Harre CJ
CHAMBERS
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. D. 125/94
BETWEEN:
- **EMILY MARIE BARNET** - PETITIONER
- **JASIL BARNET** - RESPONDENT
For the Petitioner:
- Mrs. Eileen Nervik
For the Respondent:
- Ms. Sheridan Brooks
HARRE C
RULING
This was a filing by the respondent husband for leave to file an answer to the petition out of time in accordance with Rule 11 (c) of the Civil Causes Rules. In fact, Rule 11 (c) relates to the grant of leave to give notice of intention to defend rather than to file a pleading. But for the purpose of this ruling, nothing turns on the matter.
This happened on 2nd November 1994, accompanied by a draft acknowledgment of service in the usual manner. The respondent was invited to confirm whether or not he intended to oppose the proceedings. That was not completed but on 1st November appearance by the respondent's attorney was entered on his behalf generally. There then ensued correspondence between the attorneys about settling the ancillary matters. All was hestos and them Ma
2
agreed except for the method of dealing with the matrimonial home. A
proposal had been put forward on the 7th November. Correspondence
ensued but negotiations came to an end on receipt by the respondent's
attorney of a letter dated 10th February 1995 from the petitioner's.
It read as follows
"I acknowledge receipt of your letter dated
7th February 1995. I have spoken with my
client in relation to your letter of 9th
January 1995. My clients states that at the
moment she is not in agreement with the
proposals as set forth in particular those in
relation to the former matrimonial home.
Unfortunately, it seems like this matter may
have to be decided on by the court. If that
is the case, the petition which is due to be
heard on the 24th February 1995 will only be
seeking to have the petition proved but that
the pronouncement be deferred pending the
resolution of the ancillary matters in
main chambers".
The resi ed he of ancillary matters could be settled and completely
disposed the hearing date 24th February it was set without
objecti siindeed he is his side for hearing as an undefended divorce. Now he
says that he is afraid that if he allows the petition to go through
unchallenged how may be prejudiced in the ancillary matters and he has
therefore decided to contest the contents of the petition. A
central concern in that petition is that he has never held a steady
job, and his t the marriage financially.
The wife ing of tion is that the thread which has run through all the
respond oposals is the underlying threat that if they were not
agreed terms he would file an answer and cross-petition in
order to
ng the matter.
The grad leave to file a notice of intention to defend out of
time is atat
o'den
enutre
nton a
The first is **Collins v. Collins** (1972) 2 ALL. E.R. 658. In that case an agreement had actually been reached on the ancillary matters and in view of those arrangements the wife signed the acknowledgment of service stating that she did not intend to defend the proceedings. The cause was set down in the undefended list but shortly before the hearing date the husband repudiated the agreement. Consequently the wife applied for leave to file an answer out of time containing a cross prayer. The view of the Court of Appeal is succinctly set out in the following passage from the headnote:
"If the wife were to file an answer and obtain a decree, or a cross-decree, it would make absolutely no difference to her financial position at all; her right to periodical payments or other ancillary relief would be completely preserved if the husband were to be granted a decree. All the controversies which there might be about the circumstances in which the parties had separated could be fully investigated on the wife's claim for also periodical payments and other relief."
Davies or legal observed that the granting of leave might well involve a good 'liesent' expense "either to the parties or, if legal aid, comes in the r case it is already known that the respondent has applied y ma Engal aid.
The other case is **Spill and Spill** (1972) 3 ALL. ER. 9. In that case all respondent in his acknowledgment of service said that he did not intend to defend. He changed his mind after the negotiations on ancil couna ters broke down. He took out a summons for leave to file an exercise out of time, not supported by an affidavit containing his real 'a denial of the wife's allegation or a draft answer. The app nst the judge's refusal of his application was dismiss court took the view that the respondent was seeking discreet relief without showing adequate ground why the court should not that discretion in his favour. Once again it was pointed prLJ that the respondent would have ample opportunity to place before ed also t any submissions that he wished to make if and when i oso i exaller
questions arose thereafter as to the distribution or apportionment of
property.
The husband in the present case has a better argument in some respects
than either of the applicants in Collins and Collins and Spill and
Spill. He has never repudiated any agreement and and he never said in
terms that he did not wish to defend. Indeed he now says that it was
always his intention to do so if ancillary matters could not be
agreed. He has given his reasons for now wishing to defend, and his
layman's perception that in view of the allegation in the petition
that he had failed to contribute to the marriage financially he might
be in some way prejudiced in relation to ancillary matters is
perfectly understandable. It is also groundless. He may be sure
that, a. al c und hearing in Chambers to put his case fully with regard to
his fine baf ag claims arising out of the division of the matrimonial
property titiorci is the normal and the routine way of dealing with such
matters at theth. If in every such case the petition ought to be
defendedescomplelours would be spending a great deal of their time in
dealing as to titey pointless in cases such as this where both are
agreed stmons marriage has irretrievably broken down.
It was
the reasons that I refused the respondent's application
for lea an answer and cross-petition out of time, with costs
of the al Cau in the cause.
Although
is not directly in point, during the course of the
hearing
cation arose about the meaning of Rule 11 (c) of the
Matrimonial Rules. To the extent relevant Rule 11 reads as
follows
d y.s HA notice of intention to defend may be given
w ipaom(a).....
o peanly(c) at any time, by leave of the court prior to the
-h veth date fixed for trial".
asu
ni fo
It is quite clear that leave of the court must be obtained prior to the date fixed for trial and not sought on that date and least of all at the time when the case comes up for hearing undefended. It seems to me to be perfectly sensible as well as being the clear and ambiguous meaning of the text. If leave is given before the date of trial the matter will be taken out of the undefended list and nobody's time will have been wasted.
**February 1995**
**G.E. Harre**
**Chief Justice**