a Yugoslav by birth. There was one child of the marriage, a girl, born in September, 1954. In 1955 the husband acquired a matrimonial home, purchasing the freehold by aid of mortgage and upon the footing that he took out an endowment insurance policy. There he lived with his wife and the child of the marriage. Whilst there the wife, who had no means of her own, received £5 10s. per week from the husband and was entitled and did charge the accounts of the husband at Messrs. Barkers and Messrs. Whiteleys for purchases averaging some £2 a week.
In September, 1956, after a quarrel during which the husband had for the first and only time spoken of closing those accounts (although he did not do so, and there was never any fear he would if they were used reasonably), the wife consulted solicitors about her marriage and, among other matters, raised that of money, telling the solicitor the kind of sums which she was charging against the accounts with the stores. The solicitor advised her to increase her purchases on those accounts: he did not suggest that she should tell her husband. In fact, she did not tell her husband but increased her charges on the accounts to sums which amounted in October, 1956, to £57, in November, 1956, to £45, and in December, 1956, to £32, an average of some £10 per week. In effect, the wife and child during the quarter ending December 31, 1956, had benefits in cash and kind to a total of some £277 out of the husband's available £400.
On October 8, 1956, the wife's solicitor had an interview with the husband. The entry on the cost sheet reads:
“attending Mr. Edwards at our office from 11 a.m. to 12.15 and discussing with him thoroughly the question of his domicile at the time of his marriage to Mrs. Edwards, when we formed “the opinion that it is almost certain that domicile is in Yugoslavia. Generally discussing the difficulties with him between him and his wife, with particular regard to maintenance, when at the end of the interview he said he would think about what we had said and would probably ask his solicitor, Mr. Kershaw, to contact us within a fortnight or so.”
The note did not refer to any suggestion having been made, or discussion having arisen, as to whether the husband might wish to confess to adultery.
The solicitor on that occasion did not tell the husband of the increased sums being charged against the accounts. The inference was drawn by the court that the wife and her solicitor were both being careful not to inform the husband about the increased charges, a policy in which they were assisted by the fact that the accounts only came in a very long time after the charges were incurred.
There was a conflict of evidence between the husband and the wife's solicitor as to what was said on October 8, 1956, and the court accepted the husband's evidence on this point. The husband, in fact, did not cause his own solicitor to get into touch with his wife's solicitor; but on October 30, 1956, he informed him by telephone that he was not prepared to admit adultery and that it was left to the wife to take what action she thought fit. The court found that it appeared that up to that time the financial issues were obviously subsidiary. Questions of the validity of the marriage and the possibilities of a divorce were matters which had loomed large. Without any further communication with the husband or the solicitor whom the husband had mentioned, there was forwarded to the legal aid committee on November 6, 1956, an application by the wife for legal aid in section 23 proceedings. At the end of November, 1956, the husband left the matrimonial home. On December 11, 1956, a civil aid certificate was granted to the wife. On December 13, 1956, without further inquiry, the wife's solicitors wrote to Messrs. Kershaw a letter which contained this paragraph:
“We believe that you have been told that our...
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