Wstcott v Westcott
| Jurisdiction | England & Wales |
| Date | 1908 |
| Year | 1908 |
| Court | Probate, Divorce and Admiralty Division |
Divorce - Practice - Costs - King's Proctor - Unsuccessful Intervention -
The Court possesses full power, in the exercise of its judicial discretion, to condemn the King's Proctor in the costs incurred by a petitioner in resisting an intervention by the King's Proctor.
The mere fact that an intervention by the King's Proctor is reasonable will not debar a successful petitioner from applying for costs.
Each application for costs is to be considered by the light of the particular case before the Court, but the general principle is that a successful petitioner, like any other litigant who succeeds, is entitled to costs unless his or her own conduct has really brought about the intervention.
THE petitioner (wife) obtained a decree nisi for the dissolution of her marriage, and the King's Proctor subsequently intervened, alleging adultery before the date of the decree.
The jury interposed after the close of the evidence, and on counsel for the petitioner rising to sum up her case,
Counsel for the King's Proctor insisted on his right to address the jury.
SIR GORELL BARNES, PRESIDENT, said that under the circumstances it was not necessary to sum up the case. He desired, however, to point out that the King's Proctor, acting in his official capacity on the fiat of the Attorney-General, was bound to lay all the facts, as he believed them to be, before the Court; and if, as might be assumed, that duty was performed with fairness, the King's Proctor was not to be blamed if witnesses called on his behalf failed, as in the present case, to convince the jury. The intervention in this case must be dismissed.
March 6. Barnard, K.C. (Bayford with him), for the petitioner, asked for costs.
Rawlinson, K.C. (Victor Russell with him), for the King's Proctor, opposed. Where a public officer proceeds in the exercise of his duty and does not act unreasonably he should not be condemned in costs. It is, moreover, for the Court to consider in these cases how far the petitioner has by his or her conduct in any way contributed to the intervention of the King's Proctor. It is submitted that the present petitioner has to some extent brought about the intervention.
[SIR GORELL BARNES, PRESIDENT. It may be said that the King's Proctor always acts reasonably, because he acts upon the fiat of the Attorney-General.]
Barnard, K.C., in reply. There is no reason why costs should not follow the event. Under the Matrimonial Causes Act, 1878, s. 2, the Court has absolute discretion over the costs in these interventions, and the Legislature has, moreover, indicated where the money is to come from, where the King's Proctor is condemned in costs. It may be said that the King's Proctor always acts reasonably, inasmuch as he only...
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