Read the full judgment text of FCMC 5026/2015 on BabelCite. This Family Court judgment was delivered on 8 September 2017 before Her Honour Judge Sharon D. Melloy.
District Court – Matrimonial Causes – Transfer of Proceedings – Section 17 Application – High Court Jurisdiction – Costs – Fraud Allegations – ex turpi causa – Patel v Mirza – Discretion to Transfer – Indemnity Costs – Party and Party Basis. This ruling concerns an application by the 1st Intervener, the brother of the Petitioner wife, to transfer the Respondent husband’s section 17 application to the High Court. The 1st Intervener sought to set aside the transfer of 490 shares from the Petitioner wife to the 1st Intervener. The court considered the application pursuant to Rule 32 and Rule 80 of the Matrimonial Causes Rules, Cap 179A, together with Practice Direction 15.14. The court noted that the Family Court has an unfettered discretion to order a transfer up of any application to the High Court. The fundamental principle is whether in light of the overall circumstances including the nature of the issues of fact or law involved, the proceedings or part of them are more desirable to be dealt with in the Court of First Instance. The court accepted that there must be cogent reasons why a case should be removed from the ambit of a group of specialist judges. Very large sums of money alone will rarely be sufficient to justify transfer, but there must be some special complexity in the case. The court found that the application raised very substantial points of law. Included within the substantial points of law is that it is a case which involves allegations of fraud. The margin of error on the dispute runs to many tens of millions of Dollars. The court agreed that it would be more appropriate for the Court of First Instance to consider the law on ex turpi causa, as pleaded by the husband, especially given the recent Supreme Court decision in England on this point, namely the judgment in Patel v Mirza [2016] UKSC 42. The court accepted that in an ideal world the High Court should be in a much better position to consider the discursive and intellectually invigorating debate surrounding such changes in the law. It is also clear to the court that this case has criminal overtones and perhaps other civil law ramifications. The 1st Intervener has already indicated that he is considering issuing proceedings for defamation. There are also issues of fraud to consider and the court accepts that it is likely that expert evidence may be necessary. These issues can more properly be canvassed in the High Court as opposed to the Family Court. The court rejected the husband’s concern about delay, noting that the 1st Intervener issued his application as soon as it was practicable to do so after the close of pleadings. Although quantum of itself is rarely a reason on its own to transfer a matter up to the High Court, it may nevertheless form part of the issues to be considered. In this instance there is at least US$18 million at stake – not an insubstantial amount. Consequently, the court made an order in terms of the 1st Intervener’s summons dated the 12 October 2016. The 1st Intervener had asked for costs on an indemnity basis. The court did not accept that this application falls into the category of cases where costs may be ordered on an indemnity basis. Costs should though follow the event in the normal way. Consequently, the Respondent husband shall pay the costs of and occasioned by this application on a party and party basis to be taxed if not agreed. There shall be certificate for counsel. It is further directed that the solicitors prepare a paginated bundle as set out in paragraph B2 of the Practice Direction and then proceed as set out in paragraph C. It is of note that given that this is a discreet application that it may not be necessary to include all of the documents in the First Directions Hearing Bundle. The court added that it is also accepted that this case will in all probability be re transferred back to the Family Court once the section 17 trial has been concluded. In addition, the Family Court will continue to have jurisdiction over the children related matters. In that regard it is noted that there will a call over in 2018 with respect to the children’s arrangement.
Legal issues: Transfer of proceedings to High Court · Costs of the application
Outcome: Application to transfer up to the High Court granted.
Cites 2 cases