W v. W

HCMC000055A/1968

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 55 OF 1968

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ACTION NO. 116 OF 1968

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Coram: Briggs, J.

Date of Judgment: 26 February 1969

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REASONS FOR DECISION

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1. I delivered judgment in this case on 31st January 1969 when I reserved the question of costs for argument at a later date.

2. The matter came before me in Chambers on 25th February 1969. The petitioner was successful. She was granted the decree for which she prayed. And the cross-petition of the respondent was dismissed.

3. In the absence of special circumstances a successful litigant should receive his costs. The Court has however a discretion to deprive such a litigant of his costs. Such discretion should only be exercised against a successful litigant on grounds closely connected with the case.

4. I will deal with the costs of the petition for a decree of nullity first. It has been urged on behalf of the respondent that the petitioner should be deprived of her costs. It was pointed out that in my judgment I had expressed disapproval of her conduct at least from July 1967 down to the date of the petition. And further that I had found as a fact that no part of her evidence could be believed unless it was corroborated by an independent witness. This is true and such matters might in a suitable case be grounds for the exercise of the discretion of a judge so as to deprive that person of his costs if he were the successful party.

5. However this was a nullity petition and the central fact in issue was the simple one of whether or not the marriage had been consummated. The conduct of the wife during the relevant time referred to above was only ancillary to that main issue.

6. It is true that the petitioner was an untruthful witness. But her lies were artless and detectable and again did not detract from or enhance the proof of the main issue in the case. I see no reason therefore exercise my discretion so as to deprive the petitioner of her costs.

7. The petitioner must also have her costs on the cross-petition for restitution of conjugal rights. I would point out to the Taxing Master that in my view the costs of the cross-petition were very small. It was agreed from the start by the parties that the result of the cross-petition would depend on the result of the petition for nullity. And no additional time was expended upon it in court.

8. The petitioner therefore is to have her costs both on the petition for nullity and on the cross-petition for restitution of conjugal rights. Such costs are to be taxed.

9. The costs of the respondent are to be taxed in accordance with regulation 15 of the Legal Aid Regulations. Section 19 of the Legal Aid Ordinance of course applies in this case.

10. There is one final matter. Two Medical Inspectors were appointed by the Court and they have, I understand, rendered bills which are by no means small. The parties, I was told, applied for their appointment jointly but the individual doctors were chosen by the Registrar without objection being raised by the parties. It seems that no agreement was made as to their fees. Before the trial solicitors for the petitioner made it clear that the medical inspectors would not be called in support of the petition. At the trial they were treated as if they had been called by the Court and questions were asked of them by counsel for both parties.

11. Mr. Bernacchi suggested that they should be treated as though they were Court experts. Unfortunately they were not appointed under Order 40 which therefore does not apply. Nor have we a direction such as is printed on page 1739 of Rayden on Divorce (10th Edition) which lays down a scale of fees.

12. In this case I must leave the amount of the fees of the two Inspectors to the Taxing Master to decide. The cost of any examination and the preparation of a report of each Inspector is to be borne jointly and severally by the parties. The cost of the attendance of the Inspectors is to be borne by the respondent.

26 FEB 1969

Representation:

O.V. Cheung, Q.C. & de Basto, Q.C. (Stewart & Co.) for Wife.

Bernacchi, Q.C. & Asome (P.H. Sin & Co.) for Husband.