Gooday v Gooday
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK,LORD JUSTICE WIDGERY |
| Judgment Date | 16 July 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0716-3 |
| Docket Number | 1966. (D) No. 316. |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 1968 |
[1968] EWCA Civ J0716-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Park J. Exeter Assizes 18th January, 1968.
Revised
Lord Justice Willmer,
Lord Justice Diplock and
Lord Justice Widgery.
Mr. J. Grove Hull (instructed by Messrs Lucien A. Isaacs & Co., Agents for Mr Arthur Goldberg, Plymouth) appeared on behalf of the Appellant (Petitioner).
Mr Arthur L. Mildon (instructed by Messrs Bower Cotton & Bower, Agents for Messrs Bond, Pearce, Elliott & Knape) appeared on behalf of the Respondent.
I have asked Lord Justice Diplock to deliver the judgment.
This is an appeal by leave of the learned judge from an order which he made upon the dismissal of the divorce petition by a legally aided wife whereby he ordered that the petitioner should pay £200 towards the respondent's costs, that £50 of that sum should be paid forthwith, and that the balance of £150 should be paid at the rate of £7 a month. The learned judge made that order after an inquiry into the means of the unsuccessful wife petitioner, to which I shall have to refer shortly.
The appeal before this court is based upon two grounds. First, it is said that no order for costs should be made against the wife at all because of a settled practice of the court not to award costs against unsuccessful wife petitioners. The second ground of attack upon the order is that the amount awardedby the learned judge was unreasonable having regard to the provisions of section 2, subsection (2), paragraph (e) of the Legal Aid and Advice Act 1949. So far as the first ground is concerned, I do not accept that in the 1960's there should be any settled practice peculiar to the Divorce Division from which learned judges are not entitled to depart. In my view their discretion as to costs, a statutory discretion conferred upon them by section 50, subsection (1) of the Judicature Act of 1925, is as broad in the case of the matrimonial jurisdiction of the court as in the ordinary jurisdiction. No doubt in the old days before the Married Women's Property Act, and indeed before the Institution of legal aid in civil cases in 1950, such a general practice was one of commonsense, because a wife normally would not have the separate means to meet an order for costs against her. But today, where the spouses in the case of many married couples are equally capable of earning their own living, and equally likely to have a joint interest in property or to own property of their own, I can see no rational grounds for saying that there should continue to be a settled practice without regard to the Individual features of each case. As I say, I think that the learned judge had a discretion, the statutory discretion given to him by the Act of 1925. Where he has such a discretion (and at the moment I am dealing only with the order for costs made against the wife, and not with the quantum) this court's jurisdiction to interfere with the exercise of that discretion is a very limited one, as laid down by Lord Sterndale in Ritter v. Godfrey and cited by Lord Gave in Campbell v. Pollak, and again repeated with approval by Lord Justice Bucknill in Barker v. Barker: "If there be any grounds on which to exercise his discretion the question of whether they are sufficient is entirely for the judge at the trial, and this court cannot interfere with his discretion"
It is quite apparent from the learned judge's observations, when the order for costs was being considered, that he regarded the conduct of the wife petitioner in persisting with the divorce petition when she had no grounds for doing so as being suchas made it proper for him in his discretion to make an order for costs against her. This was the submission made by Mr Mildon in the argument, and I need quote only these brief words of Mr Justice Park when he said: "I am entirely with you, but what are we going to do about it?". That, I think, sufficiently disposes of the argument that there were no grounds on which he could exercise his discretion in awarding costs against the unsuccessful wife petitioner who had brought a case of cruelty against her husband which the learned judge regarded as without foundation, and so weak that in the course of the hearing he had indicated his preliminary view that that was not the kind of evidence which amounted to plausible grounds for a successful petition. So much for the first point argued by Mr Hull.
The second point arises out of the last words of the Judge which I have cited; "But what are we going to do about it?", for this was a case which was governed by the provisions of section 2, subsection (2), paragraph (e), which is as follows: "Where a person receives legal aid in connection with any proceedings…. (e) his liability by virtue of an order for costs made against him with respect to the proceedings shall not exceed the amount (If any) which is a reasonable one for him to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the disputed.
The provisions of that paragraph of the Act are expanded by regulations made by the Lord Chancellor under section 12, sub-section (1) of the Act, and in particular by Regulation 18 of the Legal Aid (General) Regulations 1962. That provides, so far as is relevant, as follows: "(1) Where an order for coats is made against an assisted person, the determination of the amount of his liability for costs in accordance with section 2 (2) (e) of the Act shall be made at the trial or hearing of the action, cause or matter", and then follows a proviso that is not relevant to this case. Paragraph 2: "In determining the amount of the assisted person's liability (a) his dwelling-house and household furniture and the toolsand implements of his trade shall be left out of account to the like extent as they are left out of account by the Board in determining his disposable Income and disposable capital; and (b) any certificate, notice or affidavit which may have been filed under the provisions of Regulation 16 shall be evidence of the facts stated therein". There follows a proviso with which I am not concerned, but I pause to point out that Regulation 16 deals with the certificate which states the contribution which a litigant has been required to make towards his or her own costs.
Then paragraph 3, the most important so far as this case is concerned: "The court may direct (a) that payment under the order for costs shall be limited to such amount, payable by instalments or otherwise, Including an amount to be determined on taxation not exceeding the amount, as the court thinks reasonable having regard to all the circumstances, or (b) where the court thinks it reasonable either for payment under sub-paragraph (a) of this paragraph not to be made immediately or for the assisted person to have no liability for payment, that payment under the order for costs be suspended either until such date as the court may determine or sine die". Then I think I should read paragraph 4: "The party in whose favour the order is made may, within six years from the date thereof, apply to the court for the order to be varied on the grounds that there. has been a change in the assisted person's circumstances since the date...
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