McDonnell v McDonnell

A point has arisen on the drafting of the schedule to the order. On the last occasion Lord Justice Stamp suggested that it should be prepared by the parties and handed in. She question which has arisen under clause 2 of the schedule is what was intended to happen in the event that the house, 3, Love Walk, was sold some time during the trust period and the proceeds of sale were larger than were needed to buy a substitute house for the wife and the children. Was the whole income from that surplus to be paid to the wife or was it to be paid in equal shares to the husband and wife.

It is difficult, of course, to remember what one had in mind when one has to resort to a transcript which perhaps raises as many problems of construction as any document I have seen; and it is, therefore, not very easy to deal with. But one thing I can say safely, I am sure, is that I was concerned to provide a roof over these children's heads primarily and also the wife's, who has custody of the children, to ensure that there was a home for these children until they grew up and left. I am sure I was not thinking in terms of some kind of secure maintenance provision for the wife, but possibly I or Lord Justice Stamp may have used various phrases in the course of discussion on the form of the order, but speaking for myself I do not think that this court intended to provide some form of secure provision for the wife. Therefore I am against Mr. Thorp's submission, and in my view the trust should operate so that any surplus income should be divided equally between the parties if and when there is a surplus. So I would resolve that question in favour of Mr. Laurie's submission. On the dispute about the drafting of clause 6, I would take the other view and decide in favour of Mr. Thorp's client.

I agree. It is extremely difficult aftersome months to remember exactly what was said in discussion after judgment, but my recollection corresponds with that of Lord Justice Ormrod; hut it is I think, still open to us to say what we think the right order should ha today.

Mr. Laurie, would you please incorporate the amendments in the final draft and bring it in.

( Submissions with regard to costs followed)

Monday, 12th April, 1976.

On the 11th February, 1976, having allowed in part the appellant husband's appeal from an order of Mrs. Justice Lane made on the 12th November, 1975, the court adjourned all questions of costs to enable the husband to apply for an order under section 13 of the Legal Aid Act, 1974 that his costs, in whole or in part, should be paid out of the legal aid fund or by the respondent wife who was legally-aided on the appeal. She court invited the Law Society to appear by counsel when these applications came on for hearing, and in consequence we have had the advantage of hearing Mr. Mathieson in addition to counsel on both sides and are grateful to them all for their assistance.

Mr. Laurie, who appears for the husband, who is an "unassisted party", now applies for an order that his costs of the appeal should be paid either by the wife or by the legal aid fund, or partly by one and partly by the other. In this case, although the wife has a relatively small legal aid contribution, she is not without resources, or so it is submitted, because as part of the order of this court she will receive a lump sum of £2,000, and retains her half share in the house where she is living, 3, Love Walk, London, S. E.5.

The first question, therefore, is whether any order for costs should be made against the wife. Since there is also anapplication under section 13, this must be dealt with in two stages, and not as is the usual practice in one. The first stage is to decide whether on the merits the wife should be ordered to pay the whole or any part of the husband's costs; the second is to "determine her liability" in respect of such costs as it is decided ought to be borne by her. That is a reference to section 8(1)(e) under which her liability under an order for costs is limit ad, in terms of amount, to such sum as is a reasonable one for her to pay having regard, inter alia, to her means.

This two-stage operation is made necessary by subsection (4) of section 15 which provides that no order for costs to be paid out of the legal aid fund shall be made unless an order would have been made against the unsuccessful party, "apart from this Act", that is, on the merits, in litigation between parties paying their own costs, and without the protection provided by section 8(1)(e). In many cases the means of the assisted party are insufficient to pay anything by way of costs. In such cases, the usual phrase "No order as to costs" is ambiguous; it may mean that it would be unjust that the successful party should recover his costs or that the unsuccessful party's means are such that it would not be reasonable to expect him to pay anything towards the other side's costs. This is the distinction between making no order as to costs and assessing the assisted party's...