Wozniak v Wozniak
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE HODSON |
| Judgment Date | 15 April 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0415-5 |
| Date | 15 April 1953 |
| Court | Court of Appeal |
[1953] EWCA Civ J0415-5
In The Supreme Court of Judicature
Court of Appeal
(Divorce)
Lord Justice Denning
Lord Justice Hodson and
Lord Justice Lloyd-Jacob
MR GEORGE L. S. DOBRY (instructed by Messrs George & George) appeared as Counsel on behalf of the Respondent Husband (Appellant).
MR STEPHEN STEWARD (instructed by Messrs W B. Blackwell & Company) appeared as Counsel on behalf of the Petitioner Wife (Respondent).
In this case both husband and wife are assisted persons under the Legal Aid Scheme. On the 25th September, 1951, the wife launched a Petition for divorce against her husband. The husband's advisers applied for Further Particulars of the Petition; and an Order was made for Further Particulars to be delivered by her. The Particulars that were delivered were not considered satisfactory, and an application was made thereupon by the husband's advisers asking that thePetitioner herself should be attached — that is sent to prison — for failing to deliver proper Particulars. That application came before Mr Justice Karminski, and he held — and it is not now challenged — that the application was completely misconceived and ought never to have been made. There upon he ordered the husband to pay the costs of the application, and he assessed them at £10 to be paid forthwith. The question is whether the Judge had power to make that order having regard to the fact that the husband was a legally assisted person.
The matter depends entirely on the interpretation of the Legal Aid and Advice Act, 1949, and the Regulations made there under. Section 2(2) (e) contemplates that an order for costs can be made against an assisted person, but it draws a distinction between an order for costs on the one hand and the amount that has to be paid on the other. The amount has to be determined in accordance with the Regulations: and Regulation 17(1) says specifically: "Where an order for costs is made against an assisted person the determination of the amount of 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 be final". I see no point whatever in the words "at the trial or hearing" unless they mean the final determination of the matter. They do not include preliminary applications. They do not include the application for attachment in this case. The Judge had therefore no power to assess the sum at £10 as he did.
Mr Justice Karminski was impressed by the definition section of the Act, section 17, which defines a matrimonial cause as meaning "proceedings in the House of Lords or Supreme Court in or in connection with a matrimonial cause or matter within the meaning of the 1925 Judicature Act". He thought that the words "in connection with a matrimonial cause or matter" gave him the jurisdictionwhich was asked of him. In my judgment, that is erroneous,...
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