DJ v BJ - Judgment

¶ ```html IN THE GRAND COURT OF THE CAYMAN ISLANDS GRAND COURT- FAMILY DIVISION CAYMAN ISLANDS CAUSE NO. FAM 66 OF 2014 BETWEEN: DJ PETITIONER AND: BJ RESPONDENT Appearances: Mr. Andrew Woodcock of Hampson and Company for the Petitioner Mr. Guy Dillaway-Parry of Priestleys for the Respondent Before: The Hon. Justice Cheryll Richards Q.C. Hearing: 16th September 2019 Draft Judgment Circulated: 23rd December 2019 Further Submissions: 9th January 2020 HEADNOTE Family Law - Costs in respect of Final Ancillaries JUDGMENT ```
```html 1 INTRODUCTION 2 1. This is a ruling on costs following a reserved ruling on the 5th August 2019 on the final ancillary application in this matter. 3 4 2. On the basis of the general practice in matrimonial cases, that costs follow the event, the Petitioner (the wife) seeks costs on the standard basis and payment of a sum on account for costs in the amount of CI$95,000.00. On the 16th September 2019 oral arguments were made by both parties. 5 6 3. The wife submits that the award made by the Court in its August ruling was significantly more favourable to her than the offer made by the Respondent (the husband) and that she was therefore the successful party. The husband in reply argues that neither party was entirely successful and that no award of costs should be made. 7 8 9 10 11 12 13 14 THE LEGAL POSITION 15 16 4. Section 24 of the Judicature Law (2017 Revision) provides a power to order costs in the discretion of the Court. It is inter alia in the following terms: 17 18 19 24. (1) Subject to the provisions of this or any other Law and to rules of court, the costs of and incidental to all civil proceedings in- 20 (a) the Court of Appeal; and 21 (b) the Grand 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 70
```html 1 (3) The court shall have full power to determine by whom and 2 to what extent the costs are to be paid. 3 (4) In any criminal or civil proceedings, the court may disallow 4 or (as the case may be) order the attorney-at-law or foreign 5 lawyer concerned to meet the whole of any wasted costs or 6 such part of them as may be determined in accordance with 7 the rules of court." 8 9 5. The Grand Court Rules O.62 r.4 provides, inter alia: 10 (2) The overriding objective of this Order is that a successful 11 party to any proceeding should recover from the opposing 12 party the reasonable costs incurred by him in conducting 13 that proceeding in an economical, expeditious and proper 14 manner unless otherwise ordered by the Court. 15 16 (5) If the Court in the exercise of its discretion sees fit to make 17 any order as to the costs of any proceedings, the Court shall 18 order the costs to follow the event, except when it appears 19 to the Court that in the circumstances of the case some 20 other order should be made as to the whole or any part of 21 the costs. 22 (6) The amount of the costs which a successful party shall be 23 entitled to recover from any other party is 24 (a) the fixed costs prescribed in rule 7; 25 (b) the amount assessed by the Judge in accordance 26 with rule 8; 27 (c) the amount allowed after taxation on the standard 28 basis; or 29 (d) the amount allowed after taxation on the indemnity 30 basis. 31 32 (7) The orders which the court may make under this rule 33 include an order that a party must pay 34 (a) a proportion of another party's costs; 35 (b) a stated amount in respect of another party's costs; 36 (c) costs from or until a certain date only; 37 (d) costs incurred before proceedings have begun; 38 (e) costs relating to particular steps taken in the 39 proceedings; 40 (f) costs relating only to a distinct part of the 41 proceedings; 42 (g) costs relating to the service of the proceedings; 43 and 44 costs relating to the service of the proceedings; 45 and Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 3 of 23

¶ [6] In *Gojkovic v. Gojkovic (No. 2)* 1 the English Court of Appeal held that although a court exercises a wider discretion in respect of costs in family proceedings, than in other civil proceedings, to make no order of costs was unusual. With the exception of matters involving children or some special circumstance, where funds are available, costs *prima facie* followed the event. In that case where a wife had obtained an award which was in excess of the husband’s final offer, she was held entitled to have her costs.

¶ [7] Butler-Sloss J. discussed the principles which govern costs in applications for financial relief cases where open offers and *Calderbank* offers are made. The starting point is the general principles as to entitlement to costs in civil matters. The *prima facie* position of costs following the event may be affected by factors including the behavior of one party, such as in material non-disclosure of documents and delay or excessive zeal in seeking disclosure. The learned Judge stated: > "But the starting point in a case where there has been an offer is that, *prima facie*, if the applicant receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. That seems clear from the decided cases and is in accord with the Supreme Court and County Court Rules requiring the court to have regard to the offer. I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case *prima facie* costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that *prima facie* position."

¶ [8] The learned Judge noted that the husband in that case was left with a sizeable sum and did name view as judge that a ```
```html 9. In the case of McTaggart v. McTaggart2 the Cayman Islands Court of Appeal stated that while the position has changed in England and Wales following the enactment of the Family Procedure Rules 2010, there has been no corresponding change in this jurisdiction. The position in this jurisdiction is that: “If the court in the exercise of its discretion sees fit to make any order as to costs in ancillary relief proceedings, it shall order costs to follow the event (save where there are some special circumstances).” 10. The Court referred with approval to the case of Gojkovic v. Gojkovic and summarised the conclusions of Butler-Sloss L.J. as follows: “The effect of a requirement that “costs follow the event”-although not, at the time, directly applicable in matrimonial proceedings in England and Wales (see R.S.C., O.62，r.3(5))一was considered at some length by Butler-Sloss，L.J. in Gojkovic v. Gojkovic (No. 2) (3). She concluded that the general principle was that if, after contested proceedings, a party obtains an order which is more beneficial to him or her than an offer made by the other party under the Calderbank procedure, then the other party should pay the costs of the proceedings：conversely, if a party fails to obtain an order which is more beneficial than that which could have been accepted under the Calderbank procedure, then that party must expect to pay the costs of the offeror from the date of the offer.” 11. In its application of the general principle the Court observed that it was likely to be regarded as significant inter alia that the wife had been awarded substantially more than the husband's second Calderbank offer. The Court noted that if the burden of costs which the wife has to bear is such as to make serious inroads into the amount which she would have available for investment, fairness may require that the amount of the additional capital sum to be paid to her receive further consideration. 2 [2011] (2) CILR 417 Judgment on Costs：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：14.02.2020 Page 5 of 23

¶ [12] In its full judgment on costs in the said case 3 , the Court confirmed these principles and held that: > "The starting point in 'big money' cases, when making a costs order under the Matrimonial Causes Law (2005 Revision), s.21, was that costs should follow the event, and not lie where they fell. The court retained a discretion to depart from this position, and in exercising that discretion it was required by s.19 to consider the parties' resources, including their liability for costs. If an otherwise fair allocation of resources would be rendered unfair by a party's need to meet costs, then the court had discretion to alter the allocation of matrimonial property under s.21(b), order a payment to be made to the party under s.21(e), or make a costs order under s.21(g). In deciding which approach to adopt, the court should have in mind the desirability of avoiding additional litigation to determine costs, and give serious consideration to adjusting orders under s.21(b) or (e)."

¶ [13] The Court concluded that provision ought to have been made for the payment of the wife's costs given that the award made to her exceeded the Calderbank offers made by the husband. The Court further concluded that the wife should receive her costs given that the order which she obtained was in excess of any offer made by the husband. The discretionary nature of the exercise was emphasized by the Court as follows: > "Nevertheless, it is important to keep in mind (a) that GCR, O.62, r.4 recognizes that the court has a discretion whether or not to make any order as to the costs of any proceedings- the mandatory requirement that 'the Court shall order the costs to follow the event' arises only 'if the court in the exercise of its discretion sees fit to make any order as to the costs of the proceedings' – and (b) that the mandatory requirement is, itself, qualified by the words 'except where it appears to the court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.'"

¶ [14] The principles discussed in the case of McTaggart v. McTaggart have been applied in the earlier stages of this matter in October 2015 in the ruling of Williams J 4 . This related to the husband's unsuccessful application for leave to appeal a costs order. 3 [2015] (1) CILR 123 4 17 th November 2015 Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 6 of 23 ```
```html 1 15. In Mars UK v Teknowledge Ltd.5, Jacob J gave consideration to the applicable principles on an application for payment of an amount of costs on account. The learned Judge concluded that as a first step, there is a need to form a rough view as to the ultimate amount of assessed costs in respect of which an interim payment is to be made. A court should consider ordering a payment of a lesser amount approximately equal to what is almost certain to be collected. The circumstances to be taken into account in the exercise of a discretion whether to order a payment on account include whether or not a party may wish to appeal. A second consideration is dealing with the case in a way which is proportionate to the financial position of each party. This is one of the matters which must be considered in line with the overriding objective to deal with cases justly. The learned Judge stated: “The overriding objective applies as much to the exercise of the costs discretion as to any other discretion given under the Rules. This is a case, for example, where there is a wealthy successful party and a financially weak unsuccessful party. That is one thing that should be taken into account. Other things that might be taken into account are the likelihood of an appeal or possibly successful appeal. For example, there may be a case in which a claimant is financially weak. Even if it succeeds there might be an appeal by the defendant and the claimant needs the money to respond to the appeal. That would be a particularly good reason for ordering a payment on account.” 22 16. The principles discussed in the case of Mars UK Ltd. v. Teknowledge Ltd. with respect to interim payments were reviewed with approval in the Grand Court case of Riad Tawfiq Al Sadik6. Kawaley J summarized the principles in the following way:- 25. I would summarise the governing principles under Cayman Islands law in a more robust pro-receiving party manner as follows: (a) der 62 ru 29 of costs, such sum to be assessed summarily”; 5[2000] FSR 138 6FSD 47 of 2009, 6th August 2019 Judgment on Costs：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：14.02.2020 Page 7 of 23 ```
```html 1 (b) the governing principle underpinning this power, and the raison 2 d'etre for the rule, is that "the successful party is entitled to the 3 money. In principle he ought to get it as soon as possible. It does 4 not seem to me to be a good reason for keeping him out of some of 5 his costs that you need time to work out the total amount': per Jacob 6 J in Mars UK Ltd-v-Teknowledge Ltd (Costs) [1999] 2 Costs L.R. 7 598 at 601; 9 10 (c) in my judgment Jacob J's framing of the relevant principle is, with 11 respect, more persuasive than the more cautiously expressed 12 formulation of the English Court of Appeal in Blakemore-v- 13 Cummings [2010] 1 WLR 983 (at paragraph 23), notwithstanding 14 the fact that Investcorp's counsel was content to rely on this 15 somewhat more restrictive formulation. In that case the principle 16 that a successful party should not be kept out of their costs was 17 described as "an important consideration". With respect, that 18 understates the true weight the principle deserves. The principle 19 that a successful party should be paid some of his costs immediately 20 and before taxation is not simply "an important consideration", it is 21 the governing and predominant principle articulated by the interim 22 payment on account of costs rule; 23 24 (d) the purpose of the rule is to enable the Court to avoid the injustice 25 of delayed payment of all costs until the total amount is determined 26 upon taxation through a summary partial assessment. This is 27 because the need to carry out a detailed assessment through 28 taxation is "not a good reason" for not ordering some costs to be 29 paid immediately. Whether or not the discretion should be exercised 30 is not shaped by the need to do justice in an abstract sense, entirely 31 untethered from the core purpose of the rule. Whether or not an 32 interim payment on account of costs should be ordered will almost 33 invariably require an assessment to be made of whether or not there 34 is a good reason not to order an interim payment and/or a good 35 reason for requiring the receiving party to be deprived of any costs 36 until the taxation process is complete; 37 38 (e) GCR Order 62 rule 4 (7) (h), properly construed, contains an 39 implicit starting assumption that an interim payment should be 40 made. Obviously this starting assumption has somewhat less weight 41 than an express statutory presumption. But the starting assumption 42 tearing is not 43 46 the fact that 44 47 the principle is a good d 45 48 articulatending is "dri 49 50 them of all of their costs, and (ii) to empower the Court to summarily assess an appropriate partial costs payment which should immediately be made; Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 8 of 23 ```
```html 1 (f) the current English CPR rule 44.2 (8) in my judgment simply makes 2 the implicit assumption in the earlier English rule explicit, giving 3 express legislative approval to the approach of Jacobs J in Mars 4 UK (which was, perhaps unintentionally, somewhat diluted by the 5 Court of Appeal in Blakemore (or Blackmore) by providing that 6 where taxation is ordered, the Court "will order that party to pay a 7 reasonable sum on account of costs, unless there is good reason not 8 to do so" [emphasis added]. To my mind it merely states more 9 clearly and explicitly what is already implicit in the current Cayman 10 Islands rule rather than articulating an entirely distinct and 11 different jurisdictional approach; 12 13 (g) in concluding that GCR Order 62 rule 4(7) (h) contains an implicit 14 starting assumption in favour of an interim payment on account of 15 costs, I do not ignore the fact that power to make such an Order is 16 clearly discretionary and that the strength of the starting 17 assumption may be weaker or stronger depending on the 18 circumstances of each case. It is important to remember however, 19 that when Jacobs J in Mars UK Ltd-v-Teknowledge Ltd 20 (Costs)[1999] 2 Costs L.R. 598 at 601 was discussing the 21 overriding objective as applying "as much to the exercise of the 22 costs discretion as to any other discretion given under the Rules", 23 he was dealing with a somewhat different procedural code. The 24 impact of the Overriding Objective in the Preamble to the Grand 25 Court Rules may apply in a general sense to GCR Order 62 as much 26 as it applies to other parts of the GCR code. But when construing 27 the jurisdiction conferred by Order 62, it is important to have 28 regard to GCR Order 62 rule 4 (2), which states in terms which 29 provide in a general sense support for a more robust approach to 30 construing GCR Order 62 rule 4 (7) (h): 31 32 (2) The overriding objective of this Order is that a 33 successful party to any proceeding should recover 34 from the opposing party the reasonable costs 35 incurred by him in conducting that proceeding in 36 an economical, expeditious and proper manner 37 unless otherwise ordered by the Court"; 38 39 (h) one recognised and significant reason for not ordering an interim 40 payment on account of costs is the need to avoid stifling an appeal: 41 Re BDO [2018 (1) CILR 187] (Parker J at paragraphs 37-38). 42 Another is that the application for an interim payment should not 43 be a disproceeding: p 44 v-Teknover Jacobs J 45 proportionat in Mars UF 46 wledge Lte P Ltd- 47 48 49 50 Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 9 of 23 ```
```markdown (i) a summary assessment of the appropriate interim payment amount must obviously be possible and sufficient supporting material (e.g. a draft bill of costs or a breakdown of incurred costs) must be placed before the Court; (j) the Court's discretionary powers under the rule are sufficiently flexible to enable justice to be done on a case by case basis, being guided by both the letter and spirit of the relevant rule." THE SUBMISSIONS

¶ [17] The parties agree that the Calderbank approach was followed in this case and there is also agreement as to the applicable legal principles. There is disagreement as to whether or not there was a successful party.

¶ [18] Following the hearing, Practice Direction 3 of 2019 was gazetted on the 9th October 2019. This requires that the parties provide schedules of costs at least 14 days before the ancillary hearing. Going forward this will assist to eliminate the need for second hearings such as in this matter.

¶ [19] In this case which pre-dated that Direction, no such schedules were provided at the time of or prior to the hearing. By Affidavit dated 13th September 2019, the wife has now provided evidence of a global sum of CI $215,000.00 as being the costs incurred to date. She attests that a portion of that sum was written down leaving approximately CI $195,000.00 outstanding. Bills been provided as follows: Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 10 of 23 ```
```html Attorneys 1st in time March 2014-Dec. 2017 118，199.00 GBP Attorneys 2nd in time May 2018-March 2019 18，494.50 Attorneys 3rd in time May 2019-July 2019 37，293.97 Expert's Report 19，586.25 Senior Counsel 28th May 2019-5th June 2019 35，000.00 Total CIS 193，573.72 Total GBP 35，000.00

¶ [21] The wife refers to the final Calderbank offer made by the husband before trial which was as follows: Wife CIS Husband CIS Capital Payment 1，010，278.00 410，000.00 Housing Lump Sum 298，750.00 Nil Maintenance including rent 10，212.00 6，156.00

¶ [22] Counsel on behalf of the wife submits that the wife should not be deprived of her costs for two reasons. The husband is the economically dominant party to the proceedings, and it was open to him to present a reasonable and achievable offer of settlement. Additionally it is urged that the economic disparity between the parties is such that there is no basis for the exercise of a discretion in a manner such as to deprive the wife of her costs. It is further argued that in any event, the difference between the offer made by the husband and the sums awarded under the judgment is significantly greater than the difference between the wife's offer and the sum ultimately awarded.

¶ [23] Counsel on behalf of the husband makes four principal submissions. Firstly that by virtue of the Court cited case relating to the effect of the decisions of Appeal Court v. Mettag, the costs are only the recoverable costs in the wife's application for financial relief. The wife is seeking to recover the entire cost of the ```
```html 1 divorce proceedings to include not only the application for financial relief but also 2 including but not limited to a) resolution of the Further Amended Petition and b) 3 disclosure issues relating to the wife's assertion that the husband had a financial interest 4 in the Firm to which he is employed. This assertion was subsequently abandoned. 5 24. Under this heading, Counsel on behalf of the husband submits that the original Petition 6 which was filed on the 15th April 2014 was twice amended. This was done on the 2nd 7 October 2014 and on the 7th September 2015 before the Petition was subsequently agreed 8 to by the husband and proved. The issues requiring amendment related to the reference 9 to co-respondent RK and the wife's non-compliance with the Grand Court Rules. 10 11 25. By Summons filed on the 23rd July 2014, the wife sought leave to file an Amended 12 Petition. By Order of the Learned Chief Justice made on the 28th July 2014, the wife's 13 Summons was dismissed and there was a direction to her to amend the Petition so as to 14 properly particularize the material facts in accordance with the Grand Court Rules. Costs 15 were reserved. 16 17 26. It is submitted by Counsel for the husband that applications for amendments to the 18 Petition cannot be characterised as a success for the wife who failed to draft the 19 document in compliance with the Rules. 20 21 27. The wife in response to this argument submitted that work in relation to the Petition was 22 done of the daseetbaby part of the husband and was a necessary part of the process 23 at the Venesal and wasess. 24 25 28. As a under this he 26 band sub th second limb leading Co hu e course of the proceedings a number of ancillary applications involving maintenance, disclosure, ```
```html 1 removal of child from the jurisdiction and adjournments had been dealt with by different 2 judges. In some cases costs orders had been made. Counsel detailed these as follows: 3 i. "On the 4th September 2015, Williams J. ordered that the Respondent 4 should pay 50% of the Petitioner's costs of preparation for, and attendance 5 at that hearing. 6 7 ii. On the 17th November 2015, Williams J. ordered that the Respondent 8 should "pay the wife's costs incurred in preparation for and attendance at 9 the hearing of the leave to appeal application" 10 11 iii. On the 14th December 2017, Gunn J. ordered that the "Respondent shall pay 12 fifty percent of the Petitioner's costs in preparation for and attendance at 13 the hearing of her application [for increased maintenance]. Such costs to 14 be taxed if not agreed"; 15 16 iv. On the 14th December 2017, Gunn J. ordered that the "Petitioner shall pay 17 the Respondent's costs in preparation for and attendance at the hearing of 18 this 14 December summons [for removal from the jurisdiction]. Such costs 19 to be taxed if not agreed". 20 21 v. On the 10th April 2019, Gunn J. ordered that "The Petitioner is to pay all of 22 Respondent's incidental to wa. 9, to be 23 the adjourn 24 25 the s costs of amment of the 24 25 final anci g which or ed if not and with respect to the Respondent's costs referred to in [the above paragraph]: (i) these shall include preparation for and attendance at the Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 13 of 23 ```
```html 1 hearing of the Petitioner's summons on 27 March 2019, preparation for and 2 attendance at today's CMC and drafting of any response by the Respondent 3 to any affidavit filed by the Petitioner in accordance with paragraph 2 of 4 this order; (ii) these shall not include costs of drafting of 22 March 2019 5 Affidavit by Respondent; (iii) potential further costs in relation to disclosure 6 requests of the Petitioner are reserved and leave is granted by the 7 Respondent to apply in relation to these costs following the Petitioner's 8 response to paragraph 1 of this order". 9 10 11 29. In the course of this hearing, Counsel on behalf of the wife in response to these 12 submissions clarified that costs are not being sought with respect to matters which have 13 already been decided and agreed that any costs order would be separate from those 14 alreadymade. It was stated that the wife is not seeking to reopen costs orders which 15 would be dealt with separately during the taxation process. Costs are being sought which 16 are not covered by existing costs orders. 17 18 30. The primary submission made on behalf of the husband is that both parties failed to 19 achieve or come within a reasonable margin of their offers and thus neither party 20 succeeded in achieving an order which at least met their best efforts. It is urged that the 21 Court's judgment came within an appreciable margin of the highest offer made by the 22 husband and was very significantly below the lowest offer made by the wife. My view 23 is that of the principal that the Court's judgment came within an appreciable margin of the 24 highest offer made by the husband and was very significantly below the lowest offer made 25 by the wife. My view is that of the principal that the Court's judgment came within an 26 appreciable margin of the highest offer made by the husband and was very significantly 27 below the lowest offer made by the wife. My view is that of the principal that the Court's 28 judgment came within an appreciable margin of the highest offer made by the husband and 29 was very significantly below the lowest offer made by the wife. My view is that of the 30 principal that the Court's judgment came within an appreciable margin of the highest offer 31 made by the husband and was very significantly below the lowest offer made by the wife. 32 My view is that of the principal that the Court's judgment came within an appreciable 33 margin of the highest offer made by the husband and was very significantly below the 34 lowest offer made by the wife. My view is that of the principal that the Court's judgment 35 came within an appreciable margin of the highest offer made by the husband and was 36 very significantly below the lowest offer made by the wife. My view is that of the 37 principal that the Court's judgment came within an appreciable margin of the highest 38 offer made by the husband and was very significantly below the lowest offer made by the 39 wife. My view is that of the principal that the Court's judgment came within an 40 appreciable margin of the highest offer made by the husband and was very significantly 41 below the lowest offer made by the wife. My view is that of the principal that the Court's 42 judgment came within an appreciable margin of the highest offer made by the husband and 43 was very significantly below the lowest offer made by the wife. My view is that of the 44 principal that the Court's judgment came within an appreciable margin of the highest 45 offer made by the husband and was very significantly below the lowest offer made by the 46 wife. My view is that of the principal that the Court's judgment came within an 47 appreciable margin of the highest offer made by the husband and was very significantly 48 below the lowest offer made by the wife. My view is that of the principal that the Court's 49 judgment came within an appreciable margin of the highest offer made by the husband and 50 was very significantly below the lowest offer made by the wife. My view is that of the 51 principal that the Court's judgment came within an appreciable margin of the highest 52 offer made by the husband and was very significantly below the lowest offer made by the 53 wife. My view is that of the principal that the Court's judgment came within an 54 appreciable margin of the highest offer made by the husband and was very significantly 55 below the lowest offer made by the wife. My view is that of the principal that the Court's 56 judgment came within an appreciable margin of the highest offer made by the husband and 57 was very significantly below the lowest offer made by the wife. My view is that of the 58 principal that the Court's judgment came within an appreciable margin of the highest 59 offer made by the husband and was very significantly below the lowest offer made by the 60 wife. My view is that of the principal that the Court's judgment came within an 61 appreciable margin of the highest offer made by the husband and was very significantly 62 below the lowest offer made by the wife. My view is that of the principal that the Court's 63 judgment came within an appreciable margin of the highest offer made by the husband and 64 was very significantly below the lowest offer made by the wife. My view is that of the 65 principal that the Court's judgment came within an appreciable margin of the highest 66 offer made by the husband and was very significantly below the lowest offer made by the 67 wife. My view is that of the principal that the Court's judgment came within an 68 appreciable margin of the highest offer made by the husband and was very significantly 69 below the lowest offer made by the wife. My view is that of the principal that the Court's 70 judgment came within an appreciable margin of the highest offer made by the husband and 71 was very significantly below the lowest offer made by the wife. My view is that of the 72 principal that the Court's judgment came within an appreciable margin of the highest 73 offer made by the husband and was very significantly below the lowest offer made by the 74 wife. My view is that of the principal that the Court's judgment came within an 75 appreciable margin of the highest offer made by the husband and was very significantly 76 below the lowest offer made by the wife. My view is that of the principal that the Court's 77 judgment came within an appreciable margin of the highest offer made by the husband and 78 was very significantly below the lowest offer made by the wife. My view is that of the 79 principal that the Court's judgment came within an appreciable margin of the highest 80 offer made by the husband and was very significantly below the lowest offer made by the 81 wife. My view is that of the principal that the Court's judgment came within an 82 appreciable margin of the highest offer made by the husband and was very significantly 83 below the lowest offer made by the wife. My view is that of the principal that the Court's 84 judgment came within an appreciable margin of the highest offer made by the husband and 85 was very significantly below the lowest offer made by the wife. My view is that of the 86 principal that the Court's judgment came within an appreciable margin of the highest 87 offer made by the husband and was very significantly below the lowest offer made by the 88 wife. My view is that of the principal that the Court's judgment came within an 89 appreciable margin of the highest offer made by the husband and was very significantly 90 below the lowest offer made by the wife. My view is that of the principal that the Court's 91 judgment came within an appreciable margin of the highest offer made by the husband and 92 was very significantly below the lowest offer made by the wife. My view is that of the 93 principal that the Court's judgment came within an appreciable margin of the highest 94 offer made by the husband and was very significantly below the lowest offer made by the 95 wife. My view is that of the principal that the Court's judgment came within an 96 appreciable margin of the highest offer made by the husband and was very significantly 97 below the lowest offer made by the wife. My view is that of the principal that the Court's 98 judgment came within an appreciable margin of the highest offer made by the husband and 99 was very significantly below the lowest offer made by the wife. My view is that of the 100 principal that the Court's judgment came within an appreciable margin of the highest 101 offer made by the husband and was very significantly below the lowest offer made by the 102 wife. My view is that of the principal that the Court's judgment came within an 103 appreciable margin of the highest offer made by the husband and was very significantly 104 below the lowest offer made by the wife. My view is that of the principal that the Court's 105 judgment came within an appreciable margin of the highest offer made by the husband and 106 was very significantly below the lowest offer made by the wife. My view is that of the 107 principal that the Court's judgment came within an appreciable margin of the highest 108 offer made by the husband and was very significantly below the lowest offer made by the 109 wife. My view is that of the principal that the Court's judgment came within an 110 appreciable margin of the highest offer made by the husband and was very significantly 111 below the lowest offer made by the wife. My view is that of the principal that the Court's 112 judgment came within an appreciable margin of the highest offer made by the husband and 113 was very significantly below the lowest offer made by the wife. My view is that of the 114 principal that the Court's judgment came within an appreciable margin of the highest 115 offer made by the husband and was very significantly below the lowest offer made by the 116 wife. My view is that of the principal that the Court's judgment came within an 117 appreciable margin of the highest offer made by the husband and was very significantly 118 below the lowest offer made by the wife. My view is that of the principal that the Court's 119 judgment came within an appreciable margin of the highest offer made by the husband and 120 was very significantly below the lowest offer made by the wife. My view is that of the 121 principal that the Court's judgment came within an appreciable margin of the highest 122 offer made by the husband and was very significantly below the lowest offer made by the 123 wife. My view is that of the principal that the Court's judgment came within an 124 appreciable margin of the highest offer made by the husband and was very significantly 125 below the lowest offer made by the wife. My view is that of the principal that the Court's 126 judgment came within an appreciable margin of the highest offer made by the husband and 127 was very significantly below the lowest offer made by the wife. My view is that of the 128 principal that the Court's judgment came within an appreciable margin of the highest 129 offer made by the husband and was very significantly below the lowest offer made by the 130 wife. My view is that of the principal that the Court's judgment came within an 131 appreciable margin of the highest offer made by the husband and was very significantly 132 below the lowest offer made by the wife. My view is that of the principal that the Court's 133 judgment came within an appreciable margin of the highest offer made by the husband and 134 was very significantly below the lowest offer made by the wife. My view is that of the 135 principal that the Court's judgment came within an appreciable margin of the highest 136 offer made by the husband and was very significantly below the lowest offer made by the 137 wife. My view is that of the principal that the Court's judgment came within an 138 appreciable margin of the highest offer made by the husband and was very significantly 139 below the lowest offer made by the wife. My view is that of the principal that the Court's 140 judgment came within an appreciable margin of the highest offer made by the husband and 141 was very significantly below the lowest offer made by the wife. My view is that of the 142 principal that the Court's judgment came within an appreciable margin of the highest 143 offer made by the husband and was very significantly below the lowest offer made by the 144 wife. My view is that of the principal that the Court's judgment came within an 145 appreciable margin of the highest offer made by the husband and was very significantly 146 below the lowest offer made by the wife. My view is that of the principal that the Court's 147 judgment came within an appreciable margin of the highest offer made by the husband and 148 was very significantly below the lowest offer made by the wife. My view is that of the 149 principal that the Court's judgment came within an appreciable margin of the highest 150 offer made by the husband and was very significantly below the lowest offer made by the 151 wife. My view is that of the principal that the Court's judgment came within an 152 appreciable margin of the highest offer made by the husband and was very significantly 153 below the lowest offer made by the wife. My view is that of the principal that the Court's 154 judgment came within an appreciable margin of the highest offer made by the husband and 155 was very significantly below the lowest offer made by the wife. My view is that of the 156 principal that the Court's judgment came within an appreciable margin of the highest 157 offer made by the husband and was very significantly below the lowest offer made by the 158 wife. My view is that of the principal that the Court's judgment came within an 159 appreciable margin of the highest offer made by the husband and was very significantly 160 below the lowest offer made by the wife. My view is that of the principal that the Court's 161 judgment came within an appreciable margin of the highest offer made by the husband and 162 was very significantly below the lowest offer made by the wife. My view is that of the 163 principal that the Court's judgment came within an appreciable margin of the highest 164 offer made by the husband and was very significantly below the lowest offer made by the 165 wife. My view is that of the principal that the Court's judgment came within an 166 appreciable margin of the highest offer made by the husband and was very significantly 167 below the lowest offer made by the wife. My view is that of the principal that the Court's 168 judgment came within an appreciable margin of the highest offer made by the husband and 169 was very significantly below the lowest offer made by the wife. My view is that of the 170 principal that the Court's judgment came within an appreciable margin of the highest 171 offer made by the husband and was very significantly below the lowest offer made by the 172 wife. My view is that of the principal that the Court's judgment came within an 173 appreciable margin of the highest offer made by the husband and was very significantly 174 below the lowest offer made by the wife. My view is that of the principal that the Court's 175 judgment came within an appreciable margin of the highest offer made by the husband and 176 was very significantly below the lowest offer made by the wife. My view is that of the 177 principal that the Court's judgment came within an appreciable margin of the highest 178 offer made by the husband and was very significantly below the lowest offer made by the 179 wife. My view is that of the principal that the Court's judgment came within an 180 appreciable margin of the highest offer made by the husband and was very significantly 181 below the lowest offer made by the wife. My view is that of the principal that the Court's 182 judgment came within an appreciable margin of the highest offer made by the husband and 183 was very significantly below the lowest offer made by the wife. My view is that of the 184 principal that the Court's judgment came within an appreciable margin of the highest 185 offer made by the husband and was very significantly below the lowest offer made by the 186 wife. My view is that of the principal that the Court's judgment came within an 187 appreciable margin of the highest offer made by the husband and was very significantly 188 below the lowest offer made by the wife. My view is that of the principal that the Court's 189 judgment came within an appreciable margin of the highest offer made by the husband and 190 was very significantly below the lowest offer made by the wife. My view is that of the 191 principal that the Court's judgment came within an appreciable margin of the highest 192 offer made by the husband and was very significantly below the lowest offer made by the 193 wife. My view is that of the principal that the Court's judgment came within an 194 appreciable margin of the highest offer made by the husband and was very significantly 195 below the lowest offer made by the wife. My view is that of the principal that the Court's
```html 1 31. Counsel for the husband also places some reliance on the fact that in the course of negotiations, the second Calderbank offer made by the husband, was for a lump sum of CI$175，000.00，and purchase of a property for J. of a value of $700，000.00. This was made on the 16th July 2018，and the wife did not respond to this offer until the 1st November 2018 whereupon it was rejected with no counter offer. Counsel submits that effectively the wife withdrew from the negotiation process. 7 8 32. The husband made a further written offer on the 23rd May 2019 and the wife countered on the 31st May 2019 with the offer of a capital payment of CI$1，010，278.00，purchase of a house of a value CI$2，350，000.00 with further lump sum payment of CI$298，750.00 and maintenance payments of CI$10，212.00. 12 13 33. I have given consideration to the submission made on behalf of the husband that the wife delayed for the five months between June and November 2018 and withdrew from the negotiation process by not responding with a counter offer. While this non-response may not have been helpful in resolving the matter，I do note that in May 2019，the wife responded to a further offer from the husband and effectively re-engaged in the negotiation process. I do not consider that her conduct in the intervening period is such that she should be penalized in costs if she is the successful party. There was somewhat of a gulf between the parties. The husband's first offer was for a lump sum payment of $150，000.00 which he had increased by $25，000.00 to $175，000.00 in response to the wife's counter offer of CI$925，000.00. 20 21 22 25 26 27 28 29 30 31 32 33 34. The ted that her l as an ora ue 31st Matha 2019 to 2019 and increase the capital payment to CI$410，000.00. The table below shows the husband's final offers and the award made by the Court： ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{tabularx} \usepackage{graphicx} \usepackage{hyperref} \section{Counsel for the husband also places some reliance on the fact that in the course of negotiations, the second Calderbank offer made by the husband, was for a lump sum of CI\$175,000.00, and purchase of a property for J. of a value of \$700,000.00. This was made on the 16th July 2018, and the wife did not respond to this offer until the 1st November 2018 whereupon it was rejected with no counter offer. Counsel submits that effectively the wife withdrew from the negotiation process.} \section{The husband made a further written offer on the 23rd May 2019 and the wife countered on the 31st May 2019 with the offer of a capital payment of CI\$1,010,278.00, purchase of a house of a value CI\$2,350,000.00 with further lump sum payment of CI\$298,750.00 and maintenance payments of CI\$10,212.00.} \section{I have given consideration to the submission made on behalf of the husband that the wife delayed for the five months between June and November 2018 and withdrew from the negotiation process by not responding with a counter offer. While this non-response may not have been helpful in resolving the matter, I do note that in May 2019, the wife responded to a further offer from the husband and effectively re-engaged in the negotiation process. I do not consider that her conduct in the intervening period is such that she should be penalized in costs if she is the successful party. There was somewhat of a gulf between the parties. The husband's first offer was for a lump sum payment of \$150,000.00 which he had increased by \$25,000.00 to \$175,000.00 in response to the wife's counter offer of CI\$925,000.00.} \section{The ted that her l as an ora juie 31st Matha 2019 to 2019 and increase the capital payment to CI\$410,000.00. The table below shows the husband's final offers and the award made by the Court:} ```
```html Wife CIS Husband CIS Award Capital Payment 1,010,278.00 410,000.00 747,878.99 Housing down payment 298,750.00 Nil 10 % of price Lump Sum Maintenance including rent 10,212.00 6,156.00 7,157.00 Housing value 1,200,000.00 700,000.00 800,000.00 to 900,000.00 ``` ```latex \section{Counsel on behalf of the husband submitted thirdly that the judgment determined that assets accumulated during the marriage should be distributed equally, this must mean assets net of liabilities and thus that the cost liabilities of the parties should be divided equally. It was urged that:} \textit{``Further, to any extent that the Respondent was responsible for the wife's costs in these proceedings this would constitute a liability that accrued "during the marriage" as defined. As such, this liability would reduce the distributable amount to be divided equally between the parties to the exact extent of any such order.''} ``` ```html Wife CIS Husband CIS Award Capital Payment 1,010,278.00 410,000.00 747,878.99 Housing down payment 298,750.00 Nil 10 % of price Lump Sum Maintenance including rent 10,212.00 6,156.00 7,157.00 Housing value 1,200,000.00 700,000.00 800,000.00 to 900,000.00 ``` ```latex \section{It is difficult to accept this submission in these circumstances where what is being determined is whether costs should follow the event, the event in this case being the conclusion of ancillary proceedings.} \section{Having considered all the circumstances of the case and the submissions made by both Counsel, subject to exceptions which arise in respect of some items, I do not see a basis for other than the usual course to apply that costs follow the event. Applying the principles discussed in the cases cited above, I conclude that the earlier judgment was more favorable to the wife than the best offers of the husband. In summary, the husband is in thd to obtain a which was m that the e coul accepted unc, w dure'. Nexte at which is case 'failen overall ordal than that v er which d have been : ler the Caoce nt of the wife's' costs is known, it is undoubtedly the case, that this would amount to a significant dent in the lump sum payment awarded to her. In these circumstances where she is the}

¶ [1] financially weaker party, where the husband's resources are substantial, where by virtue of the judgment made he is left with a significant asset balance, the justice of this case requires that the usual principle is applied. The wife is entitled to her costs as the successful party.

¶ [38] Counsel on behalf of the husband made the alternative submission that there are special circumstances such that the wife should not be awarded costs. These include in particular the wife's pursuit of disclosure with respect to the husband's partnership in the Firm to which he is employed.

¶ [39] I refer to paragraph 26 of the earlier judgment in this matter which references the pre-nuptial agreement between the parties which undoubtedly lead to the confusion as to the nature of the husband's interest in the Firm. In that agreement, his interest is described as partnership interest and the assets therein as ownership percentage as a partner/owner of the Firm. The husband's concern with respect to costs is that the wife is seeking an order for the payment of costs of an expert witness in relation to the husband's interest, in circumstances where the matter had been clarified by the Affidavit of LN, the Director of Finance and Operations, as far back as the 17th June 2016 and that several offers had been made to provide her Attorneys with inspection of the documents which would support the factual position.

¶ [40] The sequence of events as put forward by the husband is inter alia: a. 14: details of firm provided by husband on 11th July 2017; ownership in his response to fnse to 25 the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response to the request for better particulars; 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and in his response to the request for better particulars; and in his response to the request for better particulars; and in his response
```markdown c. December 2016 – January 2017: email exchange between Attorneys on behalf of Firm and counsel for wife providing further full details in respect of questions raised; d. 1st February 2017: Invitation to review documentation of Firm re-sent; e. 26th May 2017: offer accepted; f. 3rd August 2017: Date for review of documents set, cancelled on day by wife’s Attorneys, no further attempts to make appointment made; g. 14th June 2017 & 3 August 2017: appointment to review documents cancelled by wife; h. 4th December 2018: Court strongly invites allowance of a further appointment; i. 8th and 27th February 2019: Attendance at offices of Firm for review of documents. Counsel for wife provided with opportunity to ask any other questions, declined. j. Undisclosed date: wife instructs "expert's report which was relevant to an assessment of the assets of the Respondent in these proceedings"; k. 3rd June 2019: wife abandons previous assertions in respect of Firm at trial.

¶ [41] Counsel for the husband submits further that it was open to the wife to satisfy herself as to the position since July 2014 and that she declined to do so until February 2019. It is submitted that her position with respect to the husband’s interest has been entirely unreasonable and that the Court should exercise its discretion by making an order in favour of the husband with respect to costs associated with disclosure issues concerning the Firm since July 2014.

¶ [42] In reisel on behalf at there want e submitsas

¶ [23] 4ponse Cour If of the v th: lack of clarity on this issue. It is said that all the hallmarks indicated that there was equity partnership, yet there was a denial of ownership. It is further said that these were matters ```
```html 1 which required detailed investigation in the course of the proceedings, so that the steps 2 taken to investigate were all reasonable in the circumstances. 3 4 43. In my view a legitimate issue arose as to the husband’s status in the Firm given the 5 manner in which the husband described his interest in the pre-nuptial agreement. In the 6 face of this, the wife’s initial attempt to clarify the matter was entirely reasonable in the 7 circumstances. The husband seeks his costs incurred since 2014, for complying with the 8 wife’s disclosure requests concerning the Firm. He says that he made earnest efforts to 9 provide full disclosure. I do have a concern that following the receipt of the Affidavit 10 of 17th June 2016 which sets out the detail as to the nature of his interest and after having 11 been offered the opportunity to review the relevant documents there was considerable 12 delay in accepting this opportunity. The Affidavit of LN of 17th June 2016 was an 13 important response from someone other than the husband. The Attorneys on behalf of 14 the Firm wrote to Counsel for the wife in December 2016 and January 2017 and an 15 invitation to inspect was re-sent on 1st February 2017. That invitation was not acted upon 16 until the 27th February 2019. The matter also appears to have been further pursued 17 beyond the review of the documents. The wife may well have persisted long beyond 18 the point reasonably necessary. 19 20 44. In light of the submissions of Counsel on behalf of the husband, I have given 21 consideration to whether the wife’s conduct with respect to these disclosure issues 22 constitute special circumstances in the sense discussed in the case of Gojovic v. Gojovic 23 suchuld either be costs in whol of the hudej 24 pay the cusb. 25 that she sho required her ce or in part. ost prived of and or be Judgment on Costs: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 14.02.2020 Page 19 of 23

¶ [45] In my view the husband created the confusion in the first place and the onus was on him to clarify the situation. He ought not to be seeking recompense for clarifying the confusion that he himself caused. I would decline his application for costs but do not consider that the wife should be entitled to the entirety of her costs on this issue.

¶ [46] I considered whether the cutoff date should be from 2014 as highlighted by the husband but it was not unreasonable in light of the lack of clarity, for the wife to have sought some input from an independent person. I also considered whether the cutoff date of 17th June 2016, the date of the Affidavit of LN should be utilised. However the offer having been extended in that Affidavit, it was not unreasonable to seek to examine/inspect the documents as offered. In so far as there were costs attendant on the invited examination, it is difficult to see the basis for exclusion of these. However to have persisted beyond February 2019 stretches the boundaries of reasonableness. I would accept the submission of the husband to the extent that the wife’s costs on this issue, are limited to costs incurred up to February 2019.

¶ [47] I accept the submissions of the husband with respect to costs for resolution and amendment of the Petition.

¶ [48] The costs awarded to the wife on this hearing therefore exclude the following: a. costs which have already been covered by cost orders previously made as outlined above. b. costs incurred after February 2019 with interest in the amount of $1,000.00. c. costs in relation to the resolution and amendment of the Petition. ``` This transcription accurately reflects the content of the document, including the legal context and the specific points made in the judgment.
```markdown # PAYMENT ON ACCOUNT

¶ [49] With respect to the wife’s application for an interim payment, the general principles are agreed. I am guided by the principles detailed above in the cases of Mars UK. v. Teknowledge Ltd. and Riad Tawfiq Al Sadik. The circumstances of the present case would allow for the exercise of a discretion in line with the principles detailed therein. The financially stronger party in this case wishes to exercise his right of appeal. The wife will need funds in order to respond. As the learned Judge stated in the latter case, the purpose of the rule as to interim payments is to enable the Court to avoid the injustice of delayed payments of all costs until the total amount is determined, through a summary partial assessment. In the exercise of my discretion I consider that it is appropriate in this case that a payment on account be ordered.

¶ [50] The husband submits that payment of any sum would have a bearing on the final form of the order in respect of the payment of the lump sum over a period of months and that more time would be needed to pay, perhaps six months if ordered to pay costs. The wife submits that it would be unreasonable to allow a further time period and that twelve months would be too long a period.

¶ [51] The husband’s monthly income is some $62,866.00 per month. He has the asset base and resources to meet an interim order of costs. To give any extended time to pay would defeat the purpose of a payment on account.

¶ [52] Exclost for the , which is challenged and the cExpert’s repnd which is of about the port post 24 February 2019, a rough estint of h appear to fall within the period during which no previous cost orders were made, this would amount to approximately CI$94,288.47.00. ``` ```html 1 49. With respect to the wife’s application for an interim payment, the general principles are agreed. I am guided by the principles detailed above in the cases of Mars UK. v. Teknowledge Ltd. and Riad Tawfiq Al Sadik. The circumstances of the present case would allow for the exercise of a discretion in line with the principles detailed therein. The financially stronger party in this case wishes to exercise his right of appeal. The wife will need funds in order to respond. As the learned Judge stated in the latter case, the purpose of the rule as to interim payments is to enable the Court to avoid the injustice of delayed payments of all costs until the total amount is determined, through a summary partial assessment. In the exercise of my discretion I consider that it is appropriate in this case that a payment on account be ordered. 50. The husband submits that payment of any sum would have a bearing on the final form of the order in respect of the payment of the lump sum over a period of months and that more time would be needed to pay, perhaps six months if ordered to pay costs. The wife submits that it would be unreasonable to allow a further time period and that twelve months would be too long a period. 51. The husband’s monthly income is some $62,866.00 per month. He has the asset base and resources to meet an interim order of costs. To give any extended time to pay would defeat the purpose of a payment on account. 52. Exclost for the , which is challenged and the cExpert’s repnd which is of about the port post 24 February 2019, a rough estint of h appear to fall within the period during which no previous cost orders were made, this would amount to approximately CI$94,288.47.00. ``` ```latex \section{PAYMENT ON ACCOUNT} \begin{enumerate} \item With respect to the wife’s application for an interim payment, the general principles are agreed. I am guided by the principles detailed above in the cases of Mars UK. v. Teknowledge Ltd. and Riad Tawfiq Al Sadik. The circumstances of the present case would allow for the exercise of a discretion in line with the principles detailed therein. The financially stronger party in this case wishes to exercise his right of appeal. The wife will need funds in order to respond. As the learned Judge stated in the latter case, the purpose of the rule as to interim payments is to enable the Court to avoid the injustice of delayed payments of all costs until the total amount is determined, through a summary partial assessment. In the exercise of my discretion I consider that it is appropriate in this case that a payment on account be ordered. \item The husband submits that payment of any sum would have a bearing on the final form of the order in respect of the payment of the lump sum over a period of months and that more time would be needed to pay, perhaps six months if ordered to pay costs. The wife submits that it would be unreasonable to allow a further time period and that twelve months would be too long a period. \item The husband’s monthly income is some $62,866.00 per month. He has the asset base and resources to meet an interim order of costs. To give any extended time to pay would defeat the purpose of a payment on account. \item Exclost for the , which is challenged and the cExpert’s repnd which is of about the port post 24 February 2019, a rough estint of h appear to fall within the period during which no previous cost orders were made, this would amount to approximately CI$94,288.47.00. \end{enumerate}

¶ [53] On making allowance for the possibility of reduction in the taxation process, I would consider that the amount on account should be conservatively no more than 70% or CI$66,001.92.

¶ [54] Costs are awarded to the wife on the standard basis to be taxed if not agreed subject to the exclusions identified above. An interim payment on account of CI$66,001.92 should be made by the husband to the wife. This should be paid within 14 days of the date of this Order. ### COSTS IN RELATION TO THE APPLICATION

¶ [55] In respect of costs attendant upon this application, Counsel on behalf of the husband submitted that given the partial success of both parties, either there should be no order for costs or there should be a limited order for costs. Counsel noted that: i. The wife’s position at the costs hearing was that the costs of the entire proceedings should be awarded in her favour with an interim order sought of CI$95,000. ii. Costs were disallowed, in particular those in relation to the Petition and discovery since February 2019. iii. An interim costs order of a lesser amount was made;

¶ [56] Counsel on behalf of the wife submitted that in view of the wife’s success in her application for costs and that the costs of the hearing of the 16th September 2019 should simply be included in the taxation of the costs of the action. ``` ```html 53. On making allowance for the possibility of reduction in the taxation process, I would consider that the amount on account should be conservatively no more than 70% or CI$66,001.92. 54. Costs are awarded to the wife on the standard basis to be taxed if not agreed subject to the exclusions identified above. An interim payment on account of CI$66,001.92 should be made by the husband to the wife. This should be paid within 14 days of the date of this Order. 55. In respect of costs attendant upon this application, Counsel on behalf of the husband submitted that given the partial success of both parties, either there should be no order for costs or there should be a limited order for costs. Counsel noted that: i. The wife’s position at the costs hearing was that the costs of the entire proceedings should be awarded in her favour with an interim order sought of CI$95,000. ii. Costs were disallowed, in particular those in relation to the Petition and discovery since February 2019. iii. An interim costs order of a lesser amount was made; 56. Counsel on behalf of the wife submitted that in view of the wife’s success in her application for costs and that the costs of the hearing of the 16th September 2019 should simply be included in the taxation of the costs of the action. ``` ```latex \section{53.} On making allowance for the possibility of reduction in the taxation process, I would consider that the amount on account should be conservatively no more than 70\% or CI\$66,001.92. \section{54.} Costs are awarded to the wife on the standard basis to be taxed if not agreed subject to the exclusions identified above. An interim payment on account of CI\$66,001.92 should be made by the husband to the wife. This should be paid within 14 days of the date of this Order. \section{COSTS IN RELATION TO THE APPLICATION} \section{55.} In respect of costs attendant upon this application, Counsel on behalf of the husband submitted that given the partial success of both parties, either there should be no order for costs or there should be a limited order for costs. Counsel noted that: \subsection{i.} The wife’s position at the costs hearing was that the costs of the entire proceedings should be awarded in her favour with an interim order sought of CI\$95,000. \subsection{ii.} Costs were disallowed, in particular those in relation to the Petition and discovery since February 2019. \subsection{iii.} An interim costs order of a lesser amount was made; \section{56.} Counsel on behalf of the wife submitted that in view of the wife’s success in her application for costs and that the costs of the hearing of the 16th September 2019 should simply be included in the taxation of the costs of the action. ```
```html 57. I accept the submissions of the husband on this aspect. Given the partial success of the 2 wife, the husband should pay 50 % of her costs in respect of this application. 4 Dated this the 14th day of February 2020 7 Honourable Justice Cheryll Richards Q.C. 8 Judge of the Grand Court ``` ```latex \textbf{57.} I accept the submissions of the husband on this aspect. Given the partial success of the wife, the husband should pay 50 % of her costs in respect of this application. \textbf{4} Dated this the 14th day of February 2020 \textbf{7} Honourable Justice Cheryll Richards Q.C. \textbf{8} Judge of the Grand Court