Nowotinik v Nowotnik
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 26 July 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0726-5 |
| Court | Court of Appeal |
| Date | 26 July 1965 |
[1965] EWCA Civ J0726-5
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Faulks
The Master of the Rolls
(Lord Denning)
Lord Justice Sellers
Lord Justice Willmer
Lord Justice Harman and
Lord Justice Davies
MR. ROBIN DUNN, Q. C. and MR. BASIL GARLAND (instructed by Miss E. E, Spicer) appeared as Counsel for the Appellant, the Area Secretary, Legal Aid.
MR. RAYMOND SEARS (instructed by Messrs Reginald Johnson & Co., Hayes, Middlesex) appeared as Counsel for the Respondent (Husband).
The Judgment which I am about to read is the Judgment of the Court.
Mr. and Mrs. Nowotnik were married on 29th November, 1947, and have one son, now aged 16. They lived at 16, morgans Lane, Hayes End, Middlesex, in which they had a joint interest with two others. On 13th June, 1962, whilst they were still living in the house, the wife brought a petition for divorce against her husband charging him with cruelty. On 25th October, 1962, he put in an answer denying the charge. On 13th November, 1962, she obtained a legal aid certificate "to carry on a divorce suit". Her disposable income was assessed at £153 per annum: and her disposable capital at £88. She was not required to make any contribution towards the costs. In September 1963 they sold the house in which they lived. Each of them received £720. 19s.11d. out of the proceeds. The wife used the money to buy another house jointly with her mother. The husband went to live in a caravan. On 30th December, 1963, the wife lodged a supplemental petition charging the husband with adultery with a named woman. (This was done without reference to the Legal Aid Committee). On 18th March, 1964, the husband put in an answer denying adultery. The suit was heard by Mr. Justice Faulks on 3rd and 4th February, 1965. He dismissed the wife's petition. He made it clear that in his opinion the wife's charge of adultery was quite unfounded: and he said enough to lead the husband's counsel to apply for an order that the wife should pay the husband's costs. Seeing that the wife was legally aided, she was recalled so that the Judge could ascertain, under Section 2(2)(e) of the Legal Aid Act, 1949, what would be a reasonable amount to order her to pay by way of costs. Upon enquiry it appeared to the Judge that the wife was then without means and he made no order for costs against her. Counsel for the husband then applied for an order that his costs should be paid out of the Legal Aid Fund under the Legal Aid Act, 1964. The procedure was not at firstunderstood, but after a little while the Regulations (1964 N. 1276) were produced and in accordance with them the application was adjourned so that the husband could swear an affidavit of costs and resources. This he did. It disclosed this positions:
The costs incurred by the husband to his solicitors in respect of the divorce action were estimated to come to £345. 18s.6d. The resources of the husband were these:
Income: Net pay from his work (after deduction of tax) of about £24 a week. Pension from West German Government of £4. 2s.0d. a month. Prior to the dismissal of the divorce petition, his outgoings were £2l. 8s.0d. This included alimony payable to the wife. After the wife lost the suit, alimony was not payable. His outgoings were then £14. 5s.0d. a week.
Capital: On 17th September, 1963, he received £720. 19s.11d., his share of the house. He had also a Ford Consul car on hire-purchase. Out of his capital he had paid £280 to his solicitor in part payment of costs. He had had two holidays in Germany costing £70 and £60 respectively. He had a paid, he said a deposit on the Ford Consul car of £185. And other expenses. He had only £5. 17s.9d. left.
It appears, therefore, that he still owes his solicitor £65. 18s.6d. To this is to be added £25, the costs of the application, making some £90. 18s.6d. in all. Mr. Justice Faulks held that the husband would suffer severe financial hardship if he were to have to pay his own costs. He thought that the conditions of the 1964 Act were fulfilled, and he made an order that the husband be paid four-fifths of his costs by the No. 1 (London) Legal Aid Area. (The reason he did not order the whole was because the wife did not have legal aid from the outset of the suit, but only after pleadings closed, see Section 2(5) of the 1964 Act). The Law Society appeal to this Court; and, as this is the first case under the new Act and it is desirable to obtain a ruling on several pointsThere under, the law Society have agreed to pay the costs of both sides.
The long title to the Act says that its object is "to provide for the payment out of the Legal Aid Fund of costs incurred by successful opponents of legally aided litigants". It might be thought that the Act would confer a wide measure of support for unassisted persons. But the Act lays down several conditions which impose considerable limitations on the extent of the support.
The first condition is that the proceedings must have been instituted by the party receiving legal aid, see Section l(3)(a). That condition is satisfied here. The wife instituted proceedings for divorce, originally without aid, but later received aid.
The second condition is that the proceedings must have been finally decided in favour of the unassisted party, see Sectionsl(l) and 2(3). This, too, was satisfied. The husband won the case. The wife did not appeal.
The third condition is that the Court must consider what order should be made for costs against the party receiving legal aid, and for determining his liability in respect of such costs, see Section 1(2) second half. This, too, was satisfied. The Judge considered the liability of the wife for costs. She was recalled especially so that he could ascertain, pursuant to Section 2(2)(e) of the 1949 Act, what would be a reasonable amount for her to pay. As she was then without means, he made no order for costs against her. In other words, he determined that her liability for costs should be put at nothing.
The fourth condition is that, apart from the Legal Aid Acts, 1949 and 1964, an order would have been made for the payment of the costs of the unassisted person, see Section 1(4). In other words, if, before 1949, no order would have been made against the wife for the payment of the husband's costs, then an order is not to be made against the Legal AidFund. The Law Society gave two reasons for saying that no order would have been made against the wife here:—
(i)The Law Society said that, for technical reasons, no order for costs would have been made against the wife. The husband in his answer had prayed that the wife's petition should be dismissed, but he had not asked for costs. He had merely prayed for "such further or other relief as may be just". It was said that, in the absence of any specific prayer by the husband for costs, no order would have been made in his favour against the wife for costs. We were referred in this regard to the patrimonial Causes Rules 4(4) and 17(8) and a practice direction by Mr. Justice Hodson (as he then was) in 1949 Weekly Notes, p. 334. We do not think this contention is sound. We can well understand that a petitioner who seeks costs against a respondent must claim costs specifically, in case the suit goes undefended. But we see no reason why a respondent should have to claim costs in specific terms. The rules are not mandatory, but only directory. In any case an amendment so as to pray for costs could be made at any time, even at the last moment, and would no doubt be granted. So there is nothing in this technical point.
(ii)The law Society said that before 1949 no order would have been made against the wife for costs, for this simple reasons:- It was not the...
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